Exhibit 4(a)
U.S. $1,425,000,000
CREDIT AGREEMENT
Dated as of May 16, 2002
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 & Book Manager
ABN AMRO BANK N.V.,
THE BANK OF NEW YORK,
and
BARCLAYS BANK PLC
as Co-Syndication Agents
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. CERTAIN DEFINED TERMS. 1
SECTION 1.02. COMPUTATION OF TIME PERIODS. 9
SECTION 1.03. ACCOUNTING TERMS. 10
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 10
SECTION 2.01. THE ADVANCES. 10
SECTION 2.02. MAKING THE ADVANCES. 10
SECTION 2.03. FEES. 11
SECTION 2.04. ADJUSTMENT OF THE COMMITMENTS. 12
SECTION 2.05. REPAYMENT OF ADVANCES. 13
SECTION 2.06. INTEREST ON ADVANCES. 13
SECTION 2.07. ADDITIONAL INTEREST ON EURODOLLAR RATE
ADVANCES. 14
SECTION 2.08. INTEREST RATE DETERMINATION. 14
SECTION 2.09. CONVERSION OF ADVANCES. 15
SECTION 2.10. PREPAYMENTS. 16
SECTION 2.11. INCREASED COSTS. 16
SECTION 2.12. ILLEGALITY. 17
SECTION 2.13. PAYMENTS AND COMPUTATIONS. 17
SECTION 2.14. TAXES. 18
SECTION 2.15. SHARING OF PAYMENTS, ETC. 20
SECTION 2.16. EXTENSION OF TERMINATION DATE. 20
SECTION 2.17. NOTELESS AGREEMENT; EVIDENCE OF
INDEBTEDNESS. 22
ARTICLE III CONDITIONS OF LENDING 23
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ADVANCES. 23
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING. 24
SECTION 3.03. CONDITIONS PRECEDENT TO EACH EXTENSION OF
THE REVOLVING PERIOD. 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES 25
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
BORROWER. 25
ARTICLE V COVENANTS OF THE BORROWER 27
SECTION 5.01. AFFIRMATIVE COVENANTS. 27
SECTION 5.02. NEGATIVE COVENANTS. 30
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES 32
SECTION 6.01. EVENTS OF DEFAULT. 32
SECTION 6.02. REMEDIES. 33
ARTICLE VII THE AGENT 33
SECTION 7.01. AUTHORIZATION AND ACTION. 33
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. 34
SECTION 7.03. CITIBANK AND AFFILIATES. 34
SECTION 7.04. LENDER CREDIT DECISION. 35
SECTION 7.05. INDEMNIFICATION. 35
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENT. 35
ARTICLE VIII MISCELLANEOUS 36
SECTION 8.01. AMENDMENTS, ETC. 36
SECTION 8.02. NOTICES, ETC. 36
SECTION 8.03. NO WAIVER; REMEDIES. 37
SECTION 8.04. COSTS AND EXPENSES; INDEMNIFICATION. 37
SECTION 8.05. RIGHT OF SET-OFF. 38
SECTION 8.06. BINDING EFFECT. 39
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS. 39
SECTION 8.08. GOVERNING LAW. 43
SECTION 8.09. CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. 43
SECTION 8.10. EXECUTION IN COUNTERPARTS. 44
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule II - Commitment Schedule
EXHIBITS
Exhibit A-1 - Form of Notice of Borrowing
Exhibit A-2 - Form of Notice of Conversion
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Opinion of Counsel for the Borrower
Exhibit D - Form of Opinion of Special New York
Counsel to the Administrative Agent
CREDIT AGREEMENT
Dated as of May 16, 2002
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):
"Additional Lender" has the meaning specified in
Section 2.04(c)(i).
"Advance" means an advance by a Lender to the Borrower
as part of a Borrowing and refers to a Base Rate Advance or
a Eurodollar Rate Advance, each of which shall be a "Type"
of 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.
"Applicable Margin" means, (i) for any Base Rate
Advance, the 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) for any Eurodollar
Rate Advance, (A) on any date the Utilization Percentage
equals or is less than 33%, the Eurodollar 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 (B) on
any date the Utilization Percentage exceeds 33%, the
Utilized Eurodollar 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
A- or Level 1 Level 2 Level 3 BBB-*
S&P better and BBB+ and and or
Moody's and or better BBB or BBB- or below
A3 or and better better Baa3*
better Baa1 or and and
better Baa2 or Baa3 or
better better
Interest Rate Per Annum
Eurodollar Margin 0.750% 0.850% 1.050% 1.125% 1.875%
Base Rate Margin 0.000% 0.000% 0.000% 0.000% 1.000%
Utilized Eurodollar 0.875% 0.975% 1.175% 1.250% 2.125%
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.
"Approved Fund" means, with respect to any Lender that
is a fund that invests in bank loans, any other fund that
invests in commercial loans and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"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 B hereto.
"Base Rate" means, for any period, a fluctuating
interest rate per annum at all times equal to the higher of:
(i) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(ii) 1/2 of 1% per annum above the Federal Funds Rate in effect
from time to time.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.06(a).
"Borrowing" means a borrowing consisting of
simultaneous Advances of the same Type made by each of the
Lenders pursuant to Section 2.01 or Converted pursuant to
Section 2.08 or 2.09.
"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.
"Commitment Increase" has the meaning specified in
Section 2.04(c)(i).
"Commitment Increase Approvals" means any governmental
or regulatory authorization or approval or resolution of the
Board of Directors of the Borrower not obtained by or on
behalf of the Borrower and in full force and effect on the
date hereof, which governmental or regulatory authorization
or approval or resolution is required to be obtained in
order to authorize the Commitment Increase and the
performance by the Borrower of its obligations under this
Agreement after giving effect to the Commitment Increase.
"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.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Advances of one Type into 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 2.08 or 2.09.
"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, a financial institution Affiliate
of any Lender or an Approved Fund 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
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 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 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 2.08.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.06(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 the Third Amended and
Restated Credit Agreement, dated as of May 17, 2001, among
the Borrower, certain banks and Citibank, as agent for such
banks.
"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 17, 2002, among the Borrower, the Administrative
Agent and Salomon Smith Barney Inc.
"Granting Lender" has the meaning specified in Section
8.07(j).
"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.
"Increasing Lender" has the meaning specified in
Section 2.04(c)(i).
"Interest Period" means, for each Advance made as part
of the same Borrowing, the period commencing on the date of
such Advance or the date of the Conversion of any Advance
into such an 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 (or
any period of less than one month that ends on the last day
of the Revolving Period or on the first anniversary of the
last day of the Revolving Period, in the event the Borrower
shall have made the Term Election) 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
Advances made as part of the same 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 to which
are owed at least 66-2/3% of the then aggregate unpaid
principal amount of the Advances, 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 Advances or
having such amount of the Commitments or (ii) determining
the aggregate unpaid principal amount of the 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.
"Notice of Borrowing" has the meaning specified in
Section 2.02(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, ABN Amro Bank, N.V.,
The Bank of New York and Barclays Bank PLC.
"Register" has the meaning specified in
Section 8.07(c).
"Relevant Rating" means the 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 15, 2003, or such later date as to
which the Lenders may from time to time agree pursuant to
Section 2.16.
"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.
"SPC" has the meaning specified in Section 8.07(j).
"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 2.16(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) date of termination in whole of the Commitments
pursuant to Section 2.04 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.
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 Advances.
Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time
to time on any Business Day during the period from the date
hereof until the last day of the Revolving Period 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 2.04(a) or (b) or Section 2.16 or increased
pursuant to Section 2.04(c) (such Lender's "Commitment"). Each
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 Advances of the same Type and, in the case of
Eurodollar Rate Advances, 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 2.10 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; provided further that, on the date hereof, the
aggregate amount of the Commitments shall not exceed
$1,500,000,000.
SECTION 2.02. Making the Advances.
(a) Each Borrowing shall be made on notice, given (i) in the
case of a 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 Borrowing, and (ii) in the
case of a Borrowing comprising Base Rate Advances, not later than
11:00 A.M. (New York City time) on the date of the proposed
Borrowing, by the Borrower to the Administrative Agent, which
shall give to each Lender prompt notice thereof. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be
transmitted by telecopier, telex or cable, confirmed immediately
in writing, in substantially the form of Exhibit A-1 hereto,
specifying therein the requested (A) date of such Borrowing,
(B) Type of Advances to be made in connection with such
Borrowing, (C) aggregate amount of such Borrowing, and (D) in the
case of a Borrowing comprising Eurodollar Rate Advances, initial
Interest Period for each such Advance. Each Lender shall, before
(x) 12:00 noon (New York City time) on the date of any Borrowing
comprising Eurodollar Rate Advances, and (y) 1:00 P.M. (New York
City time) on the date of any 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 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 Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Notice of 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 Borrowing for such 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 Advance to be made by such
Lender as part of such Borrowing when such 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 Borrowing that such Lender
will not make available to the Administrative Agent such Lender's
ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative Agent on the date of such 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
Advances made in connection with such 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
Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date
of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by
such other Lender on the date of any Borrowing.
SECTION 2.03. Fees.
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 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 2.04, 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
Less Less Less below
A- or than than than BBB-*
S&P better Level 1 Level 2 Level 3 or
Moody's and and BBB+ and and below
A3 or or BBB or BBB- or Baa3*
better better better better
and and and
Baa1 or Baa2 or Baa3 or
better better better
Rate Per Annum
Facility Fee 0.125% 0.150% 0.200% 0.250% 0.375%
*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.
SECTION 2.04. 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 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.
(c) (i) On any date on or prior to the last day of the
Revolving Period, the Borrower may increase the aggregate amount
of the Commitments by an amount not less than $5,000,000 and to
an amount not to exceed $2,000,000,000 (any such increase, a
"Commitment Increase") by designating either one or more of the
existing Lenders (each of which, in its sole discretion, may
determine whether and to what degree to participate in such
Commitment Increase) or one or more other Eligible Assignees
reasonably acceptable to the Administrative Agent that at the
time agree, in the case of any such Eligible Assignee that is an
existing Lender, to increase its Commitment (an "Increasing
Lender") and, in the case of any other Eligible Assignee (an
"Additional Lender"), to become a party to this Agreement. The
sum of the increases in the Commitments of the Increasing Lenders
pursuant to this subsection (c) plus the Commitments of the
Additional Lenders upon giving effect to the Commitment Increase
shall not in the aggregate exceed the amount of the Commitment
Increase. The Borrower shall provide prompt notice of any
proposed Commitment Increase pursuant to this Section 2.04(c) to
the Administrative Agent, which shall promptly provide a copy of
such notice to the Lenders.
(ii) Any Commitment Increase shall become effective upon (A) the
receipt by the Administrative Agent of (1) an agreement in form
and substance satisfactory to the Administrative Agent signed by
the Borrower, each Increasing Lender and each Additional Lender,
setting forth the new Commitments of each such Lender and setting
forth the agreement of each Additional Lender to become a party
to this Agreement and to be bound by all the terms and provisions
hereof binding upon each Lender, and (2) certified copies of the
Commitment Increase Approvals and such opinions of counsel for
the Borrower with respect to the Commitment Increase as the
Administrative Agent may reasonably request, (B) the funding by
each Lender of the Advance(s) to be made by each such Lender
described in paragraph (iii) below and (C) receipt by the
Administrative Agent of a certificate (the statements contained
in which shall be true) of a duly authorized officer of the
Borrower stating that both before and after giving effect to such
Commitment Increase (1) no Event of Default and no Prepayment
Event has occurred and is continuing, (2) all representations and
warranties made by such Borrower in this Agreement are true and
correct in all material respects, and (3) all Commitment Increase
Approvals have been obtained and are in full force and effect.
(iii) Upon the effective date of any Commitment Increase, the
Borrower shall prepay the outstanding Borrowings (if any) in
full, and shall simultaneously make new Borrowings hereunder in
an amount equal to such prepayment, so that, after giving effect
thereto, the Borrowings are held ratably by the Lenders in
accordance with their respective Commitments (after giving effect
to such Commitment Increase). Prepayments made under this
paragraph (iii) shall not be subject to the notice requirements
of Section 2.10.
(iv) Notwithstanding any provision contained herein to the
contrary, from and after the date of any Commitment Increase and
the making of any Advances on such date pursuant to paragraph
(iii) above, all calculations and payments of the facility fee
and of interest on the Advances shall take into account the
actual Commitment of each Lender and the principal amount
outstanding of each Advance made by such Lender during the
relevant period of time.
SECTION 2.05. Repayment of Advances.
The Borrower shall repay the principal amount of each
Advance made by each Lender on the Termination Date.
SECTION 2.06. Interest on Advances.
The Borrower shall pay interest on the unpaid principal
amount of each Advance made by each Lender from the date of such
Advance until such principal amount shall be paid in full, at the
following rates per annum:
(a) Base Rate Advances. If such 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 2.07, if such
Advance is a Eurodollar Rate Advance, a rate per annum equal at
all times during the Interest Period for such 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 2.07. 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 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 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 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 2.08. 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 2.06(a) and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable
interest rate under Section 2.06(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
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
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 2.09. Conversion of 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 2.08 and
2.12, on any Business Day, Convert all Advances of one Type made
in connection with the same 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 A-2 hereto, specifying therein
(i) the date of such Conversion, (ii) the 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 Advance.
(b) Mandatory. If a Borrower shall fail to select the Type of
any Advance or the duration of any Interest Period for any
Borrowing comprising Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period"
in Section 1.01 and Section 2.09(a), or if any proposed
Conversion of a 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 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 termination of the
Commitments.
SECTION 2.10. 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 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 2.11. 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 2.12. 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 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 2.09.
SECTION 2.13. Payments and Computations.
(a) The Borrower shall make each payment hereunder 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,
2.07, 2.11, 2.14 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 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, 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 clause (i) of the
definition of "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, the Federal Funds Rate or clause (ii) of the definition of
"Base Rate" and of facility fees shall be made by the
Administrative Agent, and all computations of interest pursuant
to Section 2.07 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 2.07, by a Lender) of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder 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 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 2.14. Taxes.
(a) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.13, 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 to any Lender or the Administrative Agent,
(i) the sum payable shall be increased (unless and to the extent
that (x) the Borrower is required to deduct such Taxes because
any Lender fails to provide the Administrative Agent and the
Borrower with the forms described in subsection (d) below and
(y) such Lender is entitled to an exemption from United States
withholding taxes with respect to such sum payable) as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.14) 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 from the execution, delivery or registration
of, or otherwise with respect to, this Agreement (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 2.14)
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 2.14, 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. 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 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 2.14 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 2.14 shall survive the payment
in full of principal and interest hereunder.
SECTION 2.15. 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 Advances made by it (other than
pursuant to Section 2.02(c), 2.07, 2.11, 2.14 or 8.04(b)) in
excess of its ratable share of payments on account of the
Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the
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 2.15 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 2.16. 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 3.03, 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(g) 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 3.03, 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(g) 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(g) hereof.
(e) Subject to the satisfaction of the condition set forth in
Section 3.03(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
3.03(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 2.16 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 2.16.
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Advance made by
such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time
hereunder.
(b) The Administrative Agent shall also maintain accounts in
which it will record (i) the amount of each Advance made
hereunder, the Type thereof and the Interest Period (if any) with
respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to
each Lender hereunder, and (iii) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant
to subsections (a) and (b) above shall be prima facie evidence of
the existence and amounts of the obligations therein recorded;
provided, however, that the failure of the Administrative Agent
or any Lender to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to
repay such obligations in accordance with their terms.
(d) Any Lender may request that its Advances be evidenced by one
or more promissory notes. In such event, the Borrower shall
prepare, execute and deliver to such Lender one or more
promissory notes payable to the order of such Lender and in a
form acceptable to the Borrower and the Administrative Agent.
Thereafter, the Advances evidenced by such note(s) and interest
thereon shall at all times (including after any assignment
pursuant to Section 8.07) be represented by notes from the
Borrower, payable to the order of the payee named therein or any
assignee pursuant to Section 8.07, except to the extent that any
such Lender or assignee subsequently returns any such notes for
cancellation and requests that such Borrowings once again be
evidenced as in subsections (a) and (b) above.
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
notes described in paragraph (i)) with one copy for each Lender:
(i) A promissory note payable to the order of each Lender that
requests one pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement, and of all
documents evidencing other necessary corporate action with
respect to this Agreement (other than any Commitment Increase
Approvals);
(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 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 (other than any Commitment Increase
Approvals) required for the due execution, delivery and
performance of this Agreement, including, without limitation, a
copy of the order (File No. 70-9749) of the SEC under the Public
Utility Holding Company Act of 1935 authorizing the Borrower's
execution, delivery and performance of this Agreement (the "SEC
Order");
(iv) Copies of the consolidated balance sheets of the Borrower
and its subsidiaries as of December 31, 2001, 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, 2002, 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 C hereto and as to such other matters as any Lender
through the Administrative Agent may reasonably request; and
(vi) A favorable opinion of King & Spalding, Special New York
counsel for the Administrative Agent, substantially in the form
of Exhibit D hereto.
(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 Borrowing.
The obligation of each Lender to make an Advance on the
occasion of each Borrowing (including the initial Borrowing)
shall be subject to the further conditions precedent that on the
date of such Borrowing:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing or Notice of
Conversion and the acceptance by the Borrower of any proceeds of
a Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such 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 Borrowing does not increase the aggregate outstanding
principal amount of Advances over the aggregate outstanding
principal amount of all Advances immediately prior to the making
of such Borrowing) are correct on and as of the date of such
Borrowing, before and after giving effect to such 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 Borrowing or from the application of the proceeds
therefrom, that constitutes a Prepayment Event or an Event of
Default or would constitute a Prepayment Event or an Event of
Default 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 Extension of the
Revolving Period.
In the event that the Borrower shall request an extension of
the Revolving Period pursuant to Section 2.16, 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-Consenting Lender's
Commitment has been assigned pursuant to Section 8.07(g) 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 2.03 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 2.16 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 a
Prepayment Event or an Event of Default 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 are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action (other
than any corporate action constituting a Commitment Increase
Approval, which, on and at all times following the date of any
Commitment Increase, will have been obtained and will not have
been revoked), and do not contravene (i) the Borrower's charter
or by-laws, (ii) law applicable to the Borrower or its
properties, subject to the receipt of all Commitment Increase
Approvals, 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 (other than any authorization or approval or
other action constituting a Commitment Increase Approval, which,
on and at all times following the date of any Commitment
Increase, will have been obtained and will be final and in full
force and effect and not subject to appeal, rehearing, review or
reconsideration) is required for the due execution, delivery and
performance by the Borrower of this Agreement, 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. 70-9749 and (ii) the SEC Order.
(d) This Agreement is the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with
its 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, 2001 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 Deloitte & Touche LLP, and
the consolidated financial statements of the Borrower and its
subsidiaries as of March 31, 2002, 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, 2002, 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, 2002, since December 31, 2001, 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, 2001, and the
Borrower's Quarterly Report on Form 10-Q for the period ended
March 31, 2002, 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 that purports to affect the legality, validity,
binding effect or enforceability of this Agreement. 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
a Prepayment Event or an Event of Default 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 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 Deloitte & Touche 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 an 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 a Prepayment
Event or 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 or 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.
70-9749 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 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
senior unsecured long-term debt of such Person 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
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 hereunder) 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 Advances, all interest
thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, 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
Advances, 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 Advances),
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;
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 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; (ii) 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; (iii) 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; (iv) 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 (v) 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 and the Advances made by 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 Advances then outstanding
to each of them (or if no Advances are at the time outstanding,
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 a Prepayment Event or an 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,
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
or 3.03, (b) increase the Commitments of the Lenders (other than
pursuant to Section 2.04(c)) or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the Advances or any fees or other amounts payable hereunder,
(d) other than pursuant to Section 2.16 hereof, postpone any date
fixed for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable hereunder,
(e) other than pursuant to Section 2.04(b) or Section 2.16
hereof, change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances, or the number
of Lenders that shall be required for the Lenders or any of them
to take any action hereunder or (f) amend this Section 8.01 or
Section 2.16; 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, and provided further, that this Agreement
may be amended and restated without the consent of any Lender or
the Administrative Agent if, upon giving effect to such amendment
and restatement, such Lender or the Administrative Agent, as the
case may be, shall no longer be a party to this Agreement (as so
amended and restated) or have any Commitment or other obligation
hereunder and shall have been paid in full all amounts payable
hereunder to such Lender or the Administrative Agent, as the case
may be.
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 Penns
Way, Suite 200, New Castle, Delaware 19720, Attention: Bank Loan
Syndications, Paul Joseph (Telephone: 302-894-6016, 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 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 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 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 Advance, as a result of a payment or
Conversion pursuant to Section 2.04(c)(iii), 2.08(d), 2.09, 2.10
or 2.12, acceleration of the maturity of the Advances pursuant to
Section 6.02, assignment to another Lender upon demand of the
Borrower pursuant to Section 8.07(g) or (h) 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 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 or any
transaction contemplated hereby, 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 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. The Borrower also
agrees not to assert any claim against any Lender, any of such
Lender's affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to this Agreement,
any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances.
SECTION 8.05. Right of Set-off.
Upon (i) the occurrence and during the continuance of any
Prepayment Event or Event of Default 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 Advances due
and payable pursuant to the provisions of Section 6.02, 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, whether or not
such Lender shall have made any demand under this Agreement 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 and the Advances owing to it); provided,
however, that (i) the Borrower (unless a Prepayment Event or an
Event of Default shall have occurred and be continuing) and the
Administrative Agent shall have consented to such assignment
(with each 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; (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 promissory notes held by the
assigning Lender and a processing and recordation fee of $3,500
(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 or Approved Fund 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 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 promissory
notes held by the assigning Lender, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit B 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.
(e) 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 and the Advances owing to 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 maker of any
such Advance 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.
(f) 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.
(g) If any Lender shall fail to consent to the extension of the
Termination Date pursuant to Section 2.16, then upon notification
by the Administrative Agent of such Lender's refusal pursuant to
Section 2.16(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 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(g) 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 B hereto and (ii) shall offer compensation to such Lender
in an amount equal to the sum of the principal amount of all
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.
(h) If any Lender shall make any demand for payment under
Section 2.11 or 2.14, or if any Lender shall be the subject of
any notification or assertion of illegality under Section 2.12,
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 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 (h) 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, 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 (h), 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, at any time from and after
such later occurring day in accordance with Sections 2.04 and
2.10 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 (h) to the contrary, the Borrower shall not be
entitled to compel the assignment by any Lender demanding payment
under Section 2.11(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.
(i) 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.
(j) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Lender identified as
such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Advance that such Granting
Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any such SPC to make any
Advance, (ii) if such SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Advance, the
Granting Lender shall be obligated to make such Advance pursuant
to the terms hereof and (iii) no SPC or Granting Lender shall be
entitled to receive any greater amount pursuant to Section 2.11
or 8.04(b) than the Granting Lender would have been entitled to
receive had the Granting Lender not otherwise granted such SPC
the option to provide any Advance to the Borrower. The making of
an Advance by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Advance
were made by such Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would
otherwise be liable so long as, and to the extent that, the
related Granting Lender provides such indemnity or makes such
payment. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute
against or join any other person in instituting against such SPC
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or
any State thereof. Notwithstanding the foregoing, the Granting
Lender unconditionally agrees to indemnify the Borrower, the
Administrative Agent and each Lender against all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be incurred by or asserted against the
Borrower, the Administrative Agent or such Lender, as the case
may be, in any way relating to or arising as a consequence of any
such forbearance or delay in the initiation of any such
proceeding against its SPC. Each party hereto hereby
acknowledges and agrees that no SPC shall have the rights of a
Lender hereunder, such rights being retained by the applicable
Granting Lender. Accordingly, and without limiting the
foregoing, each party hereby further acknowledges and agrees that
no SPC shall have any voting rights hereunder and that the voting
rights attributable to any Advance made by an SPC shall be
exercised only by the relevant Granting Lender and that each
Granting Lender shall serve as the administrative agent and
attorney-in-fact for its SPC and shall on behalf of its SPC
receive any and all payments made for the benefit of such SPC and
take all actions hereunder to the extent, if any, such SPC shall
have any rights hereunder. In addition, notwithstanding anything
to the contrary contained in this Agreement any SPC may (i) with
notice to, but without the prior written consent of any other
party hereto, assign all or a portion of its interest in any
Advances to the Granting Lender and (ii) disclose on a
confidential basis any information relating to its Advances to
any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC.
This Section 8.07(j) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Advance
is being funded by an SPC at the time of such amendment.
SECTION 8.08. Governing Law.
THIS AGREEMENT AND ANY NOTE ISSUED PURSUANT TO SECTION 2.17
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 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 ADMINISTRATIVE 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 INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER.
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.
[The remainder of this page intentionally left blank.]
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 /s/ Steven C. McNeal
Steven C. McNeal
Vice President and Treasurer
CITIBANK, N.A.,
as Administrative Agent and Bank
By /s/ Anita J. Brickell
Name: Anita J. Brickell
Title: Vice President
BANKS
ABN AMRO BANK N.V.
By /s/ Mark Lasek
Name: Mark Lasek
Title: Senior Vice President
By /s/ Frank van Deur
Name: Frank van Deur
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ Steven Kalachman
Name: Steven Kalachman
Title: Vice President
BARCLAYS BANK PLC
By /s/ Douglas Bernegger
Name: Douglas Bernegger
Title: Director
MIZUHO CORPORATE BANK LIMITED
By /s/ Toru Meada
Name: Toru Maeda
Title: General Manager, Houston
Agency
BNP PARIBAS
By /s/ Francis J. DeLaney
Name: Francis J. DeLaney
Title: Director
By /s/ Mark A. Renaud
Name: Mark A. Renaud
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By /s/ William W. Hunter
Name: William W. Hunter
Title: Director
By /s/ Marianne Weinzinger
Name: Marianne Weinzinger
Title: Director
JPMORGAN CHASE BANK
By /s/ Steven Wood
Name: Steven Wood
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Brian J. McInnes
Name: Brian J. McInnes
Title: Senior Vice President
SOCIETE GENERALE
By /s/ Gordon R. Eaton
Name: Gordon R. Eaton
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Rotcher Watkins
Name: Rotcher Watkins
Title: Managing Director
BANK ONE, NA
(Main Office-Chicago)
By /s/ Mary Lu D. Cramer
Name: Mary Lu D. Cramer
Title: Director
MELLON BANK, N.A.
By /s/ Mark W. Rogers
Name: Mark W. Rogers
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ N. Bell
Name: N. Bell
Title: Senior Manager
MORGAN STANLEY BANK
By /s/ Jaap L. Tonckens
Name: Jaap L. Tonckens
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ David M. Musicant
Name: David M. Musicant
Title: Senior Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
By /s/ Michael E. Keating
Name: Michael E. Keating
Title: Managing Director
By /s/ Hans-C Narberhaus
Name: Hans-C. Narberhaus
Title: Vice President
KBC BANK N.V.
By /s/ Robert Snauffer
Name: Robert Snauffer
Title: First Vice president
By /s/ Eric Raskin
Name: Eric Raskin
Title: Vice President
LEHMAN COMMERCIAL PAPER INC.
By /s/ Michele Swanson
Name: Michele Swanson
Title: Authorized Signatory
REGIONS BANK
By /s/ Bill Pope
Name: Bill Pope
Title: F.V. P.
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Anthony Alessandro
Name: Anthony Alessandro
Title: Associate Director
By /s/ Paul Verdi
Name: Anthony Alessandro
Title: Associate Director
SCHEDULE I
ENTERGY CORPORATION
U.S. $1,425,000,000 Credit Agreement
Name of Bank Domestic Eurodollar
Lending Office Lending Office
ABN AMRO Bank N.V. 135 South LaSalle 135 South LaSalle
Street Street
Suite 2805 Suite 2805
Chicago, IL 60603 Chicago, IL 60603
Attn: Credit Attn: Credit
Administration Administration
Telephone: 312-904- Telephone: 312-904-
8835 8835
Fax: 312-904-8840 Fax: 312-904-8840
Bank One, NA 1 Bank One Plaza, 1 Bank One Plaza,
Suite IL1-0634 Suite IL1-0634
Chicago, IL 60670 Chicago, IL 60670
Attn: Mattie Attn: Mattie
Flournoy, Client Flournoy, Client
Service Associate Service Associate
Telephone: 312-732- Telephone: 312-732-
5219 5219
Fax: 312-732-4840 Fax: 312-732-4840
Barclays Bank PLC 222 Broadway 222 Broadway
8th Floor 8th Floor
New York, NY 10038 New York, NY 10038
Bayerische Hypo-und Bayerische Hypo-und Bayerische Hypo-und
Vereinsbank AG, New Vereinsbank Vereinsbank
York Branch AG, New York AG, Grand Cayman
Branch Branch
150 East 42nd c/o Bayerische Hypo-
Street und
New York, NY 10017 Vereinsbank AG
150 East 42nd Street
New York, NY 10017
BNP Paribas 787 Seventh Avenue 787 Seventh Avenue
New York, N.Y. New York, N.Y.
10019 10019
Telephone: 212-841- Telephone: 212-841-
2000 2000
Fax: 212-841-2555 Fax: 212-841-2555
Citibank, N.A. One Court Square One Court Square
Seventh Floor, Zone Seventh Floor, Zone
1 1
Long Island City, Long Island City, NY
NY 11120 11120
Attn: John Mann Attn: John Mann
Telephone: 718-248- Telephone: 718-248-
4504 4504
Fax: 718-248-4844 Fax: 718-248-4844
Deutsche Bank AG New 31 West 52nd Street 31 West 52nd Street
York Branch New York, N.Y. New York, N.Y. 10019
10019
JPMorgan Chase Bank 1 Chase Manhattan 1 Chase Manhattan
Plaza, 8th Floor Plaza, 8th Floor
New York, N.Y. New York, N.Y. 10081
10081 Attn: Thomas
Attn: Thomas Albertelli
Albertelli Telephone: 212-552-
Telephone: 212-552- 7451
7451 Fax: 212-552-5701
Fax: 212-552-5701
KBC Bank N.V. KBC Bank N.V. KBC Bank N.V.
New York Branch New York Branch
125 West 55th 125 West 55th Street
Street New York, NY 10019
New York, NY 10019
Lehman Commercial 745 7th Avenue 745 7th Avenue
Paper Inc. New York, N.Y. New York, N.Y. 10019
10019
Mellon Bank, N.A. Three Mellon Three Mellon Center,
Center, Room 1203 Room 1203
Pittsburgh, PA Pittsburgh, PA 15259-
15259-0003 0003
Attn: Brenda Attn: Brenda
Leierzapf Leierzapf
Telephone: 412-234- Telephone: 412-234-
8161 8161
Fax: 412-209-6146 Fax: 412-209-6146
Mizuho Corporate 1221 McKinney 1221 McKinney Street
Bank Limited Street Suite 4100
Suite 4100 Houston, TX 77010
Houston, TX 77010
Morgan Stanley Bank 1585 Broadway 1585 Broadway
New York N.Y. 10036 New York N.Y., 10036
Regions Bank 301 St. Charles 301 St. Charles
Avenue Avenue
New Orleans, LA New Orleans, LA
70130 70130
Societe Generale 560 Lexington 560 Lexington Avenue
Avenue New York, N.Y. 10022
New York, N.Y. Attn: Margaret Ayala
10022 Telephone: 212-278-
Attn: Margaret 6971
Ayala Fax: 212-278-7490 or
Telephone: 212-278- 212-278-7343
6971
Fax: 212-278-7490
or
212-278-
7343
The Bank of New York One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
Attn: Dennis M. Attn: Dennis M.
Pidherny/ Pidherny/
Jo-Anne Evans Jo-Anne Evans
Telephone: 212-635- Telephone: 212-635-
7547 7547
Fax: 212-635-7923 Fax: 212-635-7923
The Bank of Nova The Bank of Nova The Bank of Nova
Scotia Scotia Scotia
Atlanta Agency Atlanta Agency
600 Peachtree 600 Peachtree Street
Street N.E. N.E.
Suite 2700 Suite 2700
Atlanta, GA 30308 Atlanta, GA 30308
The Royal Bank of 101 Park Avenue 101 Park Avenue
Scotland plc. 12th Floor 12th Floor
New York, NY 10178 New York, NY 10178
Attn: Sheila Shaw/ Attn: Sheila Shaw/
Juanita Baird Juanita Baird
Telephone: 212-401- Telephone: 212-401-
1406/1420 1406/1420
Fax: 212-401-1336 Fax: 212-401-1336
Union Bank of 445 South Figueroa 445 South Figueroa
California Street Street
15th Floor 15th Floor
Los Angeles, CA Los Angeles, CA
90071 90071
Wachovia Bank, 191 Peachtree 191 Peachtree Street
National Association Street Atlanta, Georgia
Atlanta, Georgia 30303
30303 Attn: Loan
Attn: Loan Administration
Administration
Westdeutsche 1211 Avenue of the 1211 Avenue of the
Landesbank Americas Americas
Girozentrale, New New York, NY 10036 New York, NY 10036
York Branch
SCHEDULE II
COMMITMENT SCHEDULE
Name of Lender Commitment Amount
Citibank, N.A. 150,000,000
ABN AMRO Bank N.V. 125,000,000
The Bank of New York 125,000,000
Barclays Bank PLC 125,000,000
Mizuho Corporate Bank Limited 75,000,000
BNP Paribas 75,000,000
Bayerische Hypo-und Vereinsbank AG, New 75,000,000
York Branch
JPMorgan Chase Bank 75,000,000
The Royal Bank of Scotland plc 75,000,000
Societe Generale 75,000,000
Wachovia Bank, National Association 75,000,000
Bank One, NA 50,000,000
Mellon Bank, N.A. 50,000,000
The Bank of Nova Scotia 50,000,000
Morgan Stanley Bank 50,000,000
Union Bank of California, N.A. 50,000,000
Deutsche Bank AG New York Branch 25,000,000
KBC Bank N.V. 25,000,000
Lehman Commercial Paper Inc. 25,000,000
Regions Bank 25,000,000
Westdeutsche Landesbank Girozentrale, New 25,000,000
York Branch --------------
Total Commitment: $1,425,000,000
==============
EXHIBIT A-1
FORM OF NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way, 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 16, 2002 (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
Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
, 20 .
(ii) The Type of Advances to be made in connection with the
Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed Borrowing is $
..
(iv) The Interest Period for each Eurodollar Rate Advance made as
part of the Proposed 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 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 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 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 A-2
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way, 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 16, 2002 (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 2.09 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 2.09 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).2
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:
_______________________________
2 Delete for Base Rate Advances
(A) The Borrower's request for the Proposed Conversion is made
in compliance with Section 2.09 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 B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ___________, 20__
Reference is made to the Credit Agreement, dated as of
May 16, 2002 (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 which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the
Credit Agreement, including, without limitation, such interest in
the Assignor's Commitment and the Advances owing to the Assignor.
After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee
will be as set forth in Section b 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; and
(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. Except as
specified in this Section b, 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 (F) 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].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 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 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.
(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.
- ---------------------------
1 If the Assignee is organized under the laws of a jurisdiction
outside the United States.
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 Advances owing $
to the Assignee:
Section (c)
Effective Date1: _________, 20__
- --------------------
1 This date should be no earlier than the date of acceptance by
the Administrative Agent.
EXHIBIT C
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 16, 2002, 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 Certificate of Incorporation of the Borrower (the
"Charter");
(iii) The Bylaws of the Borrower (the "Bylaws");
(iv) A certificate of the Secretary of State of the State of
Delaware, dated May __, 2002, attesting to the continued
corporate existence and good standing of the Borrower in that
State;
(v) A Certificate of the Secretary of State of the State of
Louisiana, dated May __, 2002, attesting that the Borrower is a
foreign corporation duly qualified to conduct business in that
state;
(vi) A copy of the Order dated April 3, 2001 of the Securities
and Exchange Commission (File No. 70-9749) under the Public
Utility Holding Company Act of 1935 (the "SEC Order"); and
(vii) 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 are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action
(other than any corporate action constituting a Commitment
Increase) and do not contravene (i) the Charter or the Bylaws or
(ii) law, subject to the receipt of all Commitment Increase
Approvals, or (iii) any contractual or legal restriction binding
on or affecting the Borrower. The Credit Agreement has been duly
executed and delivered on behalf of the Borrower.
(c) No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body
(other than any authorization or approval or other action
constituting a Commitment Increase Approval), is required for the
due execution, delivery and performance by the Borrower of the
Credit Agreement, 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, 2001, and in the
Borrower's Quarterly Report on Form 10-Q for the period ended
March 31, 2002, 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 that purports to affect the legality, validity,
binding effect or enforceability of the Credit Agreement. 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 constitutes the legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its 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 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 State of Louisiana
and, except as otherwise provided herein, my role as counsel to
the Borrower 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,
Denise C. Redmann
Assistant General Counsel
Bank Addressees:
EXHIBIT D
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE AGENT
[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:
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 16, 2002 (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; and
(b) 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 Denise C.
Redmann, 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 is the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with
its terms.
Our opinion is subject to the following qualifications:
(i) The enforceability of the Borrower's obligations under the
Credit Agreement 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 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,