Exhibit 4(b)
EXECUTION COPY
U.S. $500,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May __, 2000
Among
ENTERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
CITIBANK, N.A.
as Administrative Agent
SALOMON SMITH BARNEY INC.
as Sole Lead Arranger
and
THE BANK OF NEW YORK
as Syndication Agent
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. Certain Defined Terms. 1
SECTION 1.02. Computation of Time Periods. 10
SECTION 1.03. Accounting Terms. 10
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 10
SECTION 2.01. The Contract Advances. 10
SECTION 2.02. Making the Contract Advances. 11
SECTION 2.03. The Auction Advances. 12
SECTION 2.04. Fees. 16
SECTION 2.05. Adjustment of the Commitments. 16
SECTION 2.06. Repayment of Contract Advances. 17
SECTION 2.07. Interest on Contract Advances. 17
SECTION 2.08. Additional Interest on Eurodollar Rate
Advances. 17
SECTION 2.09. Interest Rate Determination. 17
SECTION 2.10. Conversion of Contract Advances. 18
SECTION 2.11. Prepayments. 19
SECTION 2.12. Increased Costs. 19
SECTION 2.13. Illegality. 20
SECTION 2.14. Payments and Computations. 20
SECTION 2.15. Taxes. 22
SECTION 2.16. Sharing of Payments, Etc. 23
SECTION 2.17. Extension of Termination Date. 24
ARTICLE III CONDITIONS OF LENDING 25
SECTION 3.01. Conditions Precedent to Initial Advances. 25
SECTION 3.02. Conditions Precedent to Each Contract
Borrowing. 26
SECTION 3.03. Conditions Precedent to Each Auction
Borrowing. 27
SECTION 3.04. Conditions Precedent to Each Extension of the
Revolving Period. 28
ARTICLE IV REPRESENTATIONS AND WARRANTIES 28
SECTION 4.01. Representations and Warranties of the
Borrower. 28
ARTICLE V COVENANTS OF THE BORROWER 30
SECTION 5.01. Affirmative Covenants. 30
SECTION 5.02. Negative Covenants. 33
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES 35
SECTION 6.01. Events of Default. 35
SECTION 6.02. Remedies. 36
ARTICLE VII THE AGENT 37
SECTION 7.01. Authorization and Action. 37
SECTION 7.02. Administrative Agent's Reliance, Etc. 37
SECTION 7.03. Citibank and Affiliates. 38
SECTION 7.04. Lender Credit Decision. 38
SECTION 7.05. Indemnification. 38
SECTION 7.06. Successor Administrative Agent. 38
ARTICLE VIII MISCELLANEOUS 39
SECTION 8.01. Amendments, Etc. 39
SECTION 8.02. Notices, Etc. 40
SECTION 8.03. No Waiver; Remedies. 40
SECTION 8.04. Costs and Expenses; Indemnification. 40
SECTION 8.05. Right of Set-off. 41
SECTION 8.06. Binding Effect. 42
SECTION 8.07. Assignments and Participations. 42
SECTION 8.08. Governing Law. 46
SECTION 8.09. Consent to Jurisdiction; Waiver of
Jury Trial. 46
SECTION 8.10. Execution in Counterparts. 46
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule II - Commitment Schedule
EXHIBITS
Exhibit A-1 - Form of Contract Note
Exhibit A-2 - Form of Auction Note
Exhibit B-1 - Form of Notice of Contract Borrowing
Exhibit B-2 - Form of Notice of Auction Borrowing
Exhibit B-3 - Form of Notice of Conversion
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Opinion of Special New York
Counsel to the Administrative Agent
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 18, 2000
ENTERGY CORPORATION, a Delaware corporation (the
"Borrower"), the banks (the "Banks") listed on the signature
pages hereof, and Citibank, N.A. ("Citibank"), as administrative
agent (the "Administrative Agent") for the Lenders hereunder,
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Advance" means a Contract Advance or an Auction
Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person.
"Agreement" means this Credit Agreement, as amended,
supplemented or modified from time to time.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the
case of an Auction Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Auction
Advance.
"Applicable Margin" means, for any Eurodollar Rate
Advance or any Base Rate Advance, (i) on any date the
Utilization Percentage equals or is less than 50% (without
giving effect to any Auction Reduction), the Eurodollar
Margin or Base Rate Margin interest rate per annum set forth
below in the columns identified as Level 1, Level 2,
Level 3, Level 4 and Level 5, and (ii) on any date the
Utilization Percentage exceeds 50% (without giving effect to
any Auction Reduction), the Utilized Eurodollar Margin or
Utilized Base Rate Margin interest rate per annum set forth
below in the columns identified as Level 1, Level 2,
Level 3, Level 4 and Level 5, in each case, determined by
reference to the Relevant Rating.
Level 1 Level 2 Level 3 Level 4 Level 5
Relevant Relevant Relevant Relevant Relevant
Ratings Ratings Ratings Ratings Ratings
Less than Less than Less than below
S&P A- or Level 1 Level 2 Level 3 BBB-*
better and BBB+ and BBB and BBB- or
Moody's and or better or better or better below
A3 or and and and Baa3*
better Baa1 or Baa2 or Baa3 or
better better better
Interest Rate Per Annum
Eurodollar Margin 0.400% 0.500% 0.550% 0.800% 1.750%
Base Rate Margin 0.000% 0.000% 0.000% 0.000% 0.750%
Utilized Eurodollar 0.525% 0.625% 0.675% 1.050% 2.000%
Margin
Utilized Base Rate 0.000% 0.000% 0.000% 0.050% 1.000%
Margin
*or unrated
Any change in the Applicable Margin will be effective as of
the date on which S&P or Moody's, as the case may be,
announces the applicable change in any Senior Debt Rating.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee of that
Lender, and accepted by the Administrative Agent, in
substantially the form of Exhibit C hereto.
"Auction Advance" means an advance by a Lender to the
Borrower as part of an Auction Borrowing resulting from the
auction bidding procedure described in Section 2.03.
"Auction Borrowing" means a borrowing consisting of
simultaneous Auction Advances from each of the Lenders whose
offer to make one or more Auction Advances as part of such
borrowing has been accepted by the Borrower under the
auction bidding procedure described in Section 2.03.
"Auction Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of
the Borrower to such Lender resulting from an Auction
Advance made by such Lender.
"Auction Reduction" has the meaning specified in
Section 2.01.
"Base Rate" means, for any period, a fluctuating
interest rate per annum at all times equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate in effect
from time to time.
"Base Rate Advance" means a Contract Advance that bears
interest as provided in Section 2.07(a).
"Borrowing" means a Contract Borrowing or an Auction
Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Capitalization" means, as of any date of
determination, with respect to the Borrower and its
subsidiaries determined on a consolidated basis, an amount
equal to the sum of (i) the total principal amount of all
Debt of the Borrower and its subsidiaries outstanding on
such date, (ii) Consolidated Net Worth as of such date and
(iii) to the extent not otherwise included in
Capitalization, all preferred stock and other preferred
securities of the Borrower and its subsidiaries, including
preferred securities issued by any subsidiary trust,
outstanding on such date.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated Net Worth" means the sum of the capital
stock (excluding treasury stock and capital stock subscribed
for and unissued) and surplus (including earned surplus,
capital surplus and the balance of the current profit and
loss account not transferred to surplus) accounts of the
Borrower and its subsidiaries appearing on a consolidated
balance sheet of the Borrower and its subsidiaries prepared
as of the date of determination in accordance with generally
accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to
in Section 4.01(e), after eliminating all intercompany
transactions and all amounts properly attributable to
minority interests, if any, in the stock and surplus of
subsidiaries.
"Contract Advance" means an advance by a Lender to the
Borrower as part of a Contract Borrowing and refers to a
Base Rate Advance or a Eurodollar Rate Advance, each of
which shall be a "Type" of Contract Advance.
"Contract Borrowing" means a borrowing consisting of
simultaneous Contract Advances of the same Type made by each
of the Lenders pursuant to Section 2.01 or Converted
pursuant to Section 2.09 or 2.10.
"Contract Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from
the Contract Advances made by such Lender.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Contract Advances of one Type into Contract
Advances of another Type or the selection of a new, or the
renewal of the same, Interest Period for Eurodollar Rate
Advances pursuant to Section 2.09 or 2.10.
"Debt" of any Person means (without duplication) all
liabilities, obligations and indebtedness (whether
contingent or otherwise) of such Person (i) for borrowed
money or evidenced by bonds, debentures, notes, or other
similar instruments, (ii) to pay the deferred purchase price
of property or services (other than such obligations
incurred in the ordinary course of business on customary
trade terms, provided that such obligations are not more
than 30 days past due), (iii) as lessee under leases which
shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases,
(iv) under reimbursement agreements or similar agreements
with respect to the issuance of letters of credit (other
than obligations in respect of letters of credit opened to
provide for the payment of goods or services purchased in
the ordinary course of business), (v) under any Guaranty
Obligations and (vi) liabilities in respect of unfunded
vested benefits under plans covered by Title IV of ERISA.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the
Administrative Agent.
"Eligible Assignee" means a Person (a) (i) that is
(A) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in
excess of $500,000,000; (B) a commercial bank organized
under the laws of any other country which is a member of the
OECD, or a political subdivision of any such country, and
having total assets in excess of $500,000,000, provided that
such bank is acting through a branch or agency located in
the United States or another country which is also a member
of OECD; or (C) a Lender or a commercial bank Affiliate of
any Lender immediately prior to an assignment and (ii) whose
long-term public senior debt securities are rated at least
"BBB-" by S&P or at least "Baa3" by Moody's; or (b) that is
approved by the Borrower (whose approval shall not be
unreasonably withheld) and the Administrative Agent.
"Entergy Arkansas" means Entergy Arkansas, Inc., an
Arkansas corporation.
"Entergy Gulf States" means Entergy Gulf States, Inc.,
a Texas corporation.
"Entergy Louisiana" means Entergy Louisiana, Inc., a
Louisiana corporation.
"Entergy Mississippi" means Entergy Mississippi, Inc.,
a Mississippi corporation.
"Entergy New Orleans" means Entergy New Orleans, Inc.,
a Louisiana corporation.
"Environmental Laws" means any federal, state or local
laws, ordinances or codes, rules, orders, or regulations
relating to pollution or protection of the environment,
including, without limitation, laws relating to hazardous
substances, laws relating to reclamation of land and
waterways and laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or
wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollution, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder, each
as amended and modified from time to time.
"ERISA Affiliate" of a person or entity means any trade
or business (whether or not incorporated) that is a member
of a group of which such person or entity is a member and
that is under common control with such person or entity
within the meaning of Section 414 of the Internal Revenue
Code of 1986, and the regulations promulgated and rulings
issued thereunder, each as amended or modified from time to
time.
"ERISA Plan" means an employee benefit plan maintained
for employees of any Person or any ERISA Affiliate of such
Person subject to Title IV of ERISA.
"ERISA Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to PBGC), or (ii) the
withdrawal of the Borrower or any of its ERISA Affiliates
from an ERISA Plan during a plan year in which the Borrower
or any of its ERISA Affiliates was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (iii) the
filing of a notice of intent to terminate an ERISA Plan or
the treatment of an ERISA Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate an ERISA Plan by the PBGC or to
appoint a trustee to administer any ERISA Plan, or (v) any
other event or condition that would constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer any ERISA Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for the Interest Period for
each Eurodollar Rate Advance made as part of the same
Contract Borrowing, an interest rate per annum equal to the
average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the
Reference Banks in London, England, to prime banks in the
London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period
in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance made as part of such Contract
Borrowing and for a period equal to such Interest Period.
The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance made as part of the same Contract
Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by
the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means a Contract Advance that
bears interest as provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Lender for
the Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Credit Agreement" means that certain Credit
Agreement, dated as of September 17, 1998, among the
Borrower, certain banks and Citibank, N.A., as agent for
such banks, as amended and restated by the Amendment and
Restatement, dated as of September 15, 1999.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain letter agreement, dated
as of April 6, 2000, among the Borrower, the Administrative
Agent and Salomon Smith Barney Inc.
"Guaranty Obligations" means (i) direct or indirect
guaranties in respect of, and obligations to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, Debt of any Person and (ii) other
guaranty or similar obligations in respect of the financial
obligations of others, including, without limitation,
Support Obligations.
"Interest Period" means, for each Contract Advance made
as part of the same Contract Borrowing, the period
commencing on the date of such Contract Advance or the date
of the Conversion of any Contract Advance into such a
Contract Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be 1, 2, 3 or 6 months in
the case of a Eurodollar Rate Advance, as the Borrower may,
upon notice received by the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for Contract Advances made as part of the same Contract
Borrowing shall be of the same duration; and
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended
to occur on the next succeeding Business Day, provided,
in the case of any Interest Period for a Eurodollar Rate
Advance, that if such extension would cause the last
day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day.
"Junior Subordinated Debentures" means any junior
subordinated deferrable interest debentures issued by any
Significant Subsidiary or Entergy New Orleans from time to
time.
"Lenders" means the Banks listed on the signature pages
hereof and each Person that shall become a party hereto
pursuant to Section 8.07.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its subsidiaries shall be
deemed to own, subject to a Lien, any asset that it has
acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Majority Lenders" means at any time Lenders holding at
least 66-2/3% of the then aggregate unpaid principal amount
of the Contract Notes held by Lenders, or, if no such
principal amount is then outstanding, Lenders having at
least 66-2/3% of the Commitments (without giving effect to
any termination in whole of the Commitments pursuant to
Section 6.02), provided, that for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall
be included in (i) the Lenders holding such amount of the
Contract Advances or having such amount of the Commitments
or (ii) determining the aggregate unpaid principal amount of
the Contract Advances or the total Commitments.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
three plan years made or accrued an obligation to make
contributions.
"Non-Recourse Debt" means any Debt of any subsidiary of
the Borrower that does not constitute Debt of the Borrower,
any Significant Subsidiary or Entergy New Orleans.
"Note" means a Contract Note or an Auction Note.
"Notice of Contract Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Auction Borrowing" has the meaning specified
in Section 2.03(a).
"OECD" means the Organization for Economic Cooperation
and Development.
"PBGC" means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions
under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency
thereof.
"Prepayment Event" means the occurrence of any event or
the existence of any condition under any agreement or
instrument relating to any Debt of the Borrower or of a
Significant Subsidiary that, in either case, is outstanding
in a principal amount in excess of $50,000,000 in the
aggregate, which occurrence or event results in the
declaration of such Debt being due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof.
"Reference Banks" means Citibank, The Bank of New York
and Bank One, NA.
"Register" has the meaning specified in
Section 8.07(c).
"Relevant Rating" means Senior Debt Ratings of the
Significant Subsidiary (other than SERI) having the second
lowest Senior Debt Ratings from Moody's and S&P of all
Significant Subsidiaries (other than SERI).
"Reportable Event" has the meaning assigned to that
term in Title IV of ERISA.
"Revolving Period" means the period beginning the date
hereof and ending on May 17, 2001, or such later date as to
which the Lenders may from time to time agree pursuant to
Section 2.17.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any
successor thereto.
"SEC" means the United States Securities and Exchange
Commission.
"SEC Order" has the meaning specified in
Section 3.01(a)(iii).
"Senior Debt Rating" means, as to any Person, the
rating assigned by Moody's or S&P to the senior secured long-
term debt of such Person.
"SERI" means Systems Energy Resources, Inc., an
Arkansas corporation.
"Significant Subsidiary" means Entergy Arkansas,
Entergy Gulf States, Entergy Louisiana, Entergy Mississippi,
SERI and any other domestic regulated utility subsidiary of
the Borrower: (i) the total assets (after intercompany
eliminations) of which exceed 5% of the total assets of the
Borrower and its subsidiaries or (ii) the net worth of which
exceeds 5% of the Consolidated Net Worth of the Borrower and
its subsidiaries, in each case as shown on the most recent
audited consolidated balance sheet of the Borrower and its
subsidiaries.
"Support Obligations" means any financial obligation,
contingent or otherwise, of any Person guaranteeing or
otherwise supporting any Debt or other obligation of any
other Person in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such
Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the
purpose of assuring the owner of such Debt of the payment of
such Debt, (iii) to maintain working capital, equity
capital, available cash or other financial statement
condition of the primary obligor so as to enable the primary
obligor to pay such Debt, (iv) to provide equity capital
under or in respect of equity subscription arrangements so
as to assure any Person with respect to the payment of such
Debt or the performance of such obligation, or (v) to
provide financial support for the performance of, or to
arrange for the performance of, any non-monetary obligations
or non-funded debt payment obligations (including, without
limitation, guaranties of payments under power purchase or
other similar arrangements) of the primary obligor.
"Term Election" has the meaning assigned to that term
in Section 2.17(a).
"Termination Date" means the earlier to occur of
(i) the last day of the Revolving Period, or, if the
Borrower shall have made the Term Election, the first
anniversary of the last day of the Revolving Period, and
(ii) the earlier date of termination in whole of the
Commitments pursuant to Section 2.05 or Section 6.02 hereof.
"Utilization Percentage" means, as of any time for the
determination thereof, the percentage obtained by dividing
the aggregate outstanding Advances by the Aggregate
Commitments then in effect.
"Yield" means, for any Auction Advance, the effective
rate per annum at which interest on such Auction Advance is
payable, computed on the basis of a year of 360 days for the
actual number of days (including the first day but excluding
the last day) occurring in the period for which such
interest is payable.
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from
a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means
"to but excluding".
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section 4.01(e) hereof.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Contract Advances.
Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Contract Advances to the Borrower
from time to time on any Business Day during the period from the
date hereof until the Termination Date in an aggregate amount not
to exceed at any time outstanding the amount set opposite such
Lender's name on Schedule II hereto or, if such Lender has
entered into any Assignment and Acceptance, set forth for such
Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c), as such amount may be reduced
pursuant to Section 2.05 or Section 2.17 (such Lender's
"Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount of the Auction Advances
then outstanding and such deemed use of the aggregate amount of
the Commitments shall be applied to the Lenders ratably according
to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being an "Auction Reduction"). Each
Contract Borrowing shall be in an amount not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof and shall
consist of Contract Advances of the same Type and, in the case of
Eurodollar Rate Advances or, having the same Interest Period made
or Converted on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender's
Commitment, the Borrower may from time to time borrow, prepay
pursuant to Section 2.11 and reborrow under this Section 2.01;
provided, however, that at no time may the principal amount
outstanding hereunder exceed the aggregate amount of the
Commitments.
SECTION 2.02. Making the Contract Advances.
(a) Each Contract Borrowing shall be made on notice, given
(i) in the case of a Contract Borrowing comprising Eurodollar
Rate Advances, not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed Contract
Borrowing, and (ii) in the case of a Contract Borrowing
comprising Base Rate Advances, not later than 11:00 A.M. (New
York City time) on the date of the proposed Contract Borrowing,
by the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof. Each such notice of a
Contract Borrowing (a "Notice of Contract Borrowing") shall be
transmitted by telecopier, telex or cable, confirmed immediately
in writing, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (A) date of such Contract
Borrowing, (B) Type of Contract Advances to be made in connection
with such Contract Borrowing, (C) aggregate amount of such
Contract Borrowing, and (D) in the case of a Contract Borrowing
comprising Eurodollar Rate Advances, initial Interest Period for
each such Contract Advance. Each Lender shall, before (x) 12:00
noon (New York City time) on the date of any Contract Borrowing
comprising Eurodollar Rate Advances, and (y) 1:00 P.M. (New York
City time) on the date of any Contract Borrowing comprising Base
Rate Advances, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address
referred to in Section 8.02, in same day funds, such Lender's
ratable portion of such Contract Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
(b) Each Notice of Contract Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Notice of Contract
Borrowing requesting Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before
the date specified in such Notice of Contract Borrowing for such
Contract Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the
Contract Advance to be made by such Lender as part of such
Contract Borrowing when such Contract Advance, as a result of
such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Contract Borrowing that
such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Contract Borrowing, the
Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such
Contract Borrowing in accordance with subsection (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower (following the
Administrative Agent's demand on such Lender for the
corresponding amount) severally agree to repay to the
Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to
Contract Advances made in connection with such Contract Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's Contract Advance as part of such Contract Borrowing for
purposes of this Agreement.
(d) The failure of any Lender to make the Contract Advance to be
made by it as part of any Contract Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to make its
Contract Advance on the date of such Contract Borrowing, but no
Lender shall be responsible for the failure of any other Lender
to make the Contract Advance to be made by such other Lender on
the date of any Contract Borrowing.
SECTION 2.03. The Auction Advances.
(a) Each Lender severally agrees that the Borrower may request
Auction Borrowings under this Section 2.03 from time to time on
any Business Day during the period from the date hereof until the
date occurring 31 days prior to the earlier to occur of the last
day of the Revolving Period and the Termination Date in the
manner set forth below; provided that, following the making of
each Auction Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any
Auction Reduction).
(i) The Borrower may request an Auction Borrowing by delivering
to the Administrative Agent (A) by telecopier, telex or cable,
confirmed immediately in writing, a notice of an Auction
Borrowing (a "Notice of Auction Borrowing"), in substantially the
form of Exhibit B-2 hereto, specifying the date and aggregate
amount of the proposed Auction Borrowing, the maturity date for
repayment of each Auction Advance to be made as part of such
Auction Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such Auction
Borrowing or later than the earliest to occur of (1) 180 days
after the date of the proposed Auction Borrowing (2) the last day
of the Revolving Period and (3) the Termination Date), the
interest payment date or dates relating thereto (which shall
occur at least every 90 days), and any other terms to be
applicable to such Auction Borrowing, not later than 10:00 A.M.
(New York City time) (x) at least one Business Day prior to the
date of the proposed Auction Borrowing, if the Borrower shall
specify in the Notice of Auction Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per
annum and (y) at least four Business Days prior to the date of
the proposed Auction Borrowing, if the Borrower shall specify in
the Notice of Auction Borrowing the basis (such as a quoted
London interbank offered rate or the Federal Funds Rate) to be
used by the Lenders in determining the rates of interest to be
offered by them and (B) payment in full to the Administrative
Agent of the aggregate auction administration fee specified in
Section 2.04(b) hereof. The Administrative Agent shall in turn
promptly notify each Lender of each request for an Auction
Borrowing received by it from the Borrower by sending such Lender
a copy of the related Notice of Auction Borrowing.
(ii) Each Lender may, in its sole discretion, if it elects to
do so, irrevocably offer to make one or more Auction Advances to the
Borrower as part of such proposed Auction Borrowing at a rate or
rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall
give prompt notice thereof to the Borrower), before 10:00 A.M.
(New York City time) (A) on the date of such proposed Auction
Borrowing, in the case of a Notice of Auction Borrowing delivered
pursuant to clause (A)(x) of paragraph (i), above, and (B) three
Business Days before the date of such proposed Auction Borrowing,
in the case of a Notice of Auction Borrowing delivered pursuant
to clause (A)(y) of paragraph (i), above, of the minimum amount
and maximum amount of each Auction Advance that such Lender would
be willing to make as part of such proposed Auction Borrowing
(which amounts may, subject to the proviso to the first sentence
of this Section 2.03(a), exceed such Lender's Commitment), the
rate or rates of interest therefor, the basis, rate and margin
used by such Lender (if applicable) in determining the rate or
rates of interest so offered and the Yield (if different from
such rate or rates), the interest period relating thereto and
such Lender's Applicable Lending Office with respect to such
Auction Advance; provided that if the Administrative Agent in its
capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer before
9:00 A.M. (New York City time) on the date on which notice of
such election is to be given to the Administrative Agent by the
other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Administrative Agent,
before 10:00 A.M. (New York City time) on the date on which
notice of such election is to be given to the Administrative
Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Auction Advance as part of
such Auction Borrowing; provided that the failure by any Lender
to give such notice shall not cause such Lender to be obligated
to make any Auction Advance as part of such proposed Auction
Borrowing.
(iii) The Borrower shall, in turn, (A) before 11:00 A.M.
(New York City time) on the date of such proposed Auction Borrowing,
in the case of a Notice of Auction Borrowing delivered pursuant
to clause (A)(x) of paragraph (i), above and (B) before 1:00 P.M.
(New York City time) three Business Days before the date of such
proposed Auction Borrowing, in the case of a Notice of Auction
Borrowing delivered pursuant to clause (A)(y) of paragraph (i),
above, either
(1) cancel such Auction Borrowing by giving the
Administrative Agent notice to that effect, or
(2) irrevocably accept one or more of the offers made
by any Lender or Lenders pursuant to paragraph (ii) above,
in its sole discretion, subject only to the provisions of this
paragraph (iii), by giving notice to the Administrative Agent of
the amount of each Auction Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less than
the maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such Auction
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Auction Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above
by giving the Administrative Agent notice to that effect;
provided, however, that (w) the Borrower shall not accept an
offer made pursuant to paragraph (ii) above, at any Yield if the
Borrower shall have, or shall be deemed to have, rejected any
other offer made pursuant to paragraph (ii) above, at a lower
Yield, (x) if the Borrower declines to accept, or is otherwise
restricted by the provisions of this Agreement from accepting,
the maximum aggregate principal amount of Auction Borrowings
offered at the same Yield pursuant to paragraph (ii) above, then
the Borrower shall accept a pro rata portion of each offer made
at such Yield, based as nearly as possible on the ratio of the
aggregate principal amount of such offers to be accepted by the
Borrower to the maximum aggregate principal amount of such offers
made pursuant to paragraph (ii) above (rounding up or down to the
next higher or lower multiple of $1,000,000), (y) no offer made
pursuant to paragraph (ii) above shall be accepted unless the
Auction Borrowing in respect of such offer is in an integral
multiple of $1,000,000 and the aggregate amount of such offers
accepted by the Borrower is equal to at least $5,000,000, and
(z) no offer made pursuant to paragraph (ii) above shall be
accepted at any interest rate in excess of the Base Rate then in
effect plus 2% per annum (or such higher rate as may be permitted
by applicable law, regulation or order).
Any offer or offers made pursuant to paragraph (ii) above not
expressly accepted or rejected by the Borrower in accordance
with this paragraph (iii) shall be deemed to have been
rejected by the Borrower.
(iv) If the Borrower notifies the Administrative Agent that such
Auction Borrowing is canceled pursuant to clause (1) of
paragraph (iii) above, the Administrative Agent shall give prompt
notice thereof to the Lenders and such Auction Borrowing shall
not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to clause (2) of paragraph (iii)
above, the Administrative Agent shall in turn promptly notify
(A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such
Auction Borrowing and whether or not any offer or offers made by
such Lender pursuant to paragraph (ii) above have been accepted
by the Borrower, (B) each Lender that is to make an Auction
Advance as part of such Auction Borrowing of the amount of each
Auction Advance to be made by such Lender as part of such Auction
Borrowing, and (C) each Lender that is to make an Auction Advance
as part of such Auction Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each
Lender that is to make an Auction Advance as part of such Auction
Borrowing shall, before 12:00 noon (New York City time) on the
date of such Auction Borrowing specified in the notice received
from the Administrative Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall have
received notice from the Administrative Agent pursuant to
clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.02 such Lender's
portion of such Auction Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III
and after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
Promptly after each Auction Borrowing the Administrative Agent
will notify each Lender of the amount of the Auction Borrowing,
the consequent Auction Reduction and the dates upon which such
Auction Reduction commenced and will terminate.
(vi) If the Borrower accepts one or more of the offers made by
any Lender pursuant to clause (B) of paragraph (iii) above, the
Borrower shall indemnify such Lender against any loss, cost or
expense incurred by such Lender as a result of any failure by the
Borrower to fulfill on or before the date specified for such
Auction Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by such Lender to fund the
Auction Advance to be made by such Lender as part of such Auction
Borrowing when such Auction Advance, as a result of such failure,
is not made on such date.
(b) Each Auction Borrowing shall be in an amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Auction Borrowing, the
Borrower shall be in compliance with the limitation set forth in
the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under
this Section 2.03, repay or prepay pursuant to subsection (d)
below, and reborrow under this Section 2.03, provided that an
Auction Borrowing shall not be made within three Business Days of
the date of any other Auction Borrowing.
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made an Auction Advance, or each
other holder of an Auction Note, on the maturity date of each
Auction Advance (such maturity date being that specified by the
Borrower for repayment of such Auction Advance in the related
Notice of Auction Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Auction Note
evidencing such Auction Advance), the then unpaid principal
amount of such Auction Advance. The Borrower shall have no right
to prepay any principal amount of any Auction Advance unless, and
then only on the terms, specified by the Borrower for such
Auction Advance in the related Notice of Auction Borrowing
delivered pursuant to subsection (a)(i)(A) above and set forth in
the Auction Note evidencing such Auction Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Auction Advance from the date of such Auction
Advance to the date the principal amount of such Auction Advance
is repaid in full, at the rate of interest for such Auction
Advance specified by the Lender making such Auction Advance in
its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Auction Advance in the
related Notice of Auction Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the Auction Note
evidencing such Auction Advance; provided, however, that, if and
for so long as a Prepayment Event or an Event of Default shall
have occurred and be continuing, the unpaid principal amount of
each Auction Advance shall (to the fullest extent permitted by
law) bear interest until paid in full at a rate per annum equal
at all times to the Base Rate plus 2% per annum, payable upon
demand.
(f) The indebtedness of the Borrower resulting from each Auction
Advance made to the Borrower as part of an Auction Borrowing
shall be evidenced by a separate Auction Note of the Borrower
payable to the order of the Lender making such Auction Advance.
SECTION 2.04. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee on the average daily
amount of such Lender's Commitment (without giving effect to any
Auction Reduction) from the date hereof in the case of each Bank,
and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender, in the case of
each other Lender, until the earlier to occur of the Termination
Date and, in the case of the termination in whole of a Lender's
Commitment pursuant to Section 2.05, the date of such
termination, payable on the last day of each March, June,
September and December during such period, and on the Termination
Date at the rate per annum set forth below in the columns
identified as Level 1, Level 2, Level 3, Level 4, and Level 5,
determined by reference to the Relevant Rating:
Level 1 Level 2 Level 3 Level 4 Level 5
Relevant Relevant Relevant Relevant Relevant
Ratings Ratings Ratings Ratings Ratings
A- or Less than Less than Less than below BBB-*
S&P better Level 1 Level 2 Level 3 or
Moody's and and BBB+ and BBB and BBB- below
A3 or or better or better or better Baa3*
better and Baa1 and Baa2 and Baa3
or better or better or better
Rate Per Annum
Facility Fee 0.100% 0.125% 0.150% 0.200% 0.250%
*or unrated
Any change in the facility fee will be effective as of the date
on which S&P or Moody's, as the case may be, announces the
applicable change in any Senior Debt Rating.
(b) The Borrower agrees to pay to the Administrative Agent for
its own account an auction administration fee in the amount of
$2,000 in respect of each Auction Borrowing requested by the
Borrower pursuant to Section 2.03(a)(i), payable on the date of
such request.
SECTION 2.05. Adjustment of the Commitments.
(a) The Borrower shall have the right, upon at least three
Business Days' notice to the Administrative Agent, to terminate
in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that the
aggregate amount of the Commitments of the Lenders shall not be
reduced to an amount that is less than the aggregate principal
amount of the Auction Advances then outstanding, and provided,
further, that each partial reduction shall be in the aggregate
amount of $1,000,000 or an integral multiple thereof.
(b) If the Borrower shall make the Term Election, then on the
last day of the Revolving Period, the Commitments shall be
permanently reduced to an amount equal to the aggregate principal
amount of Advances then outstanding. In addition, if on any date
following the last day of the Revolving Period the aggregate
principal amount of Advances then outstanding shall be less than
the Commitments, then on such date the Commitments shall be
permanently reduced to an amount equal to the aggregate principal
amount of Advances then outstanding.
SECTION 2.06. Repayment of Contract Advances.
The Borrower shall repay the principal amount of each
Contract Advance made by each Lender in accordance with the
Contract Note to the order of such Lender.
SECTION 2.07. Interest on Contract Advances.
The Borrower shall pay interest on the unpaid principal
amount of each Contract Advance made by each Lender from the date
of such Contract Advance until such principal amount shall be
paid in full, at the following rates per annum:
(a) Base Rate Advances. If such Contract Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time plus the Applicable Margin for such Base
Rate Advance in effect from time to time, payable quarterly on
the last day of each March, June, September and December and on
the date such Base Rate Advance shall be Converted or paid in
full.
(b) Eurodollar Rate Advances. Subject to Section 2.08, if such
Contract Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during the Interest Period for such Contract
Advance to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Margin for such Eurodollar Rate
Advance in effect from time to time, payable on the last day of
each Interest Period for such Eurodollar Rate Advance and on the
date such Eurodollar Rate Advance shall be Converted or paid in
full and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender, so long as such
Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender,
from the date of such Contract Advance until such principal
amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Contract Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Contract Advance.
Such additional interest shall be determined by such Lender and
notified to the Borrower through the Administrative Agent, and
such determination shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.09. Interest Rate Determination.
(a) Each Reference Bank agrees to furnish to the Administrative
Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall
not furnish such timely information to the Administrative Agent
for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference
Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of
Section 2.07(a) or (b) and the applicable rate, if any, furnished
by each Reference Bank for the purpose of determining the
applicable interest rate under Section 2.07(b).
(c) If fewer than two Reference Banks furnish timely information
to the Administrative Agent for determining the Eurodollar Rate
for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Contract Advances into Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Contract Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.10. Conversion of Contract Advances.
(a) Voluntary. The Borrower may, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and
2.13, on any Business Day, Convert all Contract Advances of one
Type made in connection with the same Contract Borrowing into
Advances of another Type; provided, however, that any Conversion
of, or with respect to, any Eurodollar Rate Advances into
Advances of another Type shall be made on, and only on, the last
day of an Interest Period for such Eurodollar Rate Advances,
unless the Borrower shall also reimburse the Lenders in respect
thereof pursuant to Section 8.04(b) on the date of such
Conversion. Each such notice of a Conversion (a "Notice of
Conversion") shall be by telecopier, telex or cable, confirmed
immediately in writing, in substantially the form of Exhibit B-3
hereto, specifying therein (i) the date of such Conversion,
(ii) the Contract Advances to be Converted, and (iii) if such
Conversion is into, or with respect to, Eurodollar Rate Advances,
the duration of the Interest Period for each such Contract
Advance.
(b) Mandatory. If a Borrower shall fail to select the Type of
any Contract Advance or the duration of any Interest Period for
any Contract Borrowing comprising Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01 and Section 2.10(a), or if any
proposed Conversion of a Contract Borrowing that is to comprise
Eurodollar Rate Advances upon Conversion shall not occur as a
result of the circumstances described in paragraph (c) below, the
Administrative Agent will forthwith so notify the Borrower and
the Lenders, and such Advances will automatically, on the last
day of the then existing Interest Period therefor, Convert into
Base Rate Advances.
(c) Failure to Convert. Each notice of Conversion given
pursuant to subsection (a) above shall be irrevocable and binding
on the Borrower. In the case of any Contract Borrowing that is
to comprise Eurodollar Rate Advances upon Conversion, the
Borrower agrees to indemnify each Lender against any loss, cost
or expense incurred by such Lender if, as a result of the failure
of the Borrower to satisfy any condition to such Conversion
(including, without limitation, the occurrence of any Prepayment
Event or Event of Default, or any event that would constitute an
Event of Default or a Prepayment Event with notice or lapse of
time or both), such Conversion does not occur. The Borrower's
obligations under this subsection (c) shall survive the repayment
of all other amounts owing to the Lenders and the Administrative
Agent under this Agreement and the Notes and the termination of
the Commitments.
SECTION 2.11. Prepayments.
The Borrower may, upon notice received by the Administrative
Agent prior to 11:00 A.M. (New York City time) on any Business
Day, with respect to Base Rate Advances, and upon at least two
Business Days' notice to the Administrative Agent, with respect
to Eurodollar Rate Advances, stating the proposed date and
aggregate principal amount of the prepayment, and if such notice
is given the Borrower shall, prepay the outstanding principal
amounts of the Advances made as part of the same Contract
Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount not less than
$1,000,000 or any integral multiple of $100,000 in excess thereof
and (ii) in the case of any such prepayment of an Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders
in respect thereof pursuant to Section 8.04(b) on the date of
such prepayment.
SECTION 2.12. Increased Costs.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of
reserve requirements in the case of Eurodollar Rate Advances,
included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative
Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type
(including such Lender's commitment to lend hereunder) or the
Advances, then, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall
immediately pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital
to be allocable to the existence of such Lender's commitment to
lend hereunder or the Advances made by such Lender. A
certificate in reasonable detail as to such amounts submitted to
the Borrower and the Administrative Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.13. Illegality.
Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Administrative Agent that the
introduction of, any change in or any change in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of the Lenders to make, or to
Convert Contract Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith
prepay in full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless the
Borrower, within five Business Days of notice from the
Administrative Agent, Converts all Eurodollar Rate Advances of
all Lenders then outstanding into Advances of another Type in
accordance with Section 2.10.
SECTION 2.14. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 12:00 noon (New York City time) on the day
when due in U.S. dollars to the Administrative Agent at its
address referred to in Section 8.02 in same day funds. The
Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable
pursuant to Section 2.02(c), 2.03, 2.08, 2.12, 2.15 or 8.04(b))
to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder
or under any Note held by such Lender, to charge from time to
time to the extent permitted by law against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate or the Federal Funds Rate and of
facility fees and interest payable on Auction Advances shall be
made by the Administrative Agent, and all computations of
interest pursuant to Section 2.08 shall be made by a Lender, on
the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest or facility
fees are payable. Each determination by the Administrative Agent
(or, in the case of Section 2.08, by a Lender) of an interest
rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case
may be; provided, however, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so made
such payment in full to the Administrative Agent, each Lender
shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained herein,
any amount payable by the Borrower hereunder or under any Note
that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall (to the fullest extent permitted
by law) bear interest from the date when due until paid in full
at a rate per annum equal at all times to the Base Rate plus 2%,
payable upon demand.
SECTION 2.15. Taxes.
(a) Any and all payments by the Borrower hereunder or under the
Contract Notes shall be made, in accordance with Section 2.14,
free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Lender or
the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any
Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.15) such Lender or the
Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or under the Notes or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement
or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.15)
paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date
such Lender or the Administrative Agent (as the case may be)
makes written demand therefor. Nothing herein shall preclude the
right of the Borrower to contest any such Taxes or Other Taxes so
paid, and the Lenders in question or the Administrative Agent (as
the case may be) will, following notice from, and at the expense
of, the Borrower, take such actions as the Borrower may
reasonably request to preserve the Borrower's rights to contest
such Taxes or Other Taxes, and, promptly following receipt of any
refund of amounts with respect to Taxes or Other Taxes for which
such Lenders or the Administrative Agent were previously
indemnified under this Section 2.15, pay to the Borrower such
refunded amounts (including any interest paid by the relevant
taxing authority with respect to such amounts).
(d) Prior to the date of the initial Borrowing in the case of
each Bank, and on the date of the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other
Lender, and from time to time thereafter if requested by the
Borrower or the Administrative Agent, each Lender organized under
the laws of a jurisdiction outside the United States shall
provide the Administrative Agent and the Borrower with the forms
prescribed by the Internal Revenue Service of the United States
certifying that such Lender is exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes.. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Administrative Agent and the
Borrower in writing to that effect. Unless the Borrower and the
Administrative Agent have received forms or other documents
satisfactory to them indicating that payments hereunder or under
any Note are not subject to United States withholding tax, the
Borrower or, if the Borrower fails to do so, the Administrative
Agent, shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the United
States.
(e) Any Lender claiming any additional amounts payable pursuant
to this Section 2.15 shall use its best efforts (consistent with
its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office or take
other actions customary or otherwise reasonable under the
circumstances if the making of such a change or the taking of
such actions would avoid the need for, or reduce the amount of,
any such additional amounts which may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(f) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.15 shall survive the payment
in full of principal and interest hereunder and under the Notes.
SECTION 2.16. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Contract Advances made by it (other
than pursuant to Section 2.02(c), 2.08, 2.12, 2.15 or 8.04(b)) in
excess of its ratable share of payments on account of the
Contract Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the Contract Advances made by them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with
each of them, provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.17. Extension of Termination Date.
(a) At least 30 but no more than 45 days prior to the end of the
then-current Revolving Period, the Borrower may, by delivering a
written request to the Administrative Agent (each such request
being irrevocable), request that the Revolving Period be extended
for an additional period of 364 days, commencing on the last day
of the then-current Revolving Period. Any such notice shall also
indicate whether the Borrower elects, in the event that the
Lenders determine not to extend the Revolving Period as requested
by the Borrower, to extend the then-stated Termination Date from
the last day of the then-current Revolving Period to the first
anniversary of the last day of the then-current Revolving Period
(any such election to so extend the Termination Date being the
"Term Election"). Upon receipt of any such notice, the
Administrative Agent shall promptly communicate such request to
the Lenders.
(b) No earlier than 30 days prior, and no later than 20 days
prior, to the end of the then-current Revolving Period, each
Lender may indicate to the Administrative Agent whether the
Borrower's request to so extend the then-current Revolving Period
is acceptable to such Lender, it being understood that the
determination by each Lender will be in its sole and absolute
discretion and that the failure of any Lender to so respond
within such period shall be deemed to constitute a refusal by
such Lender to consent to such requests (any Lender refusing or
deemed to refuse any such request, a "Non-Consenting Lender").
The Administrative Agent will notify the Borrower, in writing, of
the Lenders' decisions no later than 15 days prior to the end of
the then-current Revolving Period.
(c) Subject to the satisfaction of the conditions set forth in
Section 3.04, in the event that Lenders having more than 50% of
the Commitments have consented to the Borrower's request to
extend the then-current Revolving Period, the then-current
Revolving Period shall be extended for an additional period of
364 days with respect to the Commitments of such Lenders. The
Commitments of Non-Consenting Lenders with respect to such
request shall automatically terminate on the last day of the then-
current Revolving Period (and the principal amount of all
Advances made by such Non-Consenting Lenders, together with
accrued interest to such date, shall be repaid), unless assigned
pursuant to Section 8.07(i) hereof in which case the then-current
Revolving Period shall be extended for such additional period
with respect to such Commitments.
(d) Subject to the satisfaction of the conditions set forth in
Section 3.04, in the event that (i) Lenders having 50% or less
of the Commitments have consented to the Borrower's request to
extend the then-current Revolving Period and (ii) Commitments and
Advances of Non-Consenting Lenders with respect to such request
which have been assigned pursuant to Section 8.07(i) hereof, when
aggregated with the Commitments of such consenting Lenders,
comprise more than 50% of the Commitments, the then-current
Revolving Period shall be extended for an additional period of
364 days with respect to such Commitments. The Commitments of
the Non-Consenting Lenders shall automatically terminate on the
last day of the then-current Revolving Period (and the principal
amount of all Advances made by such Non-Consenting Lenders,
together with accrued interest to such date, shall be repaid),
unless assigned pursuant to Section 8.07(i) hereof.
(e) Subject to the satisfaction of the condition set forth in
Section 3.04(d)(ii), in the event that any request by the
Borrower pursuant to subsection (a) above shall be denied and the
Borrower shall have indicated in such request that, in the event
of such denial, it has determined to effect the Term Election,
then, effective as of the last day of the Revolving Period, the
Termination Date shall be extended to the first anniversary of
such day. In addition, in the event that the Borrower shall not
have requested an extension of the then-current Revolving Period
pursuant to subsection (a) above, the Borrower may nonetheless
make the Term Election by giving written notice to such effect to
the Administrative Agent at least ten Business Days prior to the
last day of the then-current Revolving Period (which shall
promptly give notice thereof to the Lenders), whereupon, subject
to the satisfaction of the condition set forth in Section
3.04(d)(ii), the Termination Date shall, effective as of such
last day, be extended to the first anniversary of such last day..
(f) Notwithstanding anything contained herein to the contrary,
the Borrower's right to effect the Term Election as provided in
either subsection (a) or (e), above, shall not affect any rights
or remedies that the Lenders or the Administrative Agent may have
at such time under Section 6.01 as a result of any Event of
Default or Prepayment Event, or event that would constitute an
Event of Default or Prepayment Event with notice or lapse of time
or both, which may have occurred and then be continuing, either
at the time of the giving of such notice or on the last day of
the then-current Revolving Period.
(g) Notwithstanding any other provision of this Agreement, the
Revolving Period may be extended more than once pursuant to this
Section 2.17 and the Term Election may be effected on the last
day of the Revolving Period whether or not the same has been
extended one or more times pursuant to this Section 2.17.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances.
The obligation of each Lender to make its initial Advance is
subject to the conditions precedent that on or before the date of
such Advance:
(a) The Administrative Agent shall have received the following,
each dated the same date (except for the financial statements
referred to in paragraph (iv) below), in form and substance
satisfactory to the Administrative Agent and (except for the
Contract Notes) with one copy for each Lender:
(i) The Contract Notes payable to the order of each of the
Lenders, respectively;
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes,
and of all documents evidencing other necessary corporate action
with respect to this Agreement and the Notes;
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (A) the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder; (B) that attached thereto are true and
correct copies of the Certificate of Incorporation and the By
Laws of the Borrower, in each case in effect on such date; and
(C) that attached thereto are true and correct copies of all
governmental and regulatory authorizations and approvals required
for the due execution, delivery and performance of this Agreement
and the Notes, including, without limitation, a copy of the
orders (File No. 70-8903) of the SEC under the Public Utility
Holding Company Act of 1935 authorizing the Borrower's execution,
delivery and performance of this Agreement and the Notes
(collectively, the "SEC Order");
(iv) Copies of the consolidated balance sheets of the Borrower
and its subsidiaries as of December 31, 1999, and the related
consolidated statements of income, retained earnings and cash
flows of the Borrower and its subsidiaries for the fiscal year
then ended, and copies of the consolidated financial statements
of the Borrower and its subsidiaries as of March 31, 2000, in
each case certified by a duly authorized officer of the Borrower
as having been prepared in accordance with generally accepted
accounting principles consistently applied;
(v) A favorable opinion of counsel for the Borrower, acceptable
to the Administrative Agent, substantially in the form of
Exhibit D hereto and as to such other matters as any Lender
through the Administrative Agent may reasonably request;
(vi) A favorable opinion of King & Spalding, Special New York
counsel for the Administrative Agent, substantially in the form
of Exhibit E hereto; and
(vii) A duly executed and delivered Form U-1, in the form
prescribed by Regulation U issued by the Board of Governors of
the Federal Reserve System.
(b) The Administrative Agent shall have received the fees
payable pursuant to the Fee Letter.
(c) The commitments of the lenders under the Existing Credit
Agreement shall have been terminated, and the obligations of the
Borrower under the Existing Credit Agreement to such lenders
shall have been paid in full.
SECTION 3.02. Conditions Precedent to Each Contract Borrowing.
The obligation of each Lender to make a Contract Advance on
the occasion of each Contract Borrowing (including the initial
Contract Borrowing) shall be subject to the further conditions
precedent that on the date of such Contract Borrowing:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing or Notice
of Conversion and the acceptance by the Borrower of any proceeds
of a Contract Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Contract
Borrowing or Conversion, as applicable, such statements are
true):
(i) The representations and warranties contained in Section 4.01
(excluding those contained in subsections (e) and (f) thereof if
such Contract Borrowing does not increase the aggregate
outstanding principal amount of Contract Advances over the
aggregate outstanding principal amount of all Contract Advances
immediately prior to the making of such Contract Borrowing) are
correct on and as of the date of such Contract Borrowing, before
and after giving effect to such Contract Borrowing and to the
application of the proceeds therefrom, as though made on and as
of such date; and
(ii) No event has occurred and is continuing, or would result
from such Contract Borrowing or from the application of the
proceeds therefrom, that constitutes a Prepayment Event or an
Event of Default or would constitute an Event of Default or a
Prepayment Event with notice or lapse of time or both.
(b) The Administrative Agent shall have received such other
approvals, opinions or documents with respect to the truth of the
foregoing statements (i) and (ii) as any Lender through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Auction Borrowing.
The obligation of each Lender that is to make an Auction
Advance as part of any Auction Borrowing (including the initial
Auction Borrowing) to make such Auction Advance is subject to the
conditions precedent that on the date of such Auction Borrowing:
(a) The Administrative Agent shall have received the written
confirmatory Notice of Auction Borrowing with respect thereto.
(b) The Administrative Agent shall have received an Auction
Note, duly executed by the Borrower, payable to the order of such
Lender for each of the Auction Advances to be made by such Lender
as part of such Auction Borrowing, in a principal amount equal to
the principal amount of the Auction Advance to be evidenced
thereby and otherwise on such terms as were agreed to for such
Auction Advance in accordance with Section 2.03.
(c) The following statements shall be true (and each of the
giving of the applicable Notice of Auction Borrowing and the
acceptance by a Borrower of the proceeds of such Auction
Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Auction Borrowing such
statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Auction Borrowing,
before and after giving effect to such Auction Borrowing and to
the application of the proceeds therefrom, as though made on and
as of such date; and
(ii) No event has occurred and is continuing, or would result
from such Auction Borrowing or from the application of the
proceeds therefrom, that constitutes a Prepayment Event or an
Event of Default or that would constitute an Event of Default or
a Prepayment Event with notice or lapse of time or both.
(d) The Borrower shall have delivered to the Administrative
Agent copies of such other approvals and documents with respect
to the truth of the foregoing statements (i) and (ii) as any
Lender through the Administrative Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Extension of the
Revolving Period.
In the event that the Borrower shall request an extension of
the Revolving Period pursuant to Section 2.17, such extension
shall take effect only upon the satisfaction of the following
conditions precedent, together with such other conditions
precedent as the extending Lenders may require in connection with
such extension:
(a) The Administrative Agent shall have prepared and delivered
to the Borrower and each Lender (including each new bank and
other financial institution to which a non-extending Lender's
Commitment has been assigned pursuant to Section 8.07(i) hereof)
a revised Schedule II which reflects the Commitments, as
applicable, of each Lender.
(b) The Borrower shall have paid all fees under or referenced in
Section 2.04 hereof, to the extent then due and payable.
(c) The Administrative Agent shall have received such other
documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated by Section 2.17 as
the Administrative Agent shall reasonably request, including,
without limitation, copies of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the Board
of Directors of the Borrower authorizing the extension of the
Termination Date.
(d) The following statements shall be true on and as of the last
day of the then-current Revolving Period:
(i) The representations and warranties contained in Section 4.01
are correct, provided that, the representations contained in
subsections (e) and (f) thereof are made with respect to the
Borrower's Annual Report on Form 10-K most recently filed with
the SEC and Quarterly Reports on Form 10-Q, if any, filed with
the SEC after such Form 10-K; and
(ii) No event has occurred and is continuing, or would result
from such extension of the Termination Date, that constitutes a
Prepayment Event or an Event of Default or would constitute an
Event of Default or a Prepayment Event with notice or lapse of
time or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and is duly qualified to do business as a
foreign corporation in each jurisdiction in which the nature of
the business conducted or the property owned, operated or leased
by it requires such qualification, except where failure to so
qualify would not materially adversely affect its condition
(financial or otherwise), operations, business, properties, or
prospects.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's charter or by
laws, (ii) law applicable to the Borrower or its properties or
(iii) any contractual or legal restriction binding on or
affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower of this Agreement or the Notes,
except for the following (each of which has been duly filed or
obtained, and is final and in full force and effect): (i) the
filing of the Declaration on Form U-1 and amendments and exhibits
thereto in File No. 70-8903 and (ii) the SEC Order.
(d) This Agreement is, and the Notes when delivered hereunder
will be, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their
respective terms, subject, however, to any applicable bankruptcy,
reorganization, rearrangement, moratorium or similar laws
affecting generally the enforcement of creditors' rights and
remedies and to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or
at law).
(e) The consolidated financial statements of the Borrower and
its subsidiaries as of December 31, 1999 and for the year ended
on such date, as set forth in the Borrower's Annual Report on
Form 10-K for the fiscal year ended on such date, as filed with
the SEC, accompanied by an opinion of PricewaterhouseCoopers LLP,
and the consolidated financial statements of the Borrower and its
subsidiaries as of March 31, 2000, and for the three-month period
ended on such date set forth in the Borrower's Quarterly Report
on Form 10-Q for the fiscal quarter ended on such date, as filed
with the SEC, copies of each of which have been furnished to each
Bank, fairly present (subject, in the case of such statements
dated March 31, 2000, to year-end adjustments) the consolidated
financial condition of the Borrower and its subsidiaries as at
such dates and the consolidated results of the operations of the
Borrower and its subsidiaries for the periods ended on such
dates, in accordance with generally accepted accounting
principles consistently applied. Except as disclosed in the
Borrower's Quarterly Report on Form 10-Q for the fiscal period
ended March 31, 2000, since December 31, 1999, there has been no
material adverse change in the financial condition or operations
of the Borrower.
(f) Except as disclosed in the Borrower's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999, and the
Borrower's Quarterly Report on Form 10-Q for the period ended
March 31, 2000, there is no pending or threatened action or
proceeding affecting the Borrower or any of its subsidiaries
before any court, governmental agency or arbitrator that, if
determined adversely, could reasonably be expected to have a
material adverse effect upon the condition (financial or
otherwise), operations, business, properties or prospects of the
Borrower or on its ability to perform its obligations under this
Agreement or any Note, or that purports to affect the legality,
validity, binding effect or enforceability of this Agreement or
any Note. There has been no change in any matter disclosed in
such filings that could reasonably be expected to result in such
a material adverse effect.
(g) No event has occurred and is continuing that constitutes a
Prepayment Event or an Event of Default or that would constitute
an Event of Default or a Prepayment Event but for the requirement
that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and not more than 25%
of the value of the assets of the Borrower and its subsidiaries
subject to the restrictions of Section 5.02(a), (c) or (d) is, on
the date hereof, represented by margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal
Reserve System).
(i) The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment
advisor" within the meaning of the Investment Company Act of
1940, as amended. The Borrower is a "holding company" as that
term is defined in, and is registered under, the Public Utility
Holding Company Act of 1935.
(j) No ERISA Termination Event has occurred, or is reasonably
expected to occur, with respect to any ERISA Plan that may
materially and adversely affect the condition (financial or
otherwise), operations, business, properties or prospects of the
Borrower and its subsidiaries, taken as a whole.
(k) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) with respect to each ERISA Plan, copies
of which have been filed with the Internal Revenue Service and
furnished to the Banks, is complete and accurate and fairly
presents the funding status of such ERISA Plan, and since the
date of such Schedule B there has been no material adverse change
in such funding status.
(l) The Borrower has not incurred, and does not reasonably
expect to incur, any withdrawal liability under ERISA to any
Multiemployer Plan.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.
So long as any Note or any amount payable by the Borrower
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Keep Books; Corporate Existence; Maintenance of Properties;
Compliance with Laws; Insurance; Taxes; Inspection Rights.
(i) keep proper books of record and account, all in accordance
with generally accepted accounting principles;
(ii) except as otherwise permitted by Section 5.02(c), preserve
and keep in full force and effect its existence and preserve and
keep in full force and effect its licenses, rights and franchises
to the extent necessary to carry on its business;
(iii) maintain and keep, or cause to be maintained and kept,
its properties in good repair, working order and condition, and
from time to time make or cause to be made all needful and proper
repairs, renewals, replacements and improvements, in each case to
the extent such properties are not obsolete and not necessary to
carry on its business;
(iv) comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or
its property, except to the extent being contested in good faith
by appropriate proceedings, and compliance with ERISA and
Environmental Laws;
(v) maintain insurance with responsible and reputable insurance
companies or associations or through its own program of self-
insurance in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which it operates
and furnish to the Administrative Agent, within a reasonable time
after written request therefor, such information as to the
insurance carried as any Lender, through the Administrative
Agent, may reasonably request;
(vi) pay and discharge its obligations and liabilities in the
ordinary course of business, except to the extent that such
obligations and liabilities are being contested in good faith by
appropriate proceedings; and
(vii) from time to time upon reasonable notice, permit or
arrange for the Administrative Agent, the Lenders and their
respective agents and representatives to inspect the records and
books of account of the Borrower and its subsidiaries during
regular business hours.
(b) Use of Proceeds. The Borrower may use the proceeds of the
Borrowings for only (i) general corporate purposes and
(ii) subject to the terms and conditions of this Agreement,
repurchases of common stock of the Borrower and/or investments in
nonregulated and/or nonutility businesses.
(c) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year
of the Borrower, (A) consolidated balance sheets of the Borrower
and its subsidiaries as of the end of such quarter and (B)
consolidated statements of income and retained earnings of the
Borrower and its subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such
quarter, each certified by a duly authorized officer of the
Borrower as having been prepared in accordance with generally
accepted accounting principles, consistently applied;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the annual
report for such year for the Borrower and its subsidiaries,
containing consolidated financial statements for such year
certified without qualification by PricewaterhouseCoopers LLP (or
such other nationally recognized public accounting firm as the
Administrative Agent may approve), and certified by a duly
authorized officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles,
consistently applied;
(iii) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower and within 120 days after the end of the
fiscal year of the Borrower, a certificate of a duly authorized
officer of the Borrower, stating that no Prepayment Event or
Event of Default has occurred and is continuing, or if a
Prepayment Event or Event of Default has occurred and is
continuing, a statement setting forth details of such Prepayment
Event or Event of Default, as the case may be, and the action
that the Borrower has taken and proposes to take with respect
thereto;
(iv) as soon as possible and in any event within five days after
the Borrower has knowledge of the occurrence of each Prepayment
Event, Event of Default and each event that, with the giving of
notice or lapse of time or both, would constitute an Event of
Default, continuing on the date of such statement, a statement of
the duly authorized officer of the Borrower setting forth details
of such Prepayment Event, Event of Default or event, as the case
may be, and the actions that the Borrower has taken and proposes
to take with respect thereto;
(v) as soon as possible and in any event within five days after
the Borrower receives notice of the commencement of any
litigation against, or any arbitration, administrative,
governmental or regulatory proceeding involving, the Borrower or
any of its subsidiaries, that, if adversely determined, could
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), operations, business,
properties or prospects of the Borrower, notice of such
litigation describing in reasonable detail the facts and
circumstances concerning such litigation and the Borrower's or
such subsidiary's proposed actions in connection therewith;
(vi) promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to any of its securities holders,
and copies of all reports and registration statements which the
Borrower files with the SEC or any national securities exchange
pursuant to the Securities Act of 1933 or the Exchange Act, and
of all certificates pursuant to Rule 24 which the Borrower files
with the SEC pursuant to the Public Utility Holding Company Act
of 1935 in connection with the proceeding of the SEC in File No.
70-8903 related to the SEC Order or any subsequent proceedings
related thereto;
(vii) as soon as possible and in any event (A) within 30 days
after the Borrower knows or has reason to know that any ERISA
Termination Event described in clause (i) of the definition of
ERISA Termination Event with respect to any ERISA Plan has
occurred and (B) within 10 days after the Borrower knows or has
reason to know that any other ERISA Termination Event with
respect to any ERISA Plan has occurred, a statement of the chief
financial officer of the Borrower describing such ERISA
Termination Event and the action, if any, that the Borrower
proposes to take with respect thereto;
(viii) promptly and in any event within two Business Days
after receipt thereof by the Borrower from the PBGC, copies of
each notice received by the Borrower of the PBGC's intention to
terminate any ERISA Plan or to have a trustee appointed to
administer any ERISA Plan;
(ix) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each ERISA Plan;
(x) promptly and in any event within five Business Days after
receipt thereof by the Borrower from a Multiemployer Plan
sponsor, a copy of each notice received by the Borrower
concerning the imposition of withdrawal liability pursuant to
Section 4202 of ERISA;
(xi) promptly and in any event within five Business Days after
Moody's or S&P has changed any Senior Debt Rating of any
Significant Subsidiary, notice of such change; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenants.
So long as any Note or any amount payable by the Borrower
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not, without the written
consent of the Majority Lenders:
(a) Liens, Etc. Create or suffer to exist any Lien upon or with
respect to any of its properties (including, without limitation,
any shares of any class of equity security of any of its
Significant Subsidiaries or of Entergy New Orleans), in each case
to secure or provide for the payment of Debt, other than:
(i) Liens in existence on the date of this Agreement; (ii) Liens
for taxes, assessments or governmental charges or levies to the
extent not past due, or which are being contested in good faith
in appropriate proceedings diligently conducted and for which the
Borrower has provided adequate reserves for the payment thereof
in accordance with generally accepted accounting principles;
(iii) pledges or deposits in the ordinary course of business to
secure obligations under worker's compensation laws or similar
legislation; (iv) other pledges or deposits in the ordinary
course of business (other than for borrowed monies) that, in the
aggregate, are not material to the Borrower; (v) purchase money
mortgages or other liens or purchase money security interests
upon or in any property acquired or held by the Borrower in the
ordinary course of business to secure the purchase price of such
property or to secure indebtedness incurred solely for the
purpose of financing the acquisition of such property; (vi) Liens
imposed by law such as materialmen's, mechanics', carriers',
workers' and repairmen's Liens and other similar Liens arising in
the ordinary course of business for sums not yet due or currently
being contested in good faith by appropriate proceedings
diligently conducted; (vii) attachment, judgment or other similar
Liens arising in connection with court proceedings, provided that
such Liens, in the aggregate, shall not exceed $50,000,000 at any
one time outstanding, (viii) other Liens not otherwise referred
to in the foregoing clauses (i) through (vii) above, provided
that such Liens, in the aggregate, shall not exceed $100,000,000
at any one time and (ix) Liens created for the sole purpose of
extending, renewing or replacing in whole or in part Debt secured
by any Lien referred in the foregoing clauses (i) through (vi)
above, provided that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of indebtedness so
secured at the time of such extension, renewal or replacement and
that such extension, renewal or replacement, as the case may be,
shall be limited to all or a part of the property or Debt that
secured the Lien so extended, renewed or replaced (and any
improvements on such property); provided, further, that no Lien
permitted under the foregoing clauses (i) through (ix) shall be
placed upon any shares of any class of equity security of any
Significant Subsidiary or of Entergy New Orleans unless the
obligations of the Borrower to the Lenders hereunder are
simultaneously and ratably secured by such Lien pursuant to
documentation satisfactory to the Lenders.
(b) Limitation on Debt. Permit the total principal amount of
all Debt of the Borrower and its subsidiaries, determined on a
consolidated basis and without duplication of liability therefor,
at any time to exceed 65% of Capitalization determined as of the
last day of the most recently ended fiscal quarter of the
Borrower; provided, however, that for purposes of this Section
5.02(b) "Debt" and "Capitalization" shall not include (i) Junior
Subordinated Debentures issued to a subsidiary trust which has
issued preferred securities that are included in the calculation
of "Capitalization" and (ii) any Debt of any subsidiary of the
Borrower that is Non-Recourse Debt.
(c) Mergers, Etc. Merge with or into or consolidate with or
into any other Person, except that the Borrower may merge with
any other Person, provided that, immediately after giving effect
to any such merger, (i) the Borrower is the surviving corporation
or (A) the surviving corporation is organized under the laws of
one of the states of the United States of America and assumes the
Borrower's obligations hereunder in a manner acceptable to the
Majority Lenders, and (B) after giving effect to such merger, the
Relevant Rating shall be at least BBB- and Baa3, (ii) no event
shall have occurred and be continuing that constitutes a
Prepayment Event or an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or
time elapse or both, and (iii) the Borrower shall not be liable
with respect to any Debt or allow its property to be subject to
any Lien which would not be permissible with respect to it or its
property under this Agreement on the date of such transaction.
(d) Disposition of Assets. Sell, lease, transfer, convey or
otherwise dispose of (whether in one transaction or in a series
of transactions) any shares of voting common stock (or of stock
or other instruments convertible into voting common stock) of any
Significant Subsidiary or of Entergy New Orleans, or permit any
Significant Subsidiary or Entergy New Orleans to issue, sell or
otherwise dispose of any of its shares of voting common stock (or
of stock or other instruments convertible into voting common
stock), except to the Borrower or a Significant Subsidiary.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following events shall constitute an "Event of
Default" hereunder:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable, or shall fail to pay
interest thereon or any other amount payable under this Agreement
or any of the Notes within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect or misleading
in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(b) or 5.02 or
(ii) any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if the failure
to perform or observe such other term, covenant or agreement
shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent
or any Lender; or
(d) The Borrower shall fail to pay any principal of or premium
or interest on any Debt of the Borrower that is outstanding in a
principal amount in excess of $50,000,000 in the aggregate (but
excluding Debt evidenced by the Notes) when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or
(e) The Borrower, any Significant Subsidiary or Entergy New
Orleans shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against
the Borrower, any Significant Subsidiary or Entergy New Orleans
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property)
shall occur; or the Borrower, any Significant Subsidiary or
Entergy New Orleans shall take any corporate action to authorize
or to consent to any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower and either
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any
period of 10 consecutive Business Days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) (i) An ERISA Plan of the Borrower or any ERISA Affiliate of
the Borrower shall fail to maintain the minimum funding standards
required by Section 412 of the Internal Revenue Code of 1986 for
any plan year or a waiver of such standard is sought or granted
under Section 412(d) of the Internal Revenue Code of 1986, or
(ii) an ERISA Plan of the Borrower or any ERISA Affiliate of the
Borrower is, shall have been or will be terminated or the subject
of termination proceedings under ERISA, or (iii) the Borrower or
any ERISA Affiliate of the Borrower has incurred or will incur a
liability to or on account of an ERISA Plan under Section 4062,
4063 or 4064 of ERISA and there shall result from such event
either a liability or a material risk of incurring a liability to
the PBGC or an ERISA Plan, or (iv) any ERISA Termination Event
with respect to an ERISA Plan of the Borrower or any ERISA
Affiliate of the Borrower shall have occurred, and in the case of
any event described in clauses (i) through (iv), (A) such event
(if correctable) shall not have been corrected and (B) the then-
present value of such ERISA Plan's vested benefits exceeds the
then-current value of assets accumulated in such ERISA Plan by
more than the amount of $25,000,000 (or in the case of an ERISA
Termination Event involving the withdrawal of a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), the
withdrawing employer's proportionate share of such excess shall
exceed such amount).
SECTION 6.02. Remedies.
If any Prepayment Event or Event of Default shall occur and
be continuing, then, and in any such event, the Administrative
Agent (i) shall at the request, or may with the consent, of the
Majority Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Majority Lenders, by
notice to the Borrower, declare the Notes, all interest thereon
and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest
and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower,
any Significant Subsidiary or Entergy New Orleans under the
Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the
Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action.
Each Lender hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or
which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence
or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may treat the payee
of any Note as the holder thereof until the Administrative Agent
receives and accepts an Assignment and Acceptance entered into by
the Lender which is the payee of such Note, as assignor, and any
assignee pursuant to Section 8.07; (ii) may consult with legal
counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants
or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall
not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any
lien or security interest created or purported to be created
under or in connection with, this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates.
With respect to its Commitment, the Advances made by it and
the Notes issued to it, Citibank shall have the same rights and
powers under this Agreement as any other Lender and may exercise
the same as though it were not the Administrative Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Citibank in its individual capacity. Citibank
and its affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its subsidiaries and any
Person who may do business with or own securities of the Borrower
or any such subsidiary, all as if Citibank were not the
Administrative Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on the financial statements referred to in
Section 4.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent (to
the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Contract Notes then held
by each of them (or if no Contract Notes are at the time
outstanding or if any Contract Notes are held by Persons which
are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that no
Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement,
to the extent that such expenses are reimbursable by the Borrower
but for which the Administrative Agent is not reimbursed by the
Borrower.
SECTION 7.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor
Administrative Agent, which, for so long as no Prepayment Event
or Event of Default has occurred and is continuing, shall be a
Lender and shall be approved by the Borrower (with such approval
not to be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders and approved by the Borrower, and shall have accepted
such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States
or of any other country that is a member of the OECD having a
combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. Notwithstanding the
foregoing, if no Prepayment Event or Event of Default, and no
event that with the giving of notice or the passage of time, or
both, would constitute an Prepayment Event or Event of Default,
shall have occurred and be continuing, then no successor
Administrative Agent shall be appointed under this Section 7.06
without the prior written consent of the Borrower, which consent
shall not be unreasonably withheld or delayed.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
No amendment or waiver of any provision of this Agreement or
the Contract Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders (other than any Lender that
is the Borrower or an Affiliate of the Borrower), do any of the
following: (a) waive any of the conditions specified in
Section 3.01, 3.02, 3.03 or 3.04, (b) increase the Commitments
of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the
Contract Notes or any fees or other amounts payable hereunder,
(d) other than pursuant to Section 2.17 hereof, postpone any date
fixed for any payment of principal of, or interest on, the
Contract Notes or any fees or other amounts payable hereunder,
(e) other than pursuant to Section 2.05(b) or Section 2.17
hereof, change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Contract Notes, or the
number of Lenders, which shall be required for the Lenders or any
of them to take any action hereunder or (f) amend this
Section 8.01 or Section 2.17; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc.
All notices and other communications provided for hereunder
shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address
at 639 Loyola Avenue, New Orleans, LA 70113, Attention:
Treasurer; if to any Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender;
and if to the Administrative Agent, at its address at Two
Pennsway, Suite 200, New Castle, Delaware 19720, Attention: Bank
Loan Syndications, John Williams (Telephone: 302-894-6013,
Telecopier: 302-894-6120); or, as to each party, at such other
address as shall be designated by such party in a written notice
to the other parties. All such notices and communications shall,
when mailed, telecopied, telegraphed, telexed or cabled, be
effective when deposited in the mails, telecopied, delivered to
the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II
or VII shall not be effective until received by the
Administrative Agent. Except as otherwise provided in Section
5.01(c), notices and other communications given by the Borrower
to the Administrative Agent shall be deemed given to the Lenders.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative
Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses
incurred by the Administrative Agent in connection with the
preparation, execution, delivery, syndication administration,
modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement. Any invoices
to the Borrower with respect to the aforementioned expenses shall
describe such costs and expenses in reasonable detail. The
Borrower further agrees to pay on demand all costs and expenses,
if any (including, without limitation, counsel fees and expenses
of outside counsel and of internal counsel), incurred by the
Administrative Agent and the Lenders in connection with the
enforcement (whether through negotiations, legal proceedings or
otherwise) of, and the protection of the rights of the Lenders
under, this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of
rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made other than on the last day of the
Interest Period for such Contract Advance, as a result of a
payment or Conversion pursuant to Section 2.09(d), 2.10 or 2.13,
acceleration of the maturity of the Notes pursuant to Section
6.02, assignment to another Lender upon demand of the Borrower
pursuant to Section 8.07(i) or (j) or for any other reason, the
Borrower shall, upon demand by any Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits upon such Lender's
representation to the Borrower that it has made reasonable
efforts to mitigate such loss), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Contract
Advance. Any Lender making a demand pursuant to this Section
8.04(b) shall provide the Borrower with a written certification
of the amounts required to be paid to such Lender, showing in
reasonable detail the basis for the Lender's determination of
such amounts; provided, however, that no Lender shall be required
to disclose any confidential or proprietary information in any
certification provided pursuant hereto, and the failure of any
Lender to provide such certification shall not affect the
obligations of the Borrower hereunder.
(c) The Borrower hereby agrees to indemnify and hold each
Lender, the Administrative Agent and their respective Affiliates
and their respective officers, directors, employees and
professional advisors (each, an "Indemnified Person") harmless
from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable attorney's
fees and expenses, whether or not such Indemnified Person is
named as a party to any proceeding or is otherwise subjected to
judicial or legal process arising from any such proceeding) that
any of them may incur or which may be claimed against any of them
by any person or entity by reason of or in connection with the
execution, delivery or performance of this Agreement, the Notes
or any transaction contemplated thereby, or the use by the
Borrower or any of its subsidiaries of the proceeds of any
Advance, except that no Indemnified Person shall be entitled to
any indemnification hereunder to the extent that such claims,
damages, losses, liabilities, costs or expenses are finally
determined by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such
Indemnified Person. The Borrower's obligations under this
Section 8.04(c) shall survive the repayment of all amounts owing
to the Lenders and the Administrative Agent under this Agreement
and the Notes and the termination of the Commitments. If and to
the extent that the obligations of the Borrower under this
Section 8.04(c) are unenforceable for any reason, the Borrower
agrees to make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable law.
SECTION 8.05. Right of Set-off.
Upon (i) the occurrence and during the continuance of any
Event of Default or Prepayment Event and (ii) the making of the
request or the granting of the consent specified by Section 6.02
to authorize the Administrative Agent to declare the Notes due
and payable pursuant to the provisions of Section 6.01, each
Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and any Note held
by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made
by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section 8.05 are in addition
to other rights and remedies (including, without limitation,
other rights of set-off) which such Lender may have.
SECTION 8.06. Binding Effect.
This Agreement shall become effective when it shall have
been executed by the Borrower, the Lenders and the Administrative
Agent and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender
and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment, the Contract Advances owing to it and the
Contract Note or Notes held by it); provided, however, that
(i) the Borrower and the Administrative Agent shall have
consented to such assignment (such consent not to be unreasonably
withheld or delayed) by signing the Assignment and Acceptance
referred to in clause (iv) below; (ii) each such assignment shall
be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any Auction Advances
or Auction Notes); (iii) the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than
$10,000,000 and shall be an integral multiple of $1,000,000 (or
shall be the total amount of the assigning Lender's Commitment);
and (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with any Contract Note or Notes subject to such assignment and a
processing and recordation fee of $3,000 (plus an amount equal to
out-of-pocket legal expenses of the Administrative Agent,
estimated by the Administrative Agent and advised to such
parties). Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto). Notwithstanding anything to the contrary
contained in this Agreement, any Lender at any time may assign
all or any portion of its rights and obligations under this
Agreement to any Affiliate of such Lender.
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto
as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01(e)
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such assignee appoints
and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Contract Advances
owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee, together with any Contract
Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for
the surrendered Contract Note or Notes a new Contract Note to the
order of such assignee in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment hereunder, a new
Contract Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new
Contract Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered
Contract Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or other
entities any Auction Note or Notes held by it, without the
consent of the Borrower.
(f) Each Lender may sell participations to one or more banks,
financial institutions or other entities in or to all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, and (iv) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(h) If any Lender shall fail to consent to the extension of the
Termination Date pursuant to Section 2.17, then upon notification
by the Administrative Agent of such Lender's refusal pursuant to
Section 2.17(b), the Borrower may demand that such Lender assign,
prior to the last day of the then-current Revolving Period, in
accordance with this Section 8.07 to one or more assignees
designated by the Borrower and acceptable to the Administrative
Agent all (but not less than all) of such Lender's Commitment and
the Contract Advances owing to it. If any such assignee
designated by the Borrower shall fail to consummate such
assignment on terms acceptable to such Lender, or if the Borrower
shall fail to designate any such assignee for all of such
Lender's Commitment or Advances, then such Lender may assign,
prior to the last day of the then-current Revolving Period, such
Commitment and Advances to any other assignee acceptable to the
Administrative Agent in accordance with this Section 8.07; it
being understood for purposes of this Section 8.07(i) that such
assignment shall be conclusively deemed to be on terms acceptable
to such Lender, and such Lender shall be compelled to consummate
such assignment to an assignee designated by the Borrower, if
such assignee (i) shall agree to such assignment in substantially
the form of Exhibit C hereto and (ii) shall offer compensation to
such Lender in an amount equal to the sum of the principal amount
of all Contract Advances outstanding to such Lender plus all
interest accrued thereon to the date of such payment plus all
other amounts payable by the Borrower to such Lender hereunder
(whether or not then due) as of the date of such payment accrued
in favor of such Lender hereunder.
(i) If any Lender shall make any demand for payment under
Section 2.12 or 2.15, or if any Lender shall be the subject of
any notification or assertion of illegality under Section 2.13,
then within 30 days after any such demand (if, but only if, such
demanded payment has been made by the Borrower) or notification
or assertion, the Borrower may, with the approval of the
Administrative Agent (which approval shall not be unreasonably
withheld) and provided that no Prepayment Event, Event of Default
or event that, with the giving of notice or lapse of time or
both, would constitute an Event of Default, shall then have
occurred and be continuing, demand that such Lender assign in
accordance with this Section 8.07 to one or more assignees
designated by the Borrower and acceptable to the Administrative
Agent all (but not less than all) of such Lender's Commitment and
the Contract Advances owing to it within the period ending on the
later to occur of such 30th day and the last day of the longest
of the then current Interest Periods for such Advances. If any
such assignee designated by the Borrower and approved by the
Administrative Agent shall fail to consummate such assignment on
terms acceptable to such Lender, or if the Borrower shall fail to
designate any such assignees acceptable to the Administrative
Agent for all or part of such Lender's Commitment or Advances,
then such demand by the Borrower shall become ineffective; it
being understood for purposes of this subsection (j) that such
assignment shall be conclusively deemed to be on terms acceptable
to such Lender, and such Lender shall be compelled to consummate
such assignment to an Eligible Assignee designated by the
Borrower, if such Eligible Assignee (A) shall agree to such
assignment by entering into an Assignment and Acceptance with
such Lender and (B) shall offer compensation to such Lender in an
amount equal to all amounts then owing by the Borrower to such
Lender hereunder and under the Note made by the Borrower to such
Lender, whether for principal, interest, fees, costs or expenses
(other than the demanded payment referred to above and payable by
the Borrower as a condition to the Borrower's right to demand
such assignment), or otherwise. In addition, in the event that
the Borrower shall be entitled to demand the replacement of any
Lender pursuant to this subsection (j), the Borrower may, in the
case of any such Lender, with the approval of the Administrative
Agent (which approval shall not be unreasonably withheld) and
provided that no Prepayment Event, Event of Default or event
that, with the giving of notice or lapse of time or both, would
constitute an Event of Default, shall then have occurred and be
continuing, terminate all (but not less than all) such Lender's
Commitment and prepay all (but not less than all) such Lender's
Advances not so assigned, together with all interest accrued
thereon to the date of such prepayment and all fees, costs and
expenses and other amounts then owing by the Borrower to such
Lender hereunder and under the Note made by the Borrower to such
Lender, at any time from and after such later occurring day in
accordance with Sections 2.05 and 2.11 hereof (but without the
requirement stated therein for ratable treatment of the other
Lenders), if and only if, after giving effect to such termination
and prepayment, the sum of the aggregate principal amount of the
Advances of all Lenders then outstanding does not exceed the then
remaining Commitments of the Lenders. Notwithstanding anything
set forth above in this subsection (j) to the contrary, the
Borrower shall not be entitled to compel the assignment by any
Lender demanding payment under Section 2.12(a) of its Commitment
and Advances or terminate and prepay the Commitment and Advances
of such Lender if, prior to or promptly following any such demand
by the Borrower, such Lender shall have changed or shall change,
as the case may be, its Applicable Lending Office for its
Eurodollar Rate Advances so as to eliminate the further
incurrence of such increased cost. In furtherance of the
foregoing, any such Lender demanding payment or giving notice as
provided above agrees to use reasonable efforts to so change its
Applicable Lending Office if, to do so, would not result in the
incurrence by such Lender of additional costs or expenses which
it deems material or, in the sole judgment of such Lender, be
inadvisable for regulatory, competitive or internal management
reasons.
(j) Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 8.08. Governing Law.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 8.09. Consent to Jurisdiction; Waiver of Jury Trial.
(a) To the fullest extent permitted by law, the Borrower hereby
irrevocably (i) submits to the non-exclusive jurisdiction of any
New York State or Federal court sitting in New York City and any
appellate court from any thereof in any action or proceeding
arising out of or relating to this agreement or any other Loan
Document, and (ii) agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York
State court or in such Federal court. The Borrower hereby
irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such
action or proceeding. The Borrower also irrevocably consents, to
the fullest extent permitted by law, to the service of any and
all process in any such action or proceeding by the mailing by
certified mail of copies of such process to the Borrower at its
address specified in Section 8.02. The Borrower agrees, to the
fullest extent permitted by law, that a final judgment in any
such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
NOTE, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
SECTION 8.10. Execution in Counterparts.
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ENTERGY CORPORATION
By
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent and Bank
By
Name:
Title:
BANKS
ABN AMRO BANK N.V.
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
BARCLAYS BANK PLC
By__________________________________
Name:
Title:
THE BANK OF NEW YORK
By__________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By__________________________________
Name:
Title:
BANK ONE, NA
By__________________________________
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
By__________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH
By__________________________________
Name:
Title:
KBC BANK N.V.
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
MELLON BANK, N.A.
By__________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By__________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By__________________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
SCHEDULE I
ENTERGY CORPORATION
$500,000,000 Credit Agreement
Name of Bank Domestic Eurodollar
Lending Office Lending Office
ABN AMRO Bank N.V. 208 South LaSalle Street 208 South LaSalle Street
Suite 1500 Suite 1500
Chicago, IL 60604-1003 Chicago, IL 60604-1003
Attn: Credit Administration Attn: Credit Administration
Telephone: 312-992-5110 Telephone: 312-992-5110
Fax: 312-992-5111 Fax: 312-992-5111
The Bank of New York One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
Attn: Steve Kalachman / Attn: Steve Kalachman /
Lisa Williams Lisa Williams
Telephone: 212-635-7881 Telephone: 212-635-7881
212-635-7535 212-635-7535
Fax: 212-635-7923 Fax: 212-635-7923
212-635-7924 212-635-7924
The Bank of Nova 600 Peachtree Street N.E. 600 Peachtree Street N.E.
Scotia Suite 2700 Suite 2700
Atlanta, GA 30308 Atlanta, GA 30308
Attn: Donna Gardner Attn: Donna Gardner
Telephone: 404-877-1559 Telephone: 404-877-1559
Fax: 404-888-8998 Fax: 404-888-8998
Bank One, NA 1 Bank One Plaza 1 Bank One Plaza
Suite 0634 Suite 0634
Chicago, IL 60670 Chicago, IL 60670
Attn: Mattie Reed Attn: Mattie Reed
Telephone: 312-732-5219 Telephone: 312-732-5219
Fax: 312-732-4840 Fax: 312-732-4840
Barclays Bank PLC 222 Broadway 222 Broadway
New York, NY 10038 New York, NY 10038
Attn: Marsha Hamlette / Attn: Marsha Hamlette /
Sydney Dennis Sydney Dennis
Telephone: 212-412-4081 Telephone: 212-412-4081
212-412-2410 212-412-2410
Fax: 212-412-6709 Fax: 212-412-6709
Bayerische 560 Lexington Avenue Brienner Strasse 20
Landesbank New York, NY 10022 D-80333 Munich, Germany
Girozentrale Attn: Patricia Sanchez Attn: Eurodollar Lending Office
Telephone: 212-310-9810 Telephone: 011-49-89-2171-01
Fax: 212-310-9930 Fax:
Credit Agricole 55 East Monroe 55 East Monroe
Indosuez Chicago, IL 60603 Chicago, IL 60603
Attn: Wilma Persenaire Attn: Wilma Persenaire
Telephone: 312-917-7424 Telephone: 312-917-7424
Fax: 312-372-4421 Fax: 312-372-4421
The Chase Manhattan One Chase Manhattan Plaza One Chase Manhattan Plaza
Bank New York, NY 10081 New York, NY 10081
Attn: Lynette Lang Attn: Lynette Lang
Telephone: 212-552-7692 Telephone: 212-552-7692
Fax: 212-552-5777 Fax: 212-552-5777
Citibank, N.A. One Court Square One Court Square
Seventh Floor, Zone 1 Seventh Floor, Zone 1
Long Island City, NY 11120 Long Island City, NY 11120
Attn: John Mann Attn: John Mann
Telephone: 718-248-4504 Telephone: 718-248-4504
Fax: 718-248-4844 Fax: 718-248-4844
The Industrial Bank New York Branch New York Branch
of Japan, Limited 1251 Avenue of the Americas 1251 Avenue of the Americas
New York, NY 10020-1104 New York, NY 10020-1104
Attn: Andrew Attn: Andrew
Encarnacion/Credit Encarnacion/Credit
Administration Administration
Telephone: 212-282-4065 Telephone: 212-282-4065
Fax: 212-282-4480 Fax: 212-282-4480
KBC Bank N.V. New York Branch New York Branch
125 West 55th Street 125 West 55th Street
New York, NY 10019 New York, NY 10019
Attn: Charlene Attn: Charlene
Cumberbatch/Loan Cumberbatch/Loan
Administration Administration
Telephone: 212-541-0653 Telephone: 212-541-0653
Fax: 212-956-5581 Fax: 212-956-5581
Mellon Bank, N.A. Three Mellon Bank Center Three Mellon Bank Center
Room 1203 Room 1203
Pittsburgh, PA 15259-0003 Pittsburgh, PA 15259-0003
Attn: Brenda Leiezapf Attn: Brenda Leiezapf
Telephone: 412-234-8161 Telephone: 412-234-8161
Fax: 412-209-6146 Fax: 412-209-6146
The Royal Bank of Wall Street Plaza Wall Street Plaza
Scotland PLC 26th Floor 26th Floor
88 Pine Street 88 Pine Street
New York, NY 10035 New York, NY 10035
Attn: Helena Griffen Attn: Helena Griffen
Telephone: 212-269-1700 Telephone: 212-269-1700
Fax: 212-344-4065 Fax: 212-344-4065
Union Bank of 445 S. Figueroa Street 445 S. Figueroa Street
California, N.A. 15th Floor 15th Floor
Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Dennis Blank Attn: Dennis Blank
Telephone: 213-236-6564 Telephone: 213-236-6564
Fax: 213-236-4096 Fax: 213-236-4096
Westdeutsche 1211 Avenue of the Americas 1211 Avenue of the Americas
Landesbank New York, NY 10036 New York, NY 10036
Girozentrale, New Attn: Attn:
York Branch Telephone: Telephone:
Fax: Fax:
SCHEDULE II
COMMITMENT SCHEDULE
Name of Lender Commitment
Amount
Citibank, N.A. $55,000,000
The Bank of New York $50,000,000
ABN AMRO Bank N.V. $45,000,000
Bank One, NA $45,000,000
Bayerische Landesbank Girozentrale $45,000,000
The Chase Manhattan Bank $35,000,000
The Royal Bank of Scotland PLC $35,000,000
The Bank of Nova Scotia $25,000,000
Barclays Bank PLC $25,000,000
Credit Agricole Indosuez $25,000,000
The Industrial Bank of Japan $25,000,000
KBC Bank NV $25,000,000
Union Bank of California, N.A. $25,000,000
Westdeutsche Landesbank Girozentrale, $25,000,000
New York Branch
Mellon Bank, N.A. $15,000,000
Total Commitment: $500,000,000
EXHIBIT A-1
FORM OF CONTRACT NOTE
U.S.$ Dated: , 20
FOR VALUE RECEIVED, the undersigned, ENTERGY CORPORATION, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of (the "Lender") for the
account of its Applicable Lending Office (such term and other
capitalized terms herein being used as defined in the Credit
Agreement referred to below) the principal sum of _________
Dollars (U.S.$________) or, if less, the aggregate principal
amount of the Contract Advances made by the Lender to the
Borrower pursuant to the Credit Agreement outstanding on the
Termination Date, payable on the Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Contract Advance from the date of such
Contract Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified
in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to Citibank, N.A., as Administrative
Agent, at 399 Park Avenue, New York, New York 10043, in same day
funds. Each Contract Advance made by the Lender to the Borrower
pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached
hereto which is part of this Promissory Note.
This Promissory Note is one of the Contract Notes referred
to in, and is entitled to the benefits of, the Credit Agreement,
dated as of May __, 2000 (the "Credit Agreement"), among the
Borrower, the Lender and certain other banks parties thereto, and
Citibank, N.A., as Administrative Agent for the Lender and such
other banks. The Credit Agreement, among other things,
(i) provides for the making of Contract Advances by the Lender to
the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each
such Contract Advance being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ENTERGY CORPORATION
By
Name:
Title:
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Date Amount of Interest Principal Amount of Notation
Advance Period Paid or Unpaid Made By
(if any) Prepaid Principal
of Advance Balance
EXHIBIT A-2
FORM OF AUCTION NOTE
U.S.$______________ Dated: __________, 20__
FOR VALUE RECEIVED, the undersigned, ENTERGY CORPORATION, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of (the "Lender") for the
account of its Applicable Lending Office (as defined in the
Credit Agreement referred to below), on , 20__, the
principal amount of Dollars ($ ).
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:
[Interest Rate: ____% per annum] [or] [Description of
Interest Rate Basis and Margin] (calculated on the basis of a
year of ____ days for the actual number of days elapsed).
Interest Payment Date or Dates: __________
Prepayment terms:______________________
Both principal and interest are payable in lawful money of
the United States of America to or the
account of the Lender at the office of Citibank, N.A., as
Administrative Agent, at 399 Park Avenue, New York, New York
10043, in same day funds, free and clear of and without any
deduction, with respect to the payee named above, for any and all
present and future taxes, deductions, charges or withholdings,
and all liabilities with respect thereto to the extent and in the
manner provided in the Credit Agreement.
This Promissory Note is one of the Auction Notes referred to
in, and is entitled to the benefits of, the Credit Agreement,
dated as of May __, 2000 (the "Credit Agreement"), among the
Borrower, the Lender and certain other banks parties thereto, and
Citibank, N..A., as Administrative Agent for the Lender and such
other banks. The Credit Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ENTERGY CORPORATION
By
Name:
Title:
EXHIBIT B-1
FORM OF NOTICE OF CONTRACT BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Pennsway, Suite 200
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the Credit
Agreement, dated as of May __, 2000 (the "Credit Agreement", the
terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Administrative Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement that the undersigned hereby requests a
Contract Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such
Contract Borrowing (the "Proposed Contract Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Contract Borrowing is
, 20 .
(ii) The Type of Contract Advances to be made in connection
with the Proposed Contract Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Contract
Borrowing is $ .
(iv) The Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Contract Borrowing is
month[s]1.
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Contract Borrowing:
_______________________________
1 Delete for Base Rate Advances.
(A) the representations and warranties contained in
Section 4.01 of the Credit Agreement are correct, before and
after giving effect to the Proposed Contract Borrowing and
to the application of the proceeds therefrom, as though made
on and as of such date; and
(B) no event has occurred and is continuing, or would
result from such Proposed Contract Borrowing or from the
application of the proceeds therefrom, that constitutes a
Prepayment Event or an Event of Default or would constitute
an Event of Default but for the requirement that notice be
given or time elapse or both.
Very truly yours,
ENTERGY CORPORATION
By
Name:
Title:
EXHIBIT B-2
FORM OF NOTICE OF AUCTION BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Pennsway, Suite 200
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the Credit
Agreement, dated as of May __, 2000 (the "Credit Agreement", the
terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Administrative Agent for said Lenders, and
hereby gives you notice pursuant to Section 2.03 of the Credit
Agreement that the undersigned hereby requests an Auction
Borrowing under the Credit Agreement, and in that connection sets
forth the terms on which such Auction Borrowing (the "Proposed
Auction Borrowing") is requested to be made:
(A) Date of Auction Borrowing
(B) Amount of Auction Borrowing
(C) Maturity Date
(D) Interest Rate Basis and Margin1
(E) Interest Computation Basis
(F) Interest Payment Date(s)
(G) Prepayment
(H)
(I)
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Auction Borrowing:
_______________________________
1 Include if applicable.
(a) the representations and warranties contained in
Section 4.01 of the Credit Agreement are correct, before and
after giving effect to the Proposed Auction Borrowing and to
the application of the proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is continuing, or would
result from the Proposed Auction Borrowing or from the
application of the proceeds therefrom, that constitutes a
Prepayment Event or an Event of Default or would constitute
an Event of Default but for the requirement that notice be
given or time elapse or both; and
(d) after giving effect to the Proposed Auction
Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any
Auction Reduction).
The undersigned hereby confirms that the Proposed Auction
Borrowing is to be made available to it in accordance with
Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
ENTERGY CORPORATION
By
Name:
Title:
EXHIBIT B-3
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Pennsway, Suite 200
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the Credit
Agreement, dated as of May __, 2000 (the "Credit Agreement", the
terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders party thereto and
Citibank, N.A., as Administrative Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.10 of
the Credit Agreement, that the undersigned hereby requests a
Conversion under the Credit Agreement, and in that connection
sets forth below the information relating to such Conversion (the
"Proposed Conversion") as required by Section 2.10 of the Credit
Agreement:
(i) The Business Day of the Proposed Conversion is
__________, _____.
(ii) The Type of Advances comprising the Proposed
Conversion is [Base Rate Advances] [Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed
Conversion is $__________.
(iv) The Type of Advances to which such Advances are
proposed to be Converted is [Base Rate Advances] [Eurodollar
Rate Advances].
(v) The Interest Period for each Advance made as part
of the Proposed Conversion is month(s).1
_______________________________
1 Delete for Base Rate Advances
The undersigned hereby represents and warrants that the
following statements are true on the date hereof, and will be
true on the date of the Proposed Conversion:
(A) The Borrower's request for the Proposed Conversion
is made in compliance with Section 2.10 of the Credit
Agreement; and
(B) The statements contained in Section 3.02 of the
Credit Agreement are true.
Very truly yours,
ENTERGY CORPORATION
By
Name:
Title:
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ___________, 20__
Reference is made to the Credit Agreement, dated as of
May __, 2000 (as amended, modified or supplemented from time to
time, the "Credit Agreement"), among Entergy Corporation, a
Delaware corporation (the "Borrower"), the Lenders (as defined in
the Credit Agreement) and Citibank, N.A., as Administrative Agent
for the Lenders (the "Administrative Agent"). Terms defined in
the Credit Agreement are used herein with the same meaning.
(the "Assignor") and (the
"Assignee") agree as follows:
(a) The Assignor hereby sells and assigns to the Assignee
without recourse, and the Assignee hereby purchases and assumes
from the Assignor, that interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Auction Advances and Auction
Notes) which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the
Credit Agreement (other than in respect of Auction Advances and
Auction Notes), including, without limitation, such interest in
the Assignor's Commitment, the Contract Advances owing to the
Assignor, and the Contract Note[s] held by the Assignor. After
giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Contract Advances owing to the
Assignee will be as set forth in Section 2 of Schedule 1.
(b) The Assignor (A) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (B) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto;
(C) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any
of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and
(D) attaches the Contract Note[s] referred to in paragraph 1
above and requests that the Administrative Agent exchange such
Contract Note[s] for a new Contract Note payable to the order of
the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto or new Contract Notes payable to the
order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment retained by the Assignor under the
Credit Agreement, respectively, as specified on Schedule 1
hereto. Except as specified in this Section 2, the assignment
hereunder shall be without recourse to the Assignor.
(c) The Assignee (A) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment and Acceptance; (B) agrees that it will, independently
and without reliance upon the Administrative Agent, the Assignor
or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Credit Agreement; (C) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (D) agrees that it
will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender; [and] (E) specifies
as its, Domestic Lending Office (and address for notices) and
Eurodollar Lending Office the offices set forth beneath its name
on the signature pages hereof [and (vi) attaches the forms
prescribed by the Internal Revenue Service of the United States
certifying that it is exempt from United States withholding taxes
with respect to all payments to be made to the Assignee under the
Credit Agreement and the Notes].1
(d) Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered
to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Schedule 1
hereto (the "Effective Date"); provided, however, that in no
event shall this Assignment and Acceptance become effective prior
to the payment for the processing and recordation fee to the
Administrative Agent as provided in Section 8.07(a) of the Credit
Agreement.
(e) Upon such acceptance and recording by the
Administrative Agent, as of the Effective Date, (A) the Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (B) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit
Agreement.
(f) Upon such acceptance and recording by the
Administrative Agent, from and after the Effective Date, the
Administrative Agent shall make all payments under the Credit
Agreement and the Contract Notes in respect of the interest
assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement
and the Contract Notes for periods prior to the Effective Date
directly between themselves.
(g) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
_______________________________
1 If the Assignee is organized under the laws of a jurisdiction
outside the United States.
(h) This Assignment and Acceptance may be signed in any
number of counterparts, each of which shall be deemed an
original, with the same effect as if the signatures thereto and
hereto were up on the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1 hereto.
[NAME OF ASSIGNOR]
By
Name:
Title:
[NAME OF ASSIGNEE]
By
Name:
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this day
of , 20__
CITIBANK, N.A., as Administrative Agent
By
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated __________, 20__
Section (a)
Percentage Interest: %
Section (b)
Assignee's Commitment: $
Aggregate Outstanding Principal
Amount of Contract Advances owing $
to the Assignee:
A Contract Note payable to the
order of the Assignee
Dated: _________, 20__
Principal amount: $
[A Contract Note payable to the order of the Assignor
Dated: _________, 20__
Principal amount: $ ]
Section (c)
Effective Date1: _________, 20__
_______________________________
1 This date should be no earlier than the date of acceptance by
the Administrative Agent.
EXHIBIT D
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[Date]
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Administrative Agent
Entergy Corporation
Ladies and Gentlemen:
I have acted as counsel to Entergy Corporation, a Delaware
corporation (the "Borrower"), in connection with the preparation,
execution and delivery of the Credit Agreement, dated as of
May __, 2000, by and among the Borrower, the Banks parties
thereto and the other Lenders from time to time parties thereto
and Citibank, N.A., as Administrative Agent. This opinion is
furnished to you at the request of the Borrower pursuant to
Section 3.01(a)(v) of the Credit Agreement. Unless otherwise
defined herein or unless the context otherwise requires, terms
defined in the Credit Agreement are used herein as therein
defined.
In such capacity, I have examined:
(i) Counterparts of the Credit Agreement, executed by
the Borrower;
(ii) The Contract Notes, executed by the Borrower;
(iii) The form of the Auction Notes to be executed
and delivered by the Borrower in connection with Auction
Borrowings;
(iv) The Certificate of Incorporation of the Borrower
(the "Charter");
(v) The Bylaws of the Borrower (the "Bylaws");
(vi) A certificate of the Secretary of State of the
State of Delaware, dated __________, 2000, attesting to the
continued corporate existence and good standing of the
Borrower in that State;
(vii) A Certificate of the Secretary of State of
the State of Louisiana, dated __________, 2000, attesting
that the Borrower is a foreign corporation duly qualified to
conduct business in that state;
(viii) A copy of the Orders dated February 26, 1997
and December 22, 1999, of the Securities and Exchange
Commission (File No. 70-8903) under the Public Utility
Holding Company Act of 1935 (collectively, the "SEC Order");
and
(ix) The other documents furnished by the Borrower to
the Administrative Agent pursuant to Section 3.01(a) of the
Credit Agreement.
I have also examined such other corporate records of the
Borrower, certificates of public officials and of officers of the
Borrower, and agreements, instruments and other documents, as I
have deemed necessary as a basis for the opinions expressed
below.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, and
the conformity with the originals of all documents submitted to
me as copies. In making my examination of documents and
instruments executed or to be executed by persons other than the
Borrower, I have assumed that each such other person had the
requisite power and authority to enter into and perform fully its
obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof and
the due execution and delivery thereof by or on behalf of such
person of each such document and instrument. In the case of any
such person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it was
created, and is duly qualified and in good standing in each other
jurisdiction where the failure to be so qualified could
reasonably be expected to have a material effect upon its ability
to execute, deliver and/or perform its obligations under any such
document or instrument.. I have further assumed that each
document, instrument, agreement, record and certificate reviewed
by me for purposes of rendering the opinions expressed below has
not been amended by any oral agreement, conduct or course of
dealing between the parties thereto.
As to questions of fact material to the opinions expressed
herein, I have relied upon certificates and representations of
officers of the Borrower (including but not limited to those
contained in the Credit Agreement and certificates delivered upon
the execution and delivery of the Credit Agreement) and of
appropriate public officials, without independent verification of
such matters except as otherwise described herein.
Whenever my opinions herein with respect to the existence or
absence of facts are stated to be to my knowledge or awareness,
it is intended to signify that no information has come to my
attention or the attention of other counsel working under my
direction in connection with the preparation of this opinion
letter that would give me or them actual knowledge of the
existence or absence of such facts. However, except to the
extent expressly set forth herein, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to my or
their knowledge of the existence or absence of such facts should
be assumed.
On the basis of the foregoing, having regard for such legal
consideration as I deem relevant, and subject to the other
limitations and qualifications contained in this letter, I am of
the opinion that:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business as a foreign
corporation in each jurisdiction in which the nature of the
business conducted or the property owned, operated or leased by
it requires such qualification.
(b) The execution, delivery and performance by the Borrower
of the Credit Agreement and the Notes are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Charter or the
Bylaws or (ii) law or (iii) any contractual or legal restriction
binding on or affecting the Borrower. The Credit Agreement and
the Contract Notes have been duly executed and delivered on
behalf of the Borrower. When completed in the form thereof
attached as Exhibit A-2 to the Credit Agreement, and executed by
an authorized officer of the Borrower and delivered on behalf of
the Borrower, each Auction Note will have been duly executed and
delivered by the Borrower.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement and the
Notes, except for the SEC Order, which has been obtained, is
final and in full force and effect, and is not the subject of any
appeal.
(d) Except as disclosed in the Borrower's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999, and in the
Borrower's Quarterly Report on Form 10-Q for the period ended
March 31, 2000, there is no pending or, to the best of my
knowledge, threatened action or proceeding affecting the Borrower
or any of its subsidiaries before any court, governmental agency
or arbitrator that reasonably could be expected to affect
materially and adversely the condition (financial or otherwise),
operations, business, properties or prospects of the Borrower or
its ability to perform its obligations under the Credit Agreement
or any Note, or that purports to affect the legality, validity,
binding effect or enforceability of the Credit Agreement or any
Note. To the best of my knowledge, after inquiry, there has been
no change in any matter disclosed in such filings that reasonably
could be expected to result in such a material adverse effect.
(e) The Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended, or an
"investment adviser" within the meaning of the Investment
Advisers Act of 1940, as amended.
(f) The Credit Agreement and the Contract Notes constitute,
and the Auction Notes, when completed in the form thereof
attached as Exhibit A-2 to the Credit Agreement and executed by
an authorized officer of the Borrower and delivered on behalf of
the Borrower in accordance with the terms of the Credit
Agreement, will constitute, the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
My opinions above are subject to the following
qualifications:
(i) My opinions are subject, as to enforceability, to
(A) bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors rights generally and
(B) the application of general principles of equity,
including but not limited to the right to have specific
performance of contract obligations, regardless of whether
considered in a proceeding in equity or at law.
(ii) My opinion in paragraph (a) above, insofar as it
relates to the due incorporation, valid existence and good
standing of the Borrower under Delaware law, is given
exclusively in reliance upon a certification of the
Secretary of State of Delaware, upon which I believe I am
justified in relying. A copy of such certification has been
provided to you.
(iii) My opinion set forth in paragraph (c) above
as to the obtaining of necessary governmental and regulatory
approvals is based solely upon a review of those laws that,
in my experience, are normally applicable to the Borrower in
connection with transactions of the type contemplated by the
Credit Agreement.
(iv) My opinion in paragraph (f) above as to the
legality, validity, binding nature and enforceability of the
Credit Agreement and the Notes is given in reliance upon a
legal opinion of even date herewith of Thelen Reid & Priest
LLP, New York counsel to the Borrower, and is subject to the
assumptions, limitations and qualifications contained
therein. A copy of the legal opinion of Thelen Reid &
Priest LLP, is being provided to you contemporaneously
herewith.
Notwithstanding the qualifications set forth above, I have no
actual knowledge of any matter within the scope of said
qualifications that would cause me to change the opinions set
forth in this letter.
I am licensed to practice law only in the States of
Louisiana and Mississippi and, except as otherwise provided
herein, my role as counsel to the Company is limited to matters
involving the laws of the State of Louisiana and the federal laws
of the United States of America. Except to the extent otherwise
expressly set forth herein, and except with respect to matters
governed by the General Corporation Law of Delaware, I render no
opinion on the laws of any other jurisdiction or any subdivision
thereof, and have made no independent investigation into any such
laws except as specifically provided herein.
My opinions are expressed as of the date hereof, and I do
not assume any obligation to update or supplement my opinions to
reflect any fact or circumstance that hereafter comes to my
attention, or any change in law that hereafter occurs.
This opinion letter is being provided exclusively to and for
the benefit of the addressees hereof. It is not to be furnished
to or relied upon by any other party for any other purpose,
without prior express written authorization from us, except that
(A) Thelen Reid & Priest LLP may rely hereon in connection with
their opinion to you of even date herewith on behalf of the
Borrower as to matters of New York law, (B) King & Spalding
hereby is authorized to rely on this letter in the rendering of
their opinion to the Lenders dated as of the date hereof; and
(C) any addressee of this letter may deliver a copy hereof to any
person that becomes a Lender under the Credit Agreement after the
date hereof, and such person may rely on this opinion as if it
had been addressed and delivered to it on the date hereof as an
original Bank that was a party to the Credit Agreement.
Very truly yours,
Ann G. Roy
Bank Addressees:
EXHIBIT E
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE AGENT
May 18, 2000
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Administrative Agent
Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A.,
individually and as Administrative Agent, in connection with the
preparation, execution and delivery of the Credit Agreement,
dated as of May 18, 2000 (the "Credit Agreement"), among Entergy
Corporation, the Banks parties thereto and Citibank, N.A., as
Administrative Agent. Terms defined in the Credit Agreement are
used herein as therein defined.
In this connection, we have examined the following
documents:
(a) a counterpart of the Credit Agreement, executed by the
parties thereto;
(b) the Contract Notes to the order of each Bank;
(c) the form of the Auction Notes, attached as Exhibit A-2
to the Credit Agreement, to be executed and delivered by the
Borrower in connection with any Auction Borrowing; and
(d) the other documents furnished to the Administrative
Agent pursuant to Section 3.01(a) of the Credit Agreement,
including (without limitation) the opinion (the "Opinion") of Ann
G. Roy, counsel to the Borrower.
In our examination of the documents referred to above, we
have assumed the authenticity of all such documents submitted to
us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that you have independently
evaluated, and are satisfied with, the creditworthiness of the
Borrower and the business terms reflected in the Credit
Agreement. We have relied, as to factual matters, on the
documents we have examined.
To the extent that our opinions expressed below involve
conclusions as to matters governed by law other than the law of
the State of New York, we have relied upon the Opinion and have
assumed without independent investigation the correctness of the
matters set forth therein, our opinions expressed below being
subject to the assumptions, qualifications and limitations set
forth in the Opinion.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the opinion that the
Credit Agreement and the Contract Notes are, and upon their
completion, execution and delivery in accordance with the terms
of the Credit Agreement, the Auction Notes will be, the legal,
valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
Our opinion is subject to the following qualifications:
(i) The enforceability of the Borrower's obligations
under the Credit Agreement and the Notes is subject to the
effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar law
affecting creditors' rights generally.
(ii) The enforceability of the Borrower's obligations
under the Credit Agreement and the Notes is subject to the
effect of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law). Such principles of
equity are of general application, and, in applying such
principles, a court, among other things, might not allow a
contracting party to exercise remedies in respect of a
default deemed immaterial, or might decline to order an
obligor to perform covenants.
(iii) We note further that, in addition to the
application of equitable principles described above, courts
have imposed an obligation on contracting parties to act
reasonably and in good faith in the exercise of their
contractual rights and remedies, and may also apply public
policy considerations in limiting the right of parties
seeking to obtain indemnification under circumstances where
the conduct of such parties is determined to have
constituted negligence.
(iv) We express no opinion herein as to (A) Section
8.05 of the Credit Agreement, (B) the enforceability of
provisions purporting to grant to a party conclusive rights
of determination, (C) the availability of specific
performance or other equitable remedies, (D) the
enforceability of rights to indemnity under federal or state
securities laws or (E) the enforceability of waivers by
parties of their respective rights and remedies under law.
(v) Our opinions expressed above are limited to the
law of the State of New York, and we do not express any
opinion herein concerning any other law.
The foregoing opinion is solely for your benefit and may not
be relied upon by any other person or entity, other than any
Person that may become a Lender under the Credit Agreement after
the date hereof.
Very truly yours,
_______________________________
1 Delete for Base Rate Advances.
2 Include if applicable.
3 Delete for Base Rate Advances
1 If the Assignee is organized under the laws of a jurisdiction
outside the United States.
1 This date should be no earlier than the date of acceptance by
the Administrative Agent.