Exhibit 4(a) 12
$100,000,000
CREDIT AGREEMENT
Dated as of September 13, 1996
Among
ENTERGY CORPORATION
and
ENTERGY TECHNOLOGY HOLDING COMPANY,
as Borrowers
THE BANKS NAMED HEREIN
as Banks
and
THE BANK OF NEW YORK
as Agent
CREDIT AGREEMENT
Dated as of September 13, 1996
ENTERGY CORPORATION, a Delaware corporation, ENTERGY
TECHNOLOGY HOLDING COMPANY, a Delaware corporation, the BANKS
listed on the signature pages hereof, and THE BANK OF NEW YORK,
as agent for the Lenders hereunder, agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.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):
"Adjusted CD Rate" means, for any Interest Period for
each Adjusted CD Rate Advance made as part of the same Contract
Borrowing, an interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the
rate of interest determined by the Agent to be the average
(rounded upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the consensus
bid rate determined by each of the Reference Banks for the bid
rates per annum, at 9:00 A.M. (New York City time) (or as soon
thereafter as practicable) on the first day of such Interest
Period, of New York certificate of deposit dealers of recognized
standing selected by such Reference Bank for the purchase at face
value of certificates of deposit of such Reference Bank in an
amount substantially equal to such Reference Bank's Adjusted CD
Rate Advance made as part of such Contract Borrowing and with a
maturity equal to such Interest Period, by (ii) a percentage
equal to 100% minus the Adjusted CD Rate Reserve Percentage for
such Interest Period, plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each Adjusted CD
Rate Advance made as part of the same Contract Borrowing shall be
determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks
on the first day of such Interest Period, subject, however, to
the provisions of Section 2.09.
"Adjusted CD Rate Advance" means a Contract Advance
that bears interest as provided in Section 2.07(b).
"Adjusted CD Rate Reserve Percentage" for the Interest
Period for each Adjusted CD Rate Advance made as part of the same
Contract Borrowing means the reserve percentage applicable on the
first day of such Interest Period 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, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with deposits
exceeding one billion dollars with respect to liabilities
consisting of or including (among other liabilities) U.S. dollar
nonpersonal time deposits in the United States with a maturity
equal to such Interest Period.
"Advance" means a Contract Advance or an Auction
Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or is
under common control with such Person or is a director or officer
of such Person.
"Agent" means The Bank of New York, as agent for the
Lenders hereunder, and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office witereunder,
and any successor Agent appointed hereunder.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD Lending Office in the case of
an Adjusted CD Rate Advance, and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such Lender notified by such
Lender to the Agent as its Applicable Lending Office wit
ffiliate" 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 benef ffiliate"
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 benef ffiliate"
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 benef ffiliate"
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 benef ffiliate"
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 benef ffiliate"
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 benef ffiliate"
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 benef first day of such
Interest Period, subject, however, to the provisions of Section
2.09.
"Eurodollar Rate Advance" means a Contract Advance that
bears interest as provided in Section 2.07(c).
"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.
"Event of Default" has the meaning specified in Section
6.01.
"FCC" means the United States Federal Communications
Commission.
"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 Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain letter agreement, dated
September 13, 1996, between Entergy and the Agent.
"Guaranteed Obligations" has the meaning specified in
Section 8.01.
"Guarantor" means Entergy, in its capacity as Guarantor
under Article VIII hereof.
"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.
"Gulf States" means Entergy Gulf States, Inc. (formerly
Gulf States Utilities Company), a Texas corporation.
"Interest Period" means, for each Contract Advance made
as part of the same Contract Borrowing, the period commencing on
the date of such Contract Advance or the date of the Conversion
of any Contract Advance into such a Contract Advance and ending
on the last day of the period selected by the applicable 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 such Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be 30, 60, 90, 180 or, subject
to availability from each Lender, 270 or 360 days in the case of
an Adjusted CD Rate Advance, and 1, 2, 3, 6 or, subject to
availability from each Lender, 9 or 12 months in the case of a
Eurodollar Rate Advance, in each case as the applicable Borrower
may, upon notice received by the 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) such Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for Contract Advances made as part of the same Contract
Borrowing shall be of the same duration; and
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended
to occur on the next succeeding Business Day, provided that,
in the case of any Interest Period for a Eurodollar Rate
Advance, 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 of the
Significant Subsidiaries and 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 9.07.
"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.
"Louisiana" means Entergy Louisiana, Inc. (formerly
Louisiana Power & Light Company), a Louisiana corporation.
"Majority Lenders" means at any time Lenders holding at
least 66-2/3% of the then aggregate unpaid principal amount of
the Contract Notes held by Lenders, or, if no such principal
amount is then outstanding, Lenders having at least 66-2/3% of
the Commitments (without giving effect to any termination in
whole of the Commitments pursuant to Section 6.02), provided
that, for purposes hereof, neither Borrower, nor any of their
respective Affiliates, if a Lender, shall be included in (i) the
Lenders holding such amount of the Contract Advances or having
such amount of the Commitments or (ii) determining the aggregate
unpaid principal amount of the Contract Advances or the total
Commitments.
"Mississippi" means Entergy Mississippi, Inc. (formerly
Mississippi Power & Light Company), a Mississippi corporation.
"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 Entergy 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.
"New Orleans" means Entergy New Orleans, Inc. (formerly
New Orleans Public Service Inc.), a Louisiana corporation.
"Non-Recourse Debt" means any Debt of any subsidiary of
Entergy that does not also constitute Debt of Entergy, any
Significant Subsidiary or New Orleans.
"Note" means a Contract Note or an Auction Note.
"Notice of Auction Borrowing" has the meaning specified
in Section 2.03(a).
"Notice of Contract 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 either 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.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"Reference Bank" means BNY.
"Register" has the meaning specified in Section
9.07(c).
"Reportable Event" has the meaning assigned to that
term in Title IV of ERISA.
"S&P" means Standard & Poor's Rating Group or any
successor thereto.
"SEC" means the United States Securities and Exchange
Commission.
"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 Arkansas, Gulf States,
Louisiana, Mississippi and SERI, and any other domestic regulated
utility subsidiary of Entergy: (i) the total assets (after
intercompany eliminations) of which exceed 5% of the total
consolidated assets of Entergy and its subsidiaries or (ii) the
net worth of which exceeds 5% of the Consolidated Net Worth of
Entergy and its subsidiaries, in each case as shown on the most
recent audited consolidated balance sheet of Entergy and its
subsidiaries.
"Support Obligations" means any financial obligation,
contingent or otherwise, of any Person guaranteeing or otherwise
supporting any Debt or other obligation of any other Person in
any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the
payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the owner of such Debt of
the payment of such Debt, (iii) to maintain the 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.
"Termination Date" means September 12, 1999 or such
later date that may be established from time to time pursuant to
Section 2.17 hereof, or, in either case, the earlier date of
termination in whole of the Commitments pursuant to Section 2.05
or Section 6.02 hereof.
"Yield" means, for any Auction Advance, the effective
rate per annum at which interest on such Auction Advance is
payable, computed on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is
payable.
SECTION I.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" mean "to but
excluding."
SECTION I.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 II.01. The Contract Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set
forth, to make Contract Advances to either Borrower from time to
time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount (with respect
to both of the Borrowers, collectively) not to exceed at any time
outstanding the amount set opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the
Register maintained by the Agent pursuant to Section 9.07(c), as
such amount may be reduced pursuant to Section 2.05 (such
Lender's "Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount of the Auction Advances
then outstanding and such deemed use of the aggregate amount of
the Commitments shall be applied to the Lenders ratably according
to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being an "Auction Reduction"). Each
Contract Borrowing shall be in an amount not less than $2,500,000
or an integral multiple of $1,000,000 in excess thereof and shall
consist of Contract Advances of the same Type and, in the case of
Eurodollar Rate Advances or Adjusted CD 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 Borrowers may from
time to time borrow, prepay pursuant to Section 2.11 and reborrow
under this Section 2.01; provided, however, that at no time may
the principal amount outstanding hereunder exceed the aggregate
amount of the Commitments.
SECTION II.02. Making the Contract Advances. (a)
Each Contract Borrowing shall be made on notice, given (i) in the
case of a Contract Borrowing comprising Adjusted CD Rate Advances
or Eurodollar Rate Advances, not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the
proposed Contract Borrowing, and (ii) in the case of a Contract
Borrowing comprising Base Rate Advances, not later than 11:00
A.M. (New York City time) on the date of the proposed Contract
Borrowing, by the applicable Borrower to the Agent, which shall
give to each Lender prompt notice thereof. Each such notice of a
Contract Borrowing (a "Notice of Contract Borrowing") shall be by
telecopier, telex or cable, confirmed immediately in writing, in
substantially the form of Exhibit B-1 hereto, specifying therein
the requested (A) date of such Contract Borrowing, (B) Type of
Contract Advances to be made in connection with such Contract
Borrowing, (C) aggregate amount of such Contract Borrowing, and
(D) in the case of a Contract Borrowing comprising Adjusted CD
Rate Advances or Eurodollar Rate Advances, initial Interest
Period for each such Contract Advance. Each Lender shall, before
(x) 12:00 noon (New York City time) on the date of any Contract
Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate
Advances, and (y) 1:00 P.M. (New York City time) on the date of
any Contract Borrowing comprising Base Rate Advances, make
available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 9.02, in same day
funds, such Lender's ratable portion of such Contract Borrowing.
After the Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Agent
will make such funds available to the applicable Borrower at the
Agent's aforesaid address.
(b) Each Notice of Contract Borrowing shall be
irrevocable and binding on the applicable Borrower. In the case
of any Notice of Contract Borrowing requesting Adjusted CD Rate
Advances or Eurodollar Rate Advances, the applicable Borrower
shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Contract Borrowing
for such Contract Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the
Contract Advance to be made by such Lender as part of such
Contract Borrowing when such Contract Advance, as a result of
such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a
Lender prior to the date of any Contract Borrowing that such
Lender will not make available to the Agent such Lender's ratable
portion of such Contract Borrowing, the Agent may assume that
such Lender has made such portion available to the Agent on the
date of such Contract Borrowing in accordance with subsection (a)
of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the applicable 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 Agent, such Lender and the applicable Borrower (following the
Agent's demand on such Lender for the corresponding amount)
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower
until the date such amount is repaid to the Agent, at (i) in the
case of such Borrower, the interest rate applicable at the time
to Contract Advances made in connection with such Contract
Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's
Contract Advance as part of such Contract Borrowing for purposes
of this Agreement.
(d) The failure of any Lender to make the Contract
Advance to be made by it as part of any Contract Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder
to make its Contract Advance on the date of such Contract
Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Contract Advance to be made by such
other Lender on the date of any Contract Borrowing.
SECTION II.03. The Auction Advances. (a) Each Lender
severally agrees that either Borrower may request Auction
Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the
date occurring 15 days prior to the Termination Date in the
manner set forth below; provided that, following the making of
each Auction Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any
Auction Reduction).
(i) A Borrower may request an Auction Borrowing
by delivering to the Agent (A) by telecopier, telex or
cable, confirmed immediately in writing, a notice of an
Auction Borrowing (a "Notice of Auction Borrowing"), in
substantially the form of Exhibit B-2 hereto, specifying the
date and aggregate amount of the proposed Auction Borrowing,
the maturity date for repayment of each Auction Advance to
be made as part of such Auction Borrowing (which maturity
date may not be earlier than the date occurring 14 days
after the date of such Auction Borrowing or later than the
earlier to occur of (1) 180 days after the date of the
proposed Auction Borrowing and (2) the Termination Date),
the interest payment date or dates relating thereto (which
shall occur at least every 90 days), and any other terms to
be applicable to such Auction Borrowing, not later than
10:00 A.M. (New York City time) (x) at least one Business
Day prior to the date of the proposed Auction Borrowing, if
the applicable Borrower shall specify in the Notice of
Auction Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum and (y) at
least five Business Days prior to the date of the proposed
Auction Borrowing, if such Borrower shall specify in the
Notice of Auction Borrowing the basis (e.g., a quoted London
interbank offered rate or the Federal Funds Rate) to be used
by the Lenders in determining the rates of interest to be
offered by them and (B) payment in full to the Agent of the
aggregate auction administration fee specified in Section
2.04(b) hereof. The Agent, in turn, shall promptly notify
each Lender of each request for an Auction Borrowing
received by it from a Borrower by sending such Lender a copy
of the related Notice of Auction Borrowing.
(ii) Each Lender may, in its sole discretion, if
it elects to do so, irrevocably offer to make one or more
Auction Advances to the applicable Borrower as part of such
proposed Auction Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof
to the Borrower), before 10:00 A.M. (New York City time) (A)
on the date of such proposed Auction Borrowing, in the case
of a Notice of Auction Borrowing delivered pursuant to
clause (A)(x) of paragraph (i), above, and (B) three
Business Days before the date of such proposed Auction
Borrowing, in the case of a Notice of Auction Borrowing
delivered pursuant to clause (A)(y) of paragraph (i), above,
of the minimum amount and maximum amount of each Auction
Advance that such Lender would be willing to make as part of
such proposed Auction Borrowing (which amounts, subject to
the proviso to the first sentence of this Section 2.03(a),
may exceed such Lender's Commitment), the rate or rates of
interest therefor, the basis, rate and margin used by such
Lender (if applicable) in determining the rate or rates of
interest so offered and the Yield (if different from such
rate or rates), the interest period relating thereto and
such Lender's Applicable Lending Office with respect to such
Auction Advance; provided that, if the Agent in its capacity
as a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify the applicable Borrower of such
offer before 9:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Agent by
the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the Agent, before
10:00 A.M. (New York City time) on the date on which notice
of such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and
shall not, make any Auction Advance as part of such Auction
Borrowing; provided that the failure by any Lender to give
such notice shall not cause such Lender to be obligated to
make any Auction Advance as part of such proposed Auction
Borrowing.
(iii) The applicable Borrower shall, in turn, (A)
before 11:00 A.M. (New York City time) on the date of such
proposed Auction Borrowing, in the case of a Notice of
Auction Borrowing delivered pursuant to clause (A)(x) of
paragraph (i) above and (B) before 1:00 P.M. (New York City
time) three Business Days before the date of such proposed
Auction Borrowing, in the case of a Notice of Auction
Borrowing delivered pursuant to clause (A)(y) of paragraph
(i) above, either
(1) cancel such Auction Borrowing by
giving the Agent notice to that effect, or
(2) irrevocably accept one or more of
the offers made by any Lender or Lenders pursuant to
paragraph (ii) above, in its sole discretion, subject
only to the provisions of this paragraph (iii), by
giving notice to the Agent of the amount of each
Auction Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less
than the maximum amount, notified to such Borrower by
the Agent on behalf of such Lender for such Auction
Advance pursuant to paragraph (ii) above) to be made by
each Lender as part of such Auction Borrowing, and
reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Agent notice to that
effect; provided, however, that (w) the applicable
Borrower shall not accept an offer made pursuant to
paragraph (ii) above, at any Yield if such Borrower
shall have, or shall be deemed to have, rejected any
other offer made pursuant to paragraph (ii) above, at a
lower Yield, (x) if such Borrower declines to accept,
or is otherwise restricted by the provisions of this
Agreement from accepting, the maximum aggregate
principal amount of Auction Borrowings offered at the
same Yield pursuant to paragraph (ii) above, then such
Borrower shall accept a pro rata portion of each offer
made at such Yield, based as nearly as possible on the
ratio of the aggregate principal amount of such offers
to be accepted by such Borrower to the maximum
aggregate principal amount of such offers made pursuant
to paragraph (ii) above (rounding up or down to the
next higher or lower multiple of $1,000,000), (y) no
offer made pursuant to paragraph (ii) above shall be
accepted unless the Auction Borrowing in respect of
such offer is in an integral multiple of $1,000,000 and
the aggregate amount of such offers accepted by such
Borrower is equal to at least $2,500,000, and (z) no
offer made pursuant to paragraph (ii) above shall be
accepted at any interest rate in excess of the Base
Rate then in effect plus 2% per annum (or such higher
rate as may be permitted by applicable law, regulation
or order).
Any offer or offers made pursuant to paragraph (ii) above
not expressly accepted or rejected by the applicable
Borrower in accordance with this paragraph (iii) shall be
deemed to have been rejected by such Borrower.
(iv) If the applicable Borrower notifies the
Agent that such Auction Borrowing is canceled pursuant to
clause (1) of paragraph (iii) above, the Agent shall give
prompt notice thereof to the Lenders and such Auction
Borrowing shall not be made.
(v) If the applicable Borrower accepts one or
more of the offers made by any Lender or Lenders pursuant to
clause (2) of paragraph (iii) above, the Agent shall in turn
promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate
amount of such Auction Borrowing and whether or not any
offer or offers made by such Lender pursuant to paragraph
(ii) above have been accepted by such Borrower, (B) each
Lender that is to make an Auction Advance as part of such
Auction Borrowing of the amount of each Auction Advance to
be made by such Lender as part of such Auction Borrowing,
and (C) each Lender that is to make an Auction Advance as
part of such Auction Borrowing, upon receipt, that the Agent
has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender
that is to make an Auction Advance as part of such Auction
Borrowing shall, before 12:00 noon (New York City time) on
the date of such Auction Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall
have received notice from the Agent pursuant to clause (C)
of the preceding sentence, make available for the account of
its Applicable Lending Office to the Agent at its address
referred to in Section 9.02 such Lender's portion of such
Auction Borrowing, in same day funds. Upon fulfillment of
the applicable conditions set forth in Article III and after
receipt by the Agent of such funds, the Agent will make such
funds available to the applicable Borrower at the Agent's
aforesaid address. Promptly after each Auction Borrowing the
Agent will notify each Lender of the amount of the Auction
Borrowing, the consequent Auction Reduction and the dates
upon which such Auction Reduction commenced and will
terminate.
(vi) If the applicable Borrower accepts one or
more of the offers made by any Lender pursuant to clause (B)
of paragraph (iii) above, such Borrower shall indemnify such
Lender against any loss, cost or expense incurred by such
Lender as a result of any failure by such Borrower to
fulfill on or before the date specified for such Auction
Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or
redeployment of deposits or other funds acquired by such
Lender to fund the Auction Advance to be made by such Lender
as part of such Auction Borrowing when such Auction Advance,
as a result of such failure, is not made on such date.
(b) Each Auction Borrowing shall be in an amount not
less than $2,500,000 or an integral multiple of $1,000,000 in
excess thereof and, following the making of each Auction
Borrowing, the Borrower shall be in compliance with the
limitation set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth
in this Section 2.03, a Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to subsection
(d) below, and reborrow under this Section 2.03, provided that an
Auction Borrowing shall not be made within three Business Days of
the date of any other Auction Borrowing.
(d) The applicable Borrower shall repay to the Agent
for the account of each Lender that has made an Auction Advance,
or each other holder of an Auction Note, on the maturity date of
each Auction Advance (such maturity date being that specified by
such Borrower for repayment of such Auction Advance in the
related Notice of Auction Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Auction Note
evidencing such Auction Advance), the then unpaid principal
amount of such Auction Advance. A Borrower shall have no right
to prepay any principal amount of any Auction Advance unless, and
then only on the terms, specified by such Borrower for such
Auction Advance in the related Notice of Auction Borrowing
delivered pursuant to subsection (a)(i)(A) above and set forth in
the Auction Note evidencing such Auction Advance.
(e) The applicable Borrower shall pay interest on the
unpaid principal amount of each Auction Advance from the date of
such Auction Advance to the date the principal amount of such
Auction Advance is repaid in full, at the rate of interest for
such Auction Advance specified by the Lender making such Auction
Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or
dates specified by such Borrower for such Auction Advance in the
related Notice of Auction Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the Auction Note
evidencing such Auction Advance; provided, however, that, if and
for so long as a Prepayment Event or an Event of Default shall
have occurred and be continuing, the unpaid principal amount of
each Auction Advance shall (to the fullest extent permitted by
law) bear interest until paid in full at a rate per annum equal
at all times to the Base Rate plus 2% per annum, payable upon
demand.
(f) The indebtedness of the applicable Borrower
resulting from each Auction Advance made to such Borrower as part
of an Auction Borrowing shall be evidenced by a separate Auction
Note of such Borrower payable to the order of the Lender making
such Auction Advance.
SECTION II.04. Fees. Entergy agrees to pay to the
Agent for the account of each Lender a commitment fee on the
average daily unused portion of such Lender's Commitment (without
giving effect to any Auction Reduction) from the date hereof in
the case of each Bank, and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a
Lender, in the case of each other Lender, until the earlier to
occur of the Termination Date and, in the case of the termination
in whole of a Lender's Commitment pursuant to Section 2.05, the
date of such termination, payable on the last day of each March,
June, September and December during such period, and on the
Termination Date, at the rate per annum set forth below
determined by reference to combined Senior Debt Ratings from time
to time of the two Significant Subsidiaries (other than SERI)
having the highest Senior Debt Ratings:
Significant Subsidiary with
highest Senior Debt Rating
A- and BBB+ and BBB- and BB +
A3 Baal or Baa3 and/or
Senior or above BBB and or split Bal or
Debt Baa2 rated below
Rating or split above
rated
above
A-and A3 0.125% 0.1375% 0.18% 0.23%
or above
Significant BBB+ and 0.1375% 0.17% 0.1875% 0.25%
Subsidiary Baa1 or
with next BBB and
highest Baa2
Senior Debt or
Rating split rated
above
BBB- and 0.18% 0.1875% 0.20% 0.30%
Baa3
or
split rated
above
BB+ and/or 0.23% 0.25% 0.30% 0.30%
Bal
or below
or unrated
Any change in the commitment 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 II.05. (a) Reduction of the Commitments. (i)
Entergy shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the
Lenders, provided that the aggregate amount of the Commitments of
the Lenders shall not be reduced to an amount that is less than
the aggregate principal amount of the Auction Advances then
outstanding, and provided, further, that each partial reduction
shall be in the aggregate amount of $1,000,000 or an integral
multiple thereof.
(ii) Notwithstanding any other provision of this
Agreement or the Notes (and without further notice to the
Borrowers), 364 days following the date, if any, on which the
combined Senior Debt Ratings of the two Significant Subsidiaries
(other than SERI) having the highest Senior Debt Ratings shall be
BB+ or Bal or below, the Commitments hereunder shall terminate in
whole and this Agreement shall terminate.
(b) Increase of the Commitments. (i) Entergy may, by written
notice to the Agent (an "Increase Notice") substantially in the form
of Schedule 2.05(b) hereto, request that the aggregate Commitments
be increased up to the amount specified therein, which shall be
an integral multiple of $5,000,000 and shall not be greater than
$300,000,000 effective on the date specified in such Increase
Notice (the "Increase Date"), which shall be a Business Day
occurring not less than 25 (unless otherwise agreed to in writing
by the Lenders and the Agent) nor more than 30 days after the
date on which the Increase Notice shall have been given, and such
notice shall specify the requested amount by which the aggregate
amount of the Commitments is to increase, the names of any new
proposed lenders hereunder and the amount of their proposed
Commitments and, if the amount by which the aggregate amount of
the Commitments is requested to be increased shall exceed the
aggregate amount of the Commitments of such new proposed lenders,
the amount by which the Commitments of the existing Lenders are
requested to be increased. Promptly upon receipt of such
Increase Notice from Entergy, the Agent shall notify the Lenders
of the contents thereof. If applicable, each Lender shall
provide written notice to the Agent, no later than 21 days after
the date on which the Increase Notice shall have been given to
the Agent, of the amount, if any, by which such Lender agrees to
increase its Commitment. Promptly upon receipt of such notice
from any Lender the Agent shall notify Entergy of the contents
thereof. Upon the effectiveness of the increase in Commitments
pursuant to clause (ii) below, each of the new lenders shall
execute and deliver a counterpart of this Agreement, this
Agreement shall be amended by the Borrowers and the Agent to
reflect the increase, if any, in the Commitment of any existing
Lender and the identity and Commitments of such new lenders and
such new lenders shall be and become Lenders hereunder for all
purposes hereof and of the Loan Documents. In connection with
any such increase, the Borrowers shall execute and deliver new
Notes to appropriately reflect such new Commitments and the
Lenders (including such new lenders) shall effect such purchases
and sales among themselves of portions of the outstanding Loans
as shall be necessary to reflect such Commitments, as specified
by the Agent, and, in connection with such purchases and sales,
the applicable Borrower shall pay to each affected Lender an
amount equal to the amount such Borrower would have had to pay
pursuant to Section 9.04(b) if such Loans, or portions thereof,
were prepaid on such Increase Date.
(ii) An increase in Commitments shall become effective
on the Increase Date so long as each of the following conditions
shall have been fulfilled on and as of such date: (A) the Agent
shall have consented (such consent not to be unreasonably
withheld) to any such new lenders and to such increases in
Commitments, (B) the Agent shall have received opinions of
counsel to the Borrowers in form and substance satisfactory to
the Agent, (C) lenders who agree to become Lenders hereunder
shall have provided Commitments, together with the increased
Commitments of Lenders who shall have agreed to an increase of
their Commitments, in an aggregate amount equal to the amount of
the requested increase in the aggregate amount of the Commitments
set forth in the Increase Notice, (D) the conditions to the
making of Loans set forth in clause (i) of Section 3.02 shall be
fulfilled on and as of such Increase Date as if Loans were made
thereon and (E) the Agent shall have received such other
instruments and documents, in form and substance satisfactory to
it, as it shall have reasonably requested.
SECTION II.06. Repayment of Contract Advances. The
Borrowers shall repay the principal amount of each Contract
Advance made by each Lender in accordance with the Contract Note
to the order of such Lender and in any event no later than the
Termination Date.
SECTION II.07. Interest on Contract Advances. The
applicable Borrower shall pay interest on the unpaid principal
amount of each Contract Advance made by each Lender from the date
of such Contract Advance until such principal amount shall be
paid in full, at the following rates per annum:
(a) Base Rate Advances. If such Contract Advance is a
Base Rate Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time, 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) Adjusted CD Rate Advances. If such Contract
Advance is an Adjusted CD Rate Advance, a rate per annum equal at
all times during the Interest Period for such Contract Advance to
the sum of the Adjusted CD Rate for such Interest Period plus the
Applicable Margin for such Adjusted CD Rate Advance in effect
from time to time, payable on the last day of each Interest
Period for such Adjusted CD Rate Advance and on the date such
Adjusted CD Rate Advance shall be Converted or paid in full and,
if such Interest Period has a duration of more than 90 days, on
each day that occurs during such Interest Period every 90 days
from the first day of such Interest Period.
(c) Eurodollar Rate Advances. Subject to Section
2.08, if such Contract Advance is a Eurodollar Rate Advance, a
rate per annum equal at all times during the Interest Period for
such Contract Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin for such Eurodollar
Rate Advance in effect from time to time, payable on the last day
of each Interest Period for such Eurodollar Rate Advance and on
the date such Eurodollar Rate Advance shall be Converted or paid
in full and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period.
SECTION II.08. Additional Interest on Eurodollar Rate
Advances. The applicable Borrower shall pay to each Lender, so
long as such Lender shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurodollar Rate Advance of such
Lender, from the date of such Contract Advance until such
principal amount is paid in full, at an interest rate per annum
equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the Interest Period for such Contract
Advance from (ii) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such
Contract Advance. Such additional interest shall be determined by
such Lender and notified to the applicable Borrower through the
Agent, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
SECTION II.09. Interest Rate Determination. (a) The
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Adjusted CD Rate or
Eurodollar Rate, as applicable.
(b) The Agent shall give prompt notice to the
applicable Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a), (b)
or (c), and the applicable rate, if any, furnished by the
Reference Bank for the purpose of determining the applicable
interest rate under Section 2.07(b) or (c).
(c) If the Reference Bank shall not furnish timely
information to the Agent for determining the Adjusted CD Rate for
any Adjusted CD Rate Advances, or the Eurodollar Rate for any
Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the
applicable Borrower and the Lenders that the interest rate
cannot be determined for such Adjusted CD Rate Advances or
Eurodollar Rate Advances, as the case may be,
(ii) each such Advance will automatically, on the
last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance (or, if such Advance is
then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make, or
to Convert Contract Advances into, Adjusted CD Rate Advances
or Eurodollar Rate Advances, as the case may be, shall be
suspended until the Agent shall notify the Borrowers 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 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 Agent shall forthwith so notify the
applicable Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to
Convert Contract Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the
Borrowers and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION.10. Conversion of Contract Advances. (a) Voluntary.
The applicable Borrower may, upon notice given to the Agent not
later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to
the provisions of Sections 2.09 and 2.13, on any Business Day,
Convert all Contract Advances of one Type made in connection with
the same Contract Borrowing into Advances of another Type; provided,
however, that any Conversion of, or with respect to, any Adjusted
CD Rate Advances or Eurodollar Rate Advances into Advances of another
Type shall be made on, and only on, the last day of an Interest
Period for such Adjusted CD Rate Advances or Eurodollar Rate
Advances, unless the applicable Borrower shall also reimburse the
Lenders in respect thereof pursuant to Section 9.04(b) on the
date of such Conversion. Each such notice of a Conversion (a
"Notice of Conversion") shall be by telecopier, telex or cable,
confirmed immediately in writing, in substantially the form of
Exhibit B-3 hereto, specifying therein (i) the date of such
Conversion, (ii) the Contract Advances to be Converted, and (iii)
if such Conversion is into, or with respect to, Adjusted CD Rate
Advances or Eurodollar Rate Advances, the duration of the
Interest Period for each such Contract Advance.
(b) Mandatory. If a Borrower shall fail to select the
Type of any Contract Advance or the duration of any Interest
Period for any Contract Borrowing comprising Eurodollar Rate
Advances or Adjusted CD Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in
Section 1.01 and Section 2.10(a), or if any proposed Conversion
of a Contract Borrowing that is to comprise Eurodollar Rate
Advances or Adjusted CD Rate Advances upon Conversion shall not
occur as a result of the circumstances described in paragraph (c)
below, the Agent will forthwith so notify such 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 applicable Borrower. In the case of any Contract
Borrowing that is to comprise Eurodollar Rate Advances or
Adjusted CD Rate Advances upon Conversion, the applicable
Borrower agrees to indemnify each Lender against any loss, cost
or expense incurred by such Lender if, as a result of the failure
of such 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 Agent under
this Agreement and the Notes and the termination of the
Commitments.
SECTION .11. Prepayments. The applicable Borrower
may, upon at least two Business Days' notice to the Agent stating
the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall,
prepay the outstanding principal amounts of the Advances made as
part of the same Contract Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on
the principal amount prepaid; provided, however, that (i) each
partial prepayment shall be in an aggregate principal amount not
less than $1,000,000 or any integral multiple of $100,000 in
excess thereof and (ii) in the case of any such prepayment of an
Adjusted CD Advance or Eurodollar Rate Advance, the applicable
Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(b) on the date of such
prepayment.
SECTION .12. Increased Costs. (a) If, due to either
(i) the introduction of or any change (other than any change by
way of imposition or increase of reserve requirements, in the
case of Adjusted CD Rate Advances, included in the Adjusted CD
Rate Reserve Percentage or, 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 Adjusted CD
Rate Advances or Eurodollar Rate Advances, then Entergy shall
from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the 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 Entergy and the 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 Agent), Entergy shall immediately pay to the
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 Entergy and the Agent by such
Lender shall be conclusive and binding for all purposes, absent
manifest error.
SECTION .13. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent
that the introduction of or any change in or change in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of the Lenders to make, or to
Convert Contract Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer
exist and (ii) the Borrowers shall forthwith prepay in full all
Eurodollar Rate Advances of all Lenders then outstanding,
together with interest accrued thereon unless, in the case of
either Borrower, such Borrower, within five Business Days of
notice from the Agent, Converts all Eurodollar Rate Advances of
all Lenders then outstanding into Advances of another Type in
accordance with Section 2.10.
SECTION .14. Payments and Computations. (a) The
Borrowers shall make each payment hereunder and under the Notes
not later than 12:00 noon (New York City time) on the day when
due in U.S. dollars to the Agent at its address referred to in
Section 9.02 in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment fees ratably
(other than amounts payable pursuant to Section 2.02(c), 2.03,
2.08, 2.12, 2.15 or 9.04(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 9.07(d), from and after the
effective date specified in such Assignment and Acceptance, the
Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The applicable Borrower hereby authorizes each
Lender, if and to the extent payment owed to such Lender is not
made when due hereunder or under any Note held by such Lender, to
charge from time to time to the extent permitted by law against
any or all of such Borrower's accounts with such Lender any
amount so due.
(c) All computations of interest based on the Base
Rate shall be made by the 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 Adjusted CD Rate, the Eurodollar Rate or the Federal
Funds Rate and of commitment fees and interest payable on Auction
Advances shall be made by the Agent, and all computations of
interest pursuant to Section 2.08 shall be made by a Lender, on
the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest or
commitment fees are payable. Each determination by the Agent
(or, in the case of Section 2.08, by a Lender) of an interest
rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest or commitment 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 Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is
due to the Lenders hereunder that such Borrower will not make
such payment in full, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date and the 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 such Borrower shall
not have so made such payment in full to the Agent, each Lender
shall repay to the 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 Agent, at
the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained
herein, any amount payable by a Borrower hereunder or under any
Note that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall, to the fullest extent permitted
by law, bear interest from the date when due until paid in full
at a rate per annum equal at all times to the Base Rate plus 2%,
payable upon demand.
SECTION .15. Taxes. (a) Any and all payments by the
Borrowers hereunder or under the Contract Notes shall be made, in
accordance with Section 2.14, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such
Lender or the 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 a
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any
Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.15) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the applicable Borrower agrees to pay
any present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that arise
from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as
"Other Taxes").
(c) The applicable Borrower will indemnify each Lender
and the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.15)
paid by such Lender or the 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 Agent (as the case may be) makes written demand
therefor. Nothing herein shall preclude the right of such
Borrower to contest any such Taxes or Other Taxes so paid, and
the Lenders in question or the Agent (as the case may be) will,
following notice from, and at the expense of, such Borrower, take
such actions as such Borrower may reasonably request to preserve
such 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 Agent were
previously indemnified under this Section 2.15, pay to such
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 Entergy or the Agent, each Lender organized under the laws of
a jurisdiction outside the United States shall provide the Agent
and Entergy with the forms prescribed by the Internal Revenue
Service of the United States certifying that such Lender is
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or
exempt from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes.
If for any reason during the term of this Agreement, any Lender
becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender shall notify the
Agent and Entergy in writing to that effect. Unless Entergy and
the Agent have received forms or exempt from United States
withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during
the term of this Agreement, any Lender becomes unable to submit
the forms referred to above or the information or representations
contained therein are no longer accurate in any material respect,
such Lender shall notify the Agent and Entergy in writing to that
effect. Unless Entergy and the Agent have received forms or in
effect on such date; and (C) that attached thereto are true and
correct copies of all governmental and regulatory authorizations
and approvals required for the due execution, delivery and
performance of this Agreement and the Notes, including, in the
case of ETHC, a copy of the ETC Order applicable to ETHC;
(i) Copies of the consolidated balance sheets of
Entergy and its subsidiaries as of December 31, 1995, and
the related consolidated statements of income, retained
earnings and cash flows of Entergy and its subsidiaries for
the fiscal year then ended, and copies of the consolidated
financial statements of Entergy and its subsidiaries and
ETHC and its subsidiaries, respectively, as of June 30,
1996, in each case certified by a duly authorized officer of
Entergy or ETHC, as applicable, as having been prepared in
accordance with generally accepted accounting principles
consistently applied;
(ii) A favorable opinion of counsel for each
Borrower, acceptable to the Agent, substantially in the form
of Exhibit D-1 hereto and as to such other matters as any
Lender through the Agent may reasonably request;
(iii) A favorable opinion of Winthrop, Stimson,
Putnam & Roberts, counsel for the Agent, substantially in
the form of Exhibit E hereto; and
(iv) If requested by any Lender, a duly executed
and delivered Form U-1, in the form prescribed by Regulation
U issued by the Board of Governors of the Federal Reserve
System.
(e) The Agent shall have received the fees payable at
such time pursuant to the Fee Letter.
SECTION .16. Conditions Precedent to Each Contract
Borrowing. The obligation of each Lender to make a Contract
Advance on the occasion of each Contract Borrowing (including the
initial Contract Borrowing) shall be subject to the further
conditions precedent that on the date of such Contract Borrowing:
(i) The following statements shall be true (and
each of the giving of the applicable Notice of Contract
Borrowing or Notice of Conversion and the acceptance by the
applicable Borrower of any proceeds of a Contract Borrowing
shall constitute a representation and warranty by such
Borrower that on the date of such Contract Borrowing or
Conversion, as applicable, such statements are true):
(A) The representations and warranties
contained in Section 4.01 (excluding those contained
in subsections (e) and (f) thereof if such Contract
Borrowing does not increase the aggregate outstanding
principal amount of Contract Advances over the
aggregate outstanding principal amount of all Contract
Advances immediately prior to the making of such
Contract Borrowing) are correct on and as of the date
of such Contract Borrowing, before and after giving
effect to such Contract Borrowing and to the
application of the proceeds therefrom, as though made
on and as of such date; and
(B) No event has occurred and is
continuing, or would result from such Contract
Borrowing or from the application of the proceeds
therefrom, that constitutes a Prepayment Event or an
Event of Default or would constitute an Event of
Default or a Prepayment Event with notice or lapse of
time or both;
(ii) In the case of each Contract Advance to
Entergy (other than a Contract Advance all of the proceeds
of which are being used to repay all or any portion of an
Auction Borrowing of Entergy), the Agent shall have received
a copy, certified in a manner satisfactory to the Agent, of
the ETC Order applicable to the Person being acquired with
the proceeds of such Contract Advance and the other Advances
being made at such time; and
(iii) The Agent shall have received (A) in the
case of each Contract Advance to Entergy (other than a
Contract Advance all of the proceeds of which are being used
to repay all or any portion of an Auction Borrowing of
Entergy), a favorable opinion of counsel for Entergy,
acceptable to the Agent, substantially in the form of
Exhibit D-2 hereto and as to such other matters as any
Lender through the Agent may reasonably request, and (B)
such other approvals, opinions or documents with respect to
the truth of the statements set forth in clauses (i)(A) and
(i)(B) above as any Lender through the Agent may reasonably
request.
SECTION .17. Conditions Precedent to Each Auction
Borrowing. The obligation of each Lender that is to make an
Auction Advance as part of any Auction Borrowing (including the
initial Auction Borrowing) to make such Auction Advance is
subject to the conditions precedent that on the date of such
Auction Borrowing:
(i) The Agent shall have received the written
confirmatory Notice of Auction Borrowing with respect
thereto;
(ii) The Agent shall have received an Auction
Note, duly executed by the applicable Borrower, payable to
the order of such Lender for each of the Auction Advances to
be made by such Lender as part of such Auction Borrowing, in
a principal amount equal to the principal amount of the
Auction Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such Auction Advance in
accordance with Section 2.03;
(iii) The following statements shall be true (and
the giving of the applicable Notice of Auction Borrowing and
the acceptance by the applicable Borrower of the proceeds of
such Auction Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Auction
Borrowing such statements are true):
(A) The representations and warranties
contained in Section 4.01 are correct on and as of the
date of such Auction Borrowing, before and after giving
effect to such Auction Borrowing and to the application
of the proceeds therefrom, as though made on and as of
such date; and
(B) No event has occurred and is
continuing, or would result from such Auction Borrowing
or from the application of the proceeds therefrom, that
constitutes a Prepayment Event or an Event of Default
or that would constitute an Event of Default or a
Prepayment Event with notice or lapse of time or both;
(iv) In the case of each Auction Advance to
Entergy (other than an Auction Advance all of the proceeds
of which are being used to repay all or any portion of a
Contract Borrowing of Entergy or an Auction Borrowing of
Entergy), the Agent shall have received a copy, certified in
a manner satisfactory to the Agent, of the ETC Order
applicable to the Person being acquired with the proceeds of
such Auction Advance and the other Advances being made at
such time; and
(v) The Agent shall have received (A) in the case
of each Auction Advance to Entergy (other than an Auction
Borrowing of Entergy all of the proceeds of which are being
used to repay all or any portion of a Contract Borrowing of
Entergy or an Auction Borrowing of Entergy), a favorable
opinion of counsel for Entergy, acceptable to the Agent,
substantially in the form of Exhibit D-2 hereto and as to
such other matters as any Lender through the Agent may
reasonably request, and (B) such other approvals, opinions
or documents with respect to the truth of the statements set
forth in clauses (iii)(A) and (B) above as any Lender
through the Agent may reasonably request.
ARTICLE I.
REPRESENTATIONS AND WARRANTIES
SECTION I.1. Representations and Warranties of
Entergy. Entergy represents and warrants as follows:
(a) Each of the Borrowers 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 each of
the Borrowers of this Agreement and the Notes are within such
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) such
Borrower's charter or bylaws, (ii) law applicable to such
Borrower or its properties or (iii) any contractual or legal
restriction binding on or affecting such Borrower or its
properties.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by each of the Borrowers of this Agreement or the
Notes except such notice as may be required to be filed with the
SEC pursuant to Section 34(f) of PUHCA.
(d) The obligations of each Borrower under this
Agreement are, and the applicable Notes when delivered hereunder
will be, legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with their
respective terms, subject, however, to 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 Entergy
and its subsidiaries as of December 31, 1995 and for the year
ended on such date, as set forth in Entergy'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 Coopers & Lybrand, and the
consolidated financial statements of Entergy and its subsidiaries
as of June 30, 1996, and for the three-month period ended on such
date set forth in Entergy's Quarterly Report on Form 10-Q for the
fiscal quarter ended on such date, as filed with the SEC, and the
consolidated financial statements of ETHC and its subsidiaries as
of June 30, 1996 and for the three-month period ended on such
date, copies of each of which have been furnished to each Bank,
fairly present (subject, in the case of such statements dated
June 30, 1996, to year-end adjustments) the consolidated
financial condition of, respectively, Entergy and its
subsidiaries and ETHC and its subsidiaries as at such dates and
the consolidated results of the operations of, respectively,
Entergy and its subsidiaries and ETHC and its subsidiaries for
the periods ended on such dates, in accordance with generally
accepted accounting principles consistently applied. Except as
disclosed in Entergy's Quarterly Report on Form 10-Q for the
fiscal period ended June 30, 1996, since December 31, 1995, there
has been no material adverse change in the financial condition or
operations of Entergy.
(f) Except as disclosed in Entergy's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, and
Entergy's Quarterly Report on Form 10-Q for the period ended June
30, 1996, there is no pending or threatened action or proceeding
affecting Entergy 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 either Borrower or on its
ability to perform its obligations under this Agreement or any
Note, or that purports to affect the legality, validity, binding
effect or enforceability of this Agreement or any Note. There
has been no change in any matter disclosed in such filings that
could reasonably be expected to result in such a material adverse
effect.
(g) No event has occurred and is continuing that
constitutes a Prepayment Event or an Event of Default or that
would constitute an Event of Default or a Prepayment Event but
for the requirement that notice be given or time elapse or both.
(h) Neither Borrower is 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 either Borrower and its
subsidiaries subject to the restrictions of Section 5.02(a), (b)
or (c) 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) Neither Borrower is 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. As of the date hereof, Entergy is a
"holding company" as that term is defined in, and is registered
under, PUHCA.
(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
Entergy 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) Entergy has not incurred, and does not reasonably
expect to incur, any withdrawal liability under ERISA to any
Multiemployer Plan.
(m) ETHC, and each Person, if any, acquired with the
proceeds of Borrowings by Entergy, is (i) an "exempt
telecommunications company" within the meaning of section
34(a)(1) of PUHCA and has obtained an ETC Order to such effect,
which ETC Order is in full force and effect, and (ii) engaged
exclusively in the businesses contemplated by section 34(a)(1) of
PUHCA. Entergy is in compliance with section 34 of PUHCA.
(n) As of the date of any Borrowing, the total
principal amount of all Debt (after giving effect to such
Borrowing) of Entergy and its subsidiaries, determined on a
consolidated basis and without duplication of liability therefor,
on such date does not exceed 65% of Capitalization determined as
of the last day of the most recently ended month; provided,
however, that for purposes of this Section 4.01(n), "Debt" and
"Capitalization" shall not include (i) Junior Subordinated
Debentures and (ii) any Debt of any subsidiary of Entergy that is
Non-Recourse Debt.
ARTICLE II
COVENANTS OF THE BORROWERS
SECTION II.1. Affirmative Covenants. So long as any
Note or any amount payable by either Borrower hereunder shall
remain unpaid or any Lender shall have any Commitment hereunder,
each of the Borrowers will, unless the Majority Lenders shall
otherwise consent in writing:
(a) Keep Books; Corporate Existence; Maintenance of
Properties; Compliance with Laws; Insurance; Taxes.
(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(b), 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, payment before
the same become delinquent of 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, and subject to such retentions or deductibles,
as is usually carried by companies engaged in similar
businesses and owning similar properties, and furnish to the
Agent, within a reasonable time after written request
therefor, such information as to the insurance carried as
any Lender, through the Agent, may reasonably request; and
(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.
(b) Use of Proceeds. Use the proceeds of the
Borrowings only, in the case of Borrowings by Entergy, to finance
the acquisition of one or more Persons that are "exempt
telecommunications companies" within the meaning of section
34(a)(1) of PUHCA (except that Entergy may use the proceeds of
Contract Borrowings to repay its Auction Borrowings and use the
proceeds of Auction Borrowings to repay its Contract Borrowings
or its Auction Borrowings) and, in the case of Borrowings by
ETHC, for general corporate purposes consistent with such ETHC's
status as such an "exempt telecommunications company".
(c) ETC Status. Take all actions (including obtaining
any required determinations, consents and approvals) required to
maintain at all times the status of each of ETHC and its
respective subsidiaries as, and, in the case of ETHC, engage, and
cause each of its subsidiaries to engage, only in the businesses
permitted to be engaged in by, an "exempt telecommunications
company" within the meaning of section 34(a)(1) of PUHCA.
(d) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within
60 days after the end of each of, in the case of Entergy,
the first three quarters of each fiscal year of Entergy and,
in the case of ETHC, the four quarters of each fiscal year
of ETHC, (A) consolidated balance sheets of, respectively,
Entergy and its subsidiaries and ETHC and its subsidiaries
as of the end of such quarter and (B) consolidated
statements of income and retained earnings of, respectively,
Entergy and its subsidiaries and ETHC 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 the duly authorized officer of Entergy 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 Entergy, a
copy of the annual report for such year for Entergy and its
subsidiaries, containing consolidated financial statements
for such year certified by Coopers & Lybrand (or such other
nationally recognized public accounting firm as the Agent
may approve), and certified by a duly authorized officer of
Entergy 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 Entergy and within 120 days
after the end of the fiscal year of Entergy, a certificate
of the duly authorized officer of Entergy, stating that no
Prepayment Event or Event of Default has occurred and is
continuing or, if a Prepayment Event or Event of Default has
occurred and is continuing, a statement setting forth
details of such Prepayment Event or Event of Default, as the
case may be, and the action that Entergy has taken and
proposes to take with respect thereto;
(iv) as soon as possible and in any event within
five days after either Borrower has knowledge of the
occurrence of each Prepayment Event, Event of Default and
each event that, with the giving of notice or lapse of time
or both, would constitute an Event of Default, continuing on
the date of such statement, a statement of the duly
authorized officer of such Borrower setting forth details of
such Prepayment Event, Event of Default or event, as the
case may be, and the actions that either or both of the
Borrowers have taken and propose to take with respect
thereto;
(v) as soon as possible and in any event within
five days after the commencement of any litigation against,
or any arbitration, administrative, governmental or
regulatory proceeding involving, Entergy 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 either Borrower, notice
of such litigation, arbitration or proceeding describing in
reasonable detail the facts and circumstances concerning
such litigation, arbitration or proceeding and Entergy's or
such subsidiary's proposed actions in connection therewith;
(vi) promptly after the sending or filing
thereof, copies of all reports that Entergy sends to its
securities holders, and copies of all reports and
registration statements that Entergy files with the SEC or
any national securities exchange pursuant to the Securities
Act of 1933 or the Exchange Act, of all certificates (if
any) pursuant to Rule 24 that either Borrower files with the
SEC pursuant to PUHCA having relevancy to this Agreement,
and of all applications and other filings made to or with
the FCC or the SEC pursuant to Section 34 of PUHCA or
otherwise having relevancy to this Agreement;
(vii) as soon as possible and in any event (A)
within 30 days after Entergy 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
Entergy 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
Entergy describing such ERISA Termination Event and the
action, if any, that Entergy proposes to take with respect
thereto;
(viii) promptly and in any event within two
Business Days after receipt thereof by Entergy from the
PBGC, copies of each notice received by Entergy in respect
of the PBGC's intention to terminate any ERISA Plan or to
have a trustee appointed to administer any ERISA Plan;
(ix) promptly, if requested by the Agent, copies
of the then current 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 Entergy from a
Multiemployer Plan sponsor, a copy of each notice received
by Entergy 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 any
Borrower, any Significant Subsidiary or any subsidiary of
ETHC as any Lender through the Agent may from time to time
reasonably request.
SECTION II.2. Negative Covenants. So long as any Note
or any amount payable by either Borrower hereunder shall remain
unpaid or any Lender shall have any Commitment hereunder, Entergy
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
Entergy's Significant Subsidiaries or of New Orleans) or ETHC's
properties, 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 applicable 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 applicable Borrower; (v) purchase money mortgages
or other liens or purchase money security interests upon or in
any property acquired or held by Entergy or ETHC 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 for both Borrowers, 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 for both
Borrowers, shall not exceed $100,000,000 at any one time and no
such Lien on any of the properties or assets of ETHC shall secure
or provide for the payment of Debt of ETHC or Entergy and (ix)
Liens created for the sole purpose of extending, renewing or
replacing in whole or in part Debt secured by any Lien permitted
pursuant to the foregoing clauses (i) through (viii) 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 New Orleans unless the obligations
of the Borrowers to the Lenders hereunder are simultaneously and
ratably secured by such Lien pursuant to documentation
satisfactory to the Lenders.
(b) Mergers, Etc. Merge with or into or consolidate
with or into any other Person, or permit ETHC to do so, except
that either Borrower may merge with any other Person, provided
that, immediately after giving effect to any such merger, (i)
such Borrower is the surviving corporation or (A) the surviving
corporation shall be organized under the laws of one of the
states of the United States of America and shall assume such
Borrower's obligations hereunder in a manner acceptable to the
Majority Lenders, and (B) after giving effect to such merger, the
Senior Debt Ratings of the two Significant Subsidiaries (other
than SERI) having the highest Senior Debt Ratings 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) such Borrower shall not be liable with respect to any Debt
or allow its property to be subject to any Lien that would not be
permissible with respect to it or its property under this
Agreement on the date of such transaction.
(c) 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 New Orleans, or permit
any Significant Subsidiary or 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 Entergy or a Significant Subsidiary.
(d) Limitation on Debt. Permit the total principal
amount of all Debt of Entergy 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
Entergy; provided, however, that for purposes of this Section
5.02(d), "Debt" and "Capitalization" shall not include (i) Junior
Subordinated Debentures and (ii) any Debt of any subsidiary of
Entergy that is Non-Recourse Debt.
ARTICLE III.
EVENTS OF DEFAULT AND REMEDIES
SECTION III.1. Events of Default. Each of the
following events shall constitute an "Event of Default"
hereunder:
(a) Either of the Borrowers shall fail to pay any
principal of any Advance when the same becomes due and payable,
or shall fail to pay interest thereon or any other amount payable
under this Agreement or any of the Notes within three Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by either
Borrower or any of its officers herein or in connection with this
Agreement shall prove to have been incorrect or misleading in any
material respect when made; or
(c) Either of the Borrowers shall fail to perform or
observe (i) any term, covenant or agreement contained in Section
5.01(b) or (c) or in Section 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
such Borrower by the Agent or any Lender; or
(d) Either of the Borrowers shall fail to pay any
principal of or premium or interest on any Debt of such Borrower
that is outstanding in a principal amount, together with the
principal amount of all other Debt with respect to which such a
failure by either Borrower shall have occurred and be continuing,
in excess of $50,000,000 in the aggregate (but excluding Debt
evidenced by the Notes) when the same becomes due and payable
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or
(e) Any of the Borrowers, any Significant Subsidiary
or 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 any of the Borrowers, any Significant Subsidiary or 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 any of the Borrowers, any Significant
Subsidiary or 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 any of the
Borrowers 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 Entergy or any ERISA
Affiliate of Entergy 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 Entergy or any ERISA Affiliate of
Entergy is, shall have been or will be terminated or the subject
of termination proceedings under ERISA, or (iii) Entergy or any
ERISA Affiliate of Entergy 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 Entergy or any ERISA Affiliate of
Entergy 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); or
(h) Entergy shall at any time fail to own and control
100% of the outstanding capital stock of, and other equity
interests in, ETHC.
SECTION III.2. Remedies. If any Prepayment Event or
Event of Default shall occur and be continuing, then, and in any
such event, the Agent shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrowers, do
either or both of the following: (i) declare the obligation of
each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) declare the Notes, all
interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes,
all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly
waived by the Borrowers; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to
any of the Borrowers, any Significant Subsidiary or New Orleans
under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B)
the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
ARTICLE IV.
THE AGENT
SECTION IV.1. Authorization and Action. Each Lender
hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall
not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by either of the Borrowers
pursuant to the terms of this Agreement.
SECTION IV.2. Agent's Reliance, Etc. Neither the
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 Agent: (i) may
treat the payee of any Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by
the Lender that is the payee of such Note, as assignor, and any
assignee pursuant to Section 9.07; (ii) may consult with legal
counsel (including counsel for either of the Borrowers),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of either of the
Borrowers or to inspect the property (including the books and
records) of either of the Borrowers; (v) shall not be responsible
to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION IV.3. BNY and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it,
BNY 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 Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include BNY in its individual
capacity. BNY 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, either of the Borrowers, any
of their respective subsidiaries and any Person who may do
business with or own securities of either of the Borrowers or any
such subsidiary, all as if BNY were not the Agent and without any
duty to account therefor to the Lenders.
SECTION IV.4. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the 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 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 IV.5. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the
Borrowers), ratably according to the respective principal amounts
of the Contract Notes then held by each of them (or if no
Contract Notes are at the time outstanding or if any Contract
Notes are held by Persons that are not Lenders, ratably according
to the respective amounts of their Commitments), from and against
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by
the 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 Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the 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 either of the Borrowers
but for which the Agent is not reimbursed by the Borrowers.
SECTION IV.6. Successor Agent. The Agent may resign
at any time by giving written notice thereof to the Lenders and
Entergy 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
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 Entergy (with such approval not to be
unreasonably withheld or delayed). If no successor Agent shall
have been so appointed by the Majority Lenders and approved by
Entergy, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor
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 Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as 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 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 Event of Default, shall have occurred and be continuing,
then no successor Agent shall be appointed under this Section
7.06 without the prior written consent of Entergy, which consent
shall not be unreasonably withheld or delayed.
ARTICLE V.
GUARANTY
SECTION V.1. The Guarantor irrevocably and
unconditionally guarantees to the Creditors the full and prompt
payment, no later than the third Business Day after the giving of
notice by the Agent to the Guarantor of an Event of Default, of
all amounts payable (whether at the stated maturity, by
acceleration or otherwise) hereunder by ETHC (all such amounts
being herein collectively called the "Guaranteed Obligations").
The Guarantor understands, agrees and confirms that the Creditors
may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against the Guarantor without proceeding against
ETHC, against any security for the Guaranteed Obligations, or
under any other guaranty covering all or a portion of the
Guaranteed Obligations. All payments by the Guarantor hereunder
shall be made as provided herein.
SECTION V.2. (a) The liability of the Guarantor
hereunder is exclusive and independent of any security (if any)
for or other guaranty (if any) of the Guaranteed Obligations, and
the liability of the Guarantor hereunder shall not be affected or
impaired by (i) any direction as to application of payment by
ETHC or by any other party, (ii) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of
any other party as to the Guaranteed Obligations, (iii) any
payment on or in reduction of any such other guaranty or
undertaking, or (iv) any payment made to any Creditor on the
Guaranteed Obligations which any Creditor repays to ETHC pursuant
to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding with respect to
ETHC, and the Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such
proceeding.
(b) If claim is ever made upon any Creditor for
repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and
any of the aforesaid payees repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of
its property or (ii) any settlement or compromise of any such
claim effected by such payee with any such claimant (including
the Guarantor), then and in such event the Guarantor agrees that
any such judgment, decree, order, settlement or compromise shall
be binding upon the Guarantor, notwithstanding any revocation
hereof or the cancellation of any instrument evidencing any
liability of the Company, and the Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid
or recovered to the same extent as if such amount had never
originally been received by any such payee.
SECTION V.3. The obligations of the Guarantor
hereunder are independent of the obligations of any other
guarantor or ETHC, and a separate action or actions may be
brought and prosecuted against the Guarantor whether or not an
action is brought against any other guarantor or ETHC and whether
or not any other guarantor or ETHC be joined in any such action
or actions. The Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof.
Any payment by ETHC or other circumstance which operates to toll
any statute of limitations as to ETHC shall operate to toll the
statute of limitations as to the Guarantor.
SECTION V.4. Except as otherwise provided in the first
sentence of Section 8.01, the Guarantor hereby waives (to the
fullest extent permitted by applicable law) notice of acceptance
hereof and notice of any liability to which this guaranty may
apply, and waives promptness, diligence, presentment, demand of
payment, protest, notice of dishonor or nonpayment of any such
liabilities, suit or taking of other action by the Agent or any
other Creditor against, and any other notice to, any party liable
thereon.
SECTION V.5. Any Creditor may at any time and from
time to time without the consent of, or notice to, the Guarantor,
without incurring responsibility to the Guarantor, without
impairing or releasing the obligations of the Guarantor
hereunder, upon or without any terms or conditions and in whole
or in part:
(a) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, accelerate
or alter, any of the Guaranteed Obligations, any security
therefor, or any liability incurred directly or indirectly in
respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or
altered;
(b) sell, exchange, release, surrender, realize upon
or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights
against the ETHC and the Guarantor or others or otherwise act or
refrain from acting;
(d) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all
or any part thereof to the payment of any liability (whether due
or not) of ETHC to creditors of ETHC;
(e) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of ETHC to the Creditors
regardless of what liabilities of ETHC remain unpaid;
(f) consent to, or waive any breach of, any act,
omission or default under this Agreement or any of the
instruments or agreements referred to herein, or otherwise amend,
modify or supplement this Agreement or any of such other
instruments or agreements; and/or
(g) act or fail to act in any manner referred to in
this Guaranty which may deprive the Guarantor of its right to
subrogation against ETHC.
SECTION V.6. No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations
or of the obligations of ETHC under this Agreement or of any
security therefor shall affect, impair or be a defense to this
guaranty, and this guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a
legal or equitable discharge of a surety or guarantor except
payment in full of the Guaranteed Obligations.
SECTION V.7. This guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms
hereof shall be conclusively presumed to have been created in
reliance hereon. No failure or delay on the part of any Creditor
in exercising any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any
rights or remedies which any Creditor would otherwise have. No
notice to or demand on the Guarantor in any case shall entitle
the Guarantor to any other further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any
Creditor to any other or further action in any circumstances
without notice or demand. It is not necessary for any Creditor
to inquire into the capacity or powers of the Guarantor or the
officers, directors, partners or agents acting or purporting to
act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
SECTION V.8. (a) The Guarantor waives any right
(except as shall be required by applicable statute or law and
cannot be waived) to require the Creditors to: (i) proceed
against ETHC, any other guarantor or any other party; (ii)
proceed against or exhaust any security held from ETHC, any other
guarantor or any other party; or (iii) pursue any other remedy in
the Creditors' power whatsoever. The Guarantor waives (to the
fullest extent permitted by applicable law) any defense based on
or arising out of any defense of ETHC, any other guarantor or any
other party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense based on
or arising out of the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of ETHC other than payment in
full of the Guaranteed Obligations. The Creditors may, at their
election, foreclose on any security held by the Agent or the
other Creditors by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Creditors may
have against the Guarantor or any other party, or any security,
without affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Guaranteed
Obligations have been paid in full. The Guarantor waives any
defense arising out of any such election by the Creditors, even
though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of the
Guarantor against ETHC or any other party or any security; and
(b) Except as otherwise provided in the first sentence
of Section 8.01, the Guarantor waives (to the fullest extent
permitted by applicable law) all presentments, demands for
performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this guaranty, and notices of
the existence, creation or incurring of new or additional
indebtedness. The Guarantor assumes all responsibility for being
and keeping itself informed of ETHC's financial condition and
assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope
and extent of the risks which the Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty to
advise the Guarantor of information known to them regarding such
circumstances or risks.
ARTICLE VI.
MISCELLANEOUS
SECTION VI.1. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Contract Notes, nor
consent to any departure by either of the Borrowers therefrom,
shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders and, in the case of
any such amendment, the applicable Borrower, 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 a
Borrower or an Affiliate of a 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 or subject
the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Contract Notes or any fees or
other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the Contract Notes
or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Contract Notes, or the percentage or
number of Lenders that shall be required for the Lenders or any
of them to take any action hereunder, (f) release the Guarantor
from any of its obligations under Article VIII hereof or (g)
amend this Section 9.01; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION VI.2. 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 either of the Borrowers, c/o Entergy at its
address at 639 Loyola Avenue, New Orleans, LA 70113, Attention:
Treasurer, telecopy no. 504-576-4455; 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 Agent, at its address at One Wall
Street, New York, New York 10286, Attention: Dennis M. Pidherny,
telecopy no. 212-635-7923 with a copy to it at such address,
Attention: Agency Function Administration, telecopy no. 212-635-
6365; 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 Agent pursuant to Article II or VII shall not be effective
until received by the Agent. Except as otherwise provided in
Section 5.01(d), notices and other communications given by either
of the Borrowers to the Agent shall be deemed given to the
Lenders.
SECTION VI.3. No Waiver; Remedies. No failure on the
part of any Lender or the Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION VI.4. Costs and Expenses; Indemnification.
(a) Entergy agrees to pay on demand all costs and expenses
incurred by the Agent in connection with the preparation,
execution, delivery, syndication, administration, modification
and amendment of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under
this Agreement. Any invoices to Entergy with respect to the
aforementioned expenses shall describe such costs and expenses in
reasonable detail. Entergy 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 Agent and the Lenders in connection
with the enforcement (whether through negotiations, legal
proceedings or otherwise) of, and the protection of the rights of
the Lenders under, this Agreement, the Notes and the other
documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection
with the enforcement of rights under this Section 9.04(a).
(b) If any payment of principal of, or Conversion of,
any Adjusted CD Rate Advance or Eurodollar Rate Advance is made
other than on the last day of the Interest Period for such
Contract Advance, as a result of a payment or Conversion pursuant
to Section 2.09(d), 2.10 or 2.13, acceleration of the maturity of
the Notes pursuant to Section 6.02, assignment to another Lender
upon demand of Entergy pursuant to Section 9.07(h) or (i) or for
any other reason, the applicable Borrower shall, upon demand by
any Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or
expenses that 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
such Borrower that it has made reasonable efforts to mitigate
such loss), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender
to fund or maintain such Contract Advance. Any Lender making a
demand pursuant to this Section 9.04(b) shall provide the
applicable 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.
(c) Entergy hereby agrees to indemnify and hold each
Lender, the 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 attorneys' fees and expenses,
whether or not such Indemnified Person is named as a party to any
proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) that any of them may incur or
which may be claimed against any of them by any person or entity
by reason of or in connection with the execution, delivery or
performance of this Agreement, the Notes or any transaction
contemplated thereby, or the use by either of the Borrowers or
any of their respective 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. Entergy's obligations under this Section
9.04(c) shall survive the repayment of all amounts owing to the
Lenders and the Agent under this Agreement and the Notes and the
termination of the Commitments. If and to the extent that the
obligations of Entergy under this Section 9.04(c) are
unenforceable for any reason, Entergy agrees to make the maximum
contribution to the payment and satisfaction thereof which is
permissible under applicable law.
SECTION VI.5. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default or
Prepayment Event and (ii) the making of the request or the
granting of the consent specified by Section 6.02 to authorize
the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender to or for
the credit or the account of either of the Borrowers against any
and all of the obligations of such Borrower now or hereafter
existing under this Agreement and any Note held by such Lender,
whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the applicable
Borrower after any such set-off and application made by such
Lender; provided, however, 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 9.05 are in addition
to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender may have.
SECTION VI.6. Binding Effect. This Agreement shall
become effective upon execution thereof by Entergy and the Agent
and upon the receipt by the Agent of notification from each Bank
that such Bank has executed this Agreement; and thereafter the
Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Agent and each Lender and their respective
successors and assigns, except that neither of the Borrowers
shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION VI.7. Assignments and Participations. (a)
Each Lender may assign to one or more banks or other entities all
or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment, the Contract Advances owing to it and the Contract
Note or Notes held by it); provided, however, that (i) Entergy
and the Agent shall have consented to such assignment (such
consent not to be unreasonably withheld or delayed) by signing
the Assignment and Acceptance referred to in clause (iv) below;
(ii) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this
Agreement (other than any Auction Advances or Auction Notes);
(iii) the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 and shall
be an integral multiple of $1,000,000 (or shall be the total
amount of the assigning Lender's Commitment); and (iv) the
parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register (as
hereinafter defined), an Assignment and Acceptance, together with
any Contract Note or Notes subject to such assignment and a
processing and recordation fee of $2,500 (plus an amount equal to
out-of-pocket legal expenses of the Agent, estimated by the Agent
and advised to such parties). Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto). Notwithstanding anything to the
contrary contained in this Agreement, any Lender at any time may
assign all or any portion of its rights and obligations under
this Agreement to any Affiliate of such Lender.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their
respective 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 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 Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are
delegated to the 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 the terms
of this Agreement all of the obligations which by the terms
hereof are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Contract Advances
owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrowers, the 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 any
Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, together with
any Contract Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the Borrowers. Within five Business Days after its receipt of
such notice, the applicable Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered
Contract Note or Notes a new Contract Note to the order of such
assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new Contract Note
to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Contract Note or
Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Contract Note or
Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or
other entities any Auction Note or Notes held by it, without the
consent of either of the Borrowers.
(f) Each Lender may sell participations to one or more
banks, financial institutions or other entities in or to all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its
Commitment to the Borrowers hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii)
such Lender shall remain the holder of any such Note for all
purposes of this Agreement, and (iv) the Borrowers, the Agent and
the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and
obligations under this Agreement.
(g) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 9.07, disclose to the assignee or participant or
proposed assignee or participant any information relating to the
Borrowers furnished to such Lender by or on behalf of the
Borrowers; 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 Borrowers received by it from such
Lender.
(h) If any Lender shall fail to consent to the
extension of the Termination Date within 30 days of receipt by
such Lender of notice of any request pursuant to Section 2.17,
then upon termination of such 30-day period, Entergy may demand
that such Lender assign in accordance with this Section 9.07 to
one or more assignees designated by Entergy and acceptable to the
Majority Lenders (provided that, for purposes of this
determination by the Majority Lenders, the non-consenting Lender
shall not be included in the Lenders holding Contract Advances or
having Commitments) all (but not less than all) of such Lender's
Commitment and the Contract Advances owing to it within the next
15 days. If any such assignee designated by Entergy shall fail to
consummate such assignment on terms acceptable to such Lender, or
if Entergy shall fail to designate any such assignee for all of
such Lender's Commitment or Advances, then such Lender may assign
such Commitment and Advances to any other assignee acceptable to
the Majority Lenders (provided that, for purposes of this
determination by the Majority Lenders, the non-consenting Lender
shall not be included in the Lenders holding Contract Advances or
having Commitments) in accordance with this Section 9.07 during
such 15-day period; it being understood for purposes of this
Section 9.07(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 assignee
designated by Entergy, if such assignee (i) shall agree to such
assignment in substantially the form of Exhibit C hereto and (ii)
shall offer compensation to such Lender in an amount equal to the
sum of the principal amount of all Contract Advances outstanding
to such Lender plus all interest accrued thereon to the date of
such payment plus all other amounts payable by the Borrowers to
such Lender hereunder (whether or not then due) as of the date of
such payment accrued in favor of such Lender hereunder.
(i) If any Lender shall make any demand for payment
under Section 2.12 or 2.15, or if any Lender shall be the subject
of any notification or assertion of illegality under Section
2.13, then within 30 days after any such demand (if, but only if,
such demanded payment has been made by the applicable Borrower)
or notification or assertion, Entergy may, with the approval of
the 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 have occurred and then be
continuing, demand that such Lender assign in accordance with
this Section 9.07 to one or more assignees designated by Entergy
and acceptable to the Agent all (but not less than all) of such
Lender's Commitment and the Contract Advances owing to it within
the period ending on the later to occur of such 30th day and the
last day of the longest of the then current Interest Periods for
such Advances. If any such assignee designated by Entergy and
approved by the Agent shall fail to consummate such assignment on
terms acceptable to such Lender, or if Entergy shall fail to
designate any such assignees acceptable to the Agent for all or
part of such Lender's Commitment or Advances, then such demand by
Entergy shall become ineffective; it being understood for
purposes of this subsection (i) that such assignment shall be
conclusively deemed to be on terms acceptable to such Lender, and
such Lender shall be compelled to consummate such assignment to
an Eligible Assignee designated by Entergy, 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 Borrowers to such Lender hereunder and under
the Notes made by the Borrowers to such Lender, whether for
principal, interest, fees, costs or expenses (other than the
demanded payment referred to above and payable by the applicable
Borrower as a condition to Entergy's right to demand such
assignment), or otherwise. In addition, in the event that Entergy
shall be entitled to demand the replacement of any Lender
pursuant to this subsection (i), Entergy may, in the case of any
such Lender, with the approval of the 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 have occurred and then be continuing, terminate all (but
not less than all) such Lender's Commitment and prepay (or cause
the applicable Borrower to 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
Borrowers to such Lender hereunder and under the Note made by the
applicable Borrower to such Lender, at any time from and after
such later occurring day in accordance with Sections 2.05 and
2.11 hereof (but without the requirement stated therein for
ratable treatment of the other Lenders), if and only if, after
giving effect to such termination and prepayment, the sum of the
aggregate principal amount of the Advances of all Lenders then
outstanding does not exceed the then remaining Commitments of the
Lenders. Notwithstanding anything set forth above in this
subsection (i) to the contrary, Entergy shall not be entitled to
compel the assignment by any Lender demanding payment under
Section 2.12(a) of its Commitment and Advances or terminate and
prepay the Commitment and Advances of such Lender if, prior to or
promptly following any such demand by Entergy, such Lender shall
have changed or shall change, as the case may be, its Applicable
Lending Office for its Eurodollar Rate Advances so as to
eliminate the further incurrence of such increased cost. In
furtherance of the foregoing, any such Lender demanding payment
or giving notice as provided above agrees to use reasonable
efforts to so change its Applicable Lending Office, if to do so
would not result in the incurrence by such Lender of additional
costs or expenses which it deems material or, in the sole
judgment of such Lender, be inadvisable for regulatory,
competitive or internal management reasons.
(j) Anything in this Section 9.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION VI.8. Governing Law. THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
SECTION VI.9. Consent to Jurisdiction; Waiver of Jury
Trial. (a) To the fullest extent permitted by law, each of the
Borrowers hereby irrevocably (i) submits to the non-exclusive
jurisdiction of any New York State or Federal court sitting in
New York City and any appellate court from any thereof in any
action or proceeding arising out of or relating to this agreement
or any other Loan Document, and (ii) agrees that all claims in
respect of such action or proceeding may be heard and determined
in such New York State court or in such Federal court. Each of
the Borrowers hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding. Each of the Borrowers
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 such Borrower at its address specified in Section
9.02. Each of the Borrowers 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) EACH OF THE BORROWERS, THE AGENT AND THE LENDERS
HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY NOTE, OR ANY OTHER INSTRUMENT OR DOCUMENT
DELIVERED HEREUNDER OR THEREUNDER.
SECTION .10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ENTERGY CORPORATION
By_________________________________
Name:
Title:
ENTERGY TECHNOLOGY HOLDING
COMPANY
By__________________________________
Name:
Title:
THE BANK OF NEW YORK, as Agent
By__________________________________
Name:
Title:
Commitment BANKS
$100,000,000 THE BANK OF NEW YORK
By___________________________
Name:
Title:
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office CD Lending Office
The Bank of One Wall Street One Wall Street One Wall Street
New York New York, New York 10286 New York, New York 10286 New York, New York 10286
Attn: Dennis M. Pidherny/ Attn: Dennis M. Pidherny/ Attn: Dennis M. Pidherny/
Jo-Ann Evans Jo-Ann Evans Jo-Ann Evans
Telephone: 212-635-7547 Telephone: 212-635-7547 Telephone: 212-635-7547
Fax: 212-635-7923 Fax: 212-635-7923 Fax: 212-635-7923
SCHEDULE 2.05(b)
FORM OF INCREASE NOTICE
The Bank of New York, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
One Wall Street
New York, New York 10286
[Date]
Ladies and Gentlemen:
The undersigned, ENTERGY CORPORATION, refers to the Credit
Agreement, dated as of ______, 1996 (the "Credit Agreement"), the
terms defined therein being used herein as therein defined, among
the undersigned, Entergy Technology Holding Company, certain
Lenders parties thereto and The Bank of New York, as Agent for
said Lenders, and hereby gives you notice pursuant to Section
2.05(b) of the Credit Agreement that the undersigned hereby
requests that the aggregate amount of the Commitments be
increased, and in that connection sets forth below the
information relating to such increase of the aggregate amount of
the Commitments (the "Requested Increase") as required by Section
2.05(b) of the Credit Agreement:
(i) The Business Day of the effectiveness of the
Requested Increase is ______, 19___ (the "Increase
Date").
(ii) The aggregate amount of the Requested Increase is
$________________.
(iii)The aggregate amount of the Commitments after
giving effect to the Requested Increase will be
$________________.
[(iv)Each of the following financial institutions is
proposed to become a Lender on the Increase Date with a
Commitment in the amount set forth opposite its name:
[set forth information]]
[(iv)Each of the following existing Lenders is
requested to increase its Commitment on the Increase
Date to the amount set forth opposite its name:
[set forth information]]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
Increase Date:
(A) the representations and warranties contained in
Section 4.01 of the Credit Agreement are correct, before and
after giving effect to the Requested Increase, as though made on
and as of such date; and
(B) no event has occurred and is continuing, or would
result from such Requested Increase, 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-1
FORM OF CONTRACT NOTE
U.S. $ _______________ Dated: ____________, 19___
FOR VALUE RECEIVED, the undersigned, [ENTERGY CORPORATION]
[ENTERGY TECHNOLOGY HOLDING COMPANY], a Delaware corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Lender") for the account of its
Applicable Lending Office (such term and other capitalized terms
herein being used as defined in the Credit Agreement referred to
below) the principal sum of U.S. $___________ or, if less, the
aggregate principal amount of the Contract Advances made by the
Lender to the Borrower pursuant to the Credit Agreement
outstanding on the Termination Date, payable on the Termination
Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Contract Advance from the date of such Contract
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to The Bank of New York, as Agent,
at One Wall Street, New York, New York 10286, in same day funds.
Each Contract Advance made by the Lender to the Borrower pursuant
to the Credit Agreement, and all payments made on account of
principal thereof, may be recorded by the Lender and endorsed on
the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Contract Notes referred to
in, and is entitled to the benefits of, the Credit Agreement,
dated as of __________, 1996 (the "Credit Agreement"), among the
Borrower, [Entergy Corporation] [Entergy Technology Holding
Company], the Lender and certain other banks parties thereto, and
The Bank of New York, as Agent for the Lender and such other
banks. The Credit Agreement, among other things, (i) provides for
the making of Contract Advances by the Lender to the Borrower
from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such
Contract Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY]
By_______________________________
Name:
Title:
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Date Amount of Interest Period Principal Amount of Notation
Advance (if any) of Paid or Unpaid Made By
Advance Prepaid Principal
Balance
EXHIBIT A-2
FORM OF AUCTION NOTE
U.S. $ _______________ Dated: __________ , 19___
FOR VALUE RECEIVED, the undersigned, [ENTERGY CORPORATION]
[ENTERGY TECHNOLOGY HOLDING COMPANY], a Delaware corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
_______________(the ""Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to
below), on __________, 19__, the principal amount of __________
Dollars ($ __________).
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is
paid in full, at the interest rate and payable on the interest
payment date or dates provided below:
[Interest Rate: ______% per annum [or]
[Description of Interest Rate Basis and
Margin] (calculated on the basis of a year of
_____ days for the actual number of days
elapsed).
Interest Payment Date or Dates:
Prepayment terms:
Both principal and interest are payable in lawful money of
the United States of America to ____________ or the account of
the Lender at the office of The Bank of New York, as Agent, at
One Wall Street, New York, New York 10286, in same day funds,
free and clear of and without any deduction, with respect to the
payee named above, for any and all present and future taxes,
deductions, charges or withholdings, and all liabilities with
respect thereto to the extent and in the manner provided in the
Credit Agreement.
This Promissory Note is one of the Auction Notes referred to
in, and is entitled to the benefits of, the Credit Agreement,
dated as of ___________ ____, 1996 (the "Credit Agreement"),
among the Borrower, [Entergy Corporation] [Entergy Technology
Holding Company], the Lender and certain other banks parties
thereto, and The Bank of New York, as Agent for the Lender and
such other banks. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY]
By_______________________
Name:
Title:
EXHIBIT B-1
FORM OF NOTICE OF CONTRACT BORROWING
The Bank of New York, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
One Wall Street
New York, New York 10286
[Date]
Ladies and Gentlemen:
The undersigned, [ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY] refers to the Credit Agreement, dated as of
______, 1996 (the "Credit Agreement"), the terms defined therein
being used herein as therein defined, among the undersigned,
[Entergy Corporation] [Entergy Technology Holding Company],
certain Lenders parties thereto and The Bank of New York, as
Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Contract Borrowing under the Credit
Agreement, and in that connection sets forth below the
information relating to such Contract Borrowing (the "Proposed
Contract Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Contract
Borrowing is ______, 19___.
(ii) The Type of Contract Advances to be made in
connection with the Proposed Contract Borrowing is
[Adjusted CD Rate Advances] [Base Rate Advances]
[Eurodollar Rate Advances].
(iii)The aggregate amount of the Proposed Contract
Borrowing is $________________.
(iv) The Interest Period for each Contract Advance made
as part of the Proposed Contract Borrowing is [
___days] [____ month[s]].
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Contract Borrowing:
(A) the representations and warranties contained in
Section 4.01 of the Credit Agreement are correct, before and
after giving effect to the Proposed Contract Borrowing and to the
application of the proceeds therefrom, as though made on and as
of such date; and
(B) no event has occurred and is continuing, or would
result from such Proposed Contract Borrowing or from the
application of the proceeds therefrom, that constitutes a
Prepayment Event or an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or
time elapse or both.
[Attached hereto is a copy of the ETC Order applicable to the
Person being acquired with the proceeds of the Contract Borrowing
requested hereby. Also attached hereto is the opinion of FCC
counsel for the undersigned, substantially in the form of Exhibit
D-2 to the Credit Agreement.]<FN1>
Very truly yours,
[ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY]
By_________________________________
Name:
Title:
__________________
<FN1> Include in notices of Contract Borrowings by Entergy Corporation,
unless all of the proceeds thereof are being used to repay all or
any portion of such Borrower's outstanding Auction Borrowings.
EXHIBIT B-2
FORM OF NOTICE OF AUCTION BORROWING
The Bank of New York, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
One Wall Street
New York, New York 10286
[Date]
Ladies and Gentlemen:
The undersigned, [ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY], refers to the Credit Agreement, dated
__________ , 1996 (the "Credit Agreement"), the terms defined
therein being used herein as therein defined, among the
undersigned, [Entergy Corporation] [Entergy Technology Holding
Company], certain Lenders parties thereto and The Bank of New
York, as Agent for said Lenders, and hereby gives you notice
pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests an Auction Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which
such Auction Borrowing (the "Proposed Auction Borrowing") is
requested to be made:
(A) Date of Auction Borrowing ______________
(B) Amount of Auction Borrowing ______________
(C) Maturity Date ______________
(D) Interest Rate Basis and Margin<FN2> ______________
(E) Interest Computation Basis ______________
(F) Interest Payment Dates(s) ______________
(G) Prepayment ______________
(H) __________________________
(I) __________________________
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Auction Borrowing:
(a) the representations and warranties contained in
Section 4.01 of the Credit Agreement are correct, before and
after giving effect to the Proposed Auction Borrowing and to
the application of the proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is continuing, or would
result from the Proposed Auction Borrowing or from the
application of the proceeds therefrom, that constitutes a
Prepayment Event or an Event of Default or would constitute
an Event of Default but for the requirement that notice be
given or time elapse or both; and
(c) the aggregate amount of the Proposed Auction
Borrowing and all other Borrowings to be made on the same
day under the Credit Agreement is within the aggregate
amount of the unused Commitments of the Lenders.
[Attached hereto is a copy of the ETC Order applicable to the
Person being acquired with the proceeds of the Auction Borrowing
requested hereby. Also attached hereto is the opinion of FCC
counsel for the undersigned, substantially in the form of Exhibit
D-2 to the Credit Agreement.]<FN3>
The undersigned hereby confirms that the Proposed Auction
Borrowing is to be made available to it in accordance with
Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
[ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY]
By_________________________________
Name:
Title:
__________________
<FN2> Include if applicable.
<FN3> Include in notices of Auction Borrowings by Entergy Corporation,
unless all of the proceeds thereof are being used to repay all or
any portion of such Borrower's outstanding Contract Borrowings or
Auction Borrowings.
EXHIBIT B-3
FORM OF NOTICE OF CONVERSION
The Bank of New York, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
One Wall Street
New York, New York 10286
[Date]
Ladies and Gentlemen:
The undersigned, [ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY], refers to the Credit Agreement, dated as of
__________, 1996 (the "Credit Agreement"), the terms defined
therein being used herein as therein defined, among the
undersigned, [Entergy Corporation] [Entergy Technology Holding
Company], certain Lenders party thereto and The Bank of New York,
as Agent for said Lenders, and hereby gives you notice
irrevocably, pursuant to Section 2.10 of the Credit Agreement,
that the undersigned hereby requests a Conversion under the
Credit Agreement, and in that connection sets forth below the
information relating to such Conversion (the "Proposed
Conversion") as required by Section 2.10 of the Credit Agreement:
(i) The Business Day of the Proposed Conversion is
__________, ____.
(ii) The Type of Advances comprising the Proposed
Conversion is [Adjusted CD Rate Advances] [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 [Adjusted CD Rate Advances]
[Base Rate Advances] [Eurodollar Rate Advances].
(v) The Interest Period for each Advance made as part
of the Proposed Conversion is [___ days] [_____ month(s)].<FN4>
The undersigned hereby represents and warrants that the
following statements are true on the date hereof, and will be
true on the date of the Proposed Conversion:
(A) The Borrower's request for the Proposed Conversion
is made in compliance with Section 2.10 of the Credit
Agreement; and
(B) The statements contained in Section 3.02(i) of the
Credit Agreement are true.
Very truly yours,
[ENTERGY CORPORATION] [ENTERGY TECHNOLOGY
HOLDING COMPANY]
By_________________________________
Title:
______________________
<FN4> Delete for Base Rate Advances.
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________, 19___
Reference is made to the Credit Agreement, dated as of
________________ ____, 1996 (as amended, modified or supplemented
from time to time, the "Credit Agreement"), among Entergy
Corporation, a Delaware corporation, Entergy Technology Holding
Company, a Delaware corporation (collectively with Entergy
Corporation, the "Borrowers"), the Lenders (as defined in the
Credit Agreement) and The Bank of New York, as Agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
__________ (the "Assignor") and ________(the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee
without recourse, and the Assignee hereby purchases and assumes
from the Assignor, that interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Auction Advances and Auction
Notes) which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the
Credit Agreement (other than in respect of Auction Advances and
Auction Notes), including, without limitation, such interest in
the Assignor's Commitment, the Contract Advances owing to the
Assignor, and the Contract Note[s] held by the Assignor. After
giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Contract Advances owing to the
Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) 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; (ii) 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; (iii)
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their
respective obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv)
attaches the Contract Note[s] referred to in paragraph 1 above
and requests that the Agent exchange such Contract Note[s] for a
new Contract Note payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant
hereto or new Contract Notes payable to the order of the Assignee
in an amount equal to the Commitment assumed by the Assignee
pursuant hereto and the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto. Except as
specified in this Section 2, the assignment hereunder shall be
without recourse to the Assignor.
3. The Assignee (i) 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; (ii) agrees that it will,
independently and without reliance upon the 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; (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably
incidental thereto; (iv) 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] (v) specifies as its CD Lending Office,
Domestic Lending Office (and address for notices) and Eurodollar
Lending Office the offices set forth beneath its name on the
signature pages hereof [and (vi) attaches the forms prescribed by
the Internal Revenue Service of the United States certifying that
it is exempt from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit
Agreement and the Notes].
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective
date of this Assignment and Acceptance shall be the date of
acceptance thereof by the 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 Agent as provided in Section 8.07(a) of the Credit Agreement.
5. Upon such acceptance and recording by the Agent, as of
the Effective Date, (i) 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 (ii) 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.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under
the Credit Agreement and the Contract Notes in respect of the
interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit
Agreement and the Contract Notes for periods prior to the
Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be signed in any
number of counterparts, each of which shall be deemed an
original, with the same effect as if the signatures thereto and
hereto were up on the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1 hereto.
[NAME OF ASSIGNOR]
By_______________________________
Name:
Title:
[NAME OF ASSIGNEE]
By______________________________
Name:
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ___ day
of _________ , 19 __
THE BANK OF NEW YORK, as Agent
By __________________
Name:
Title:
Schedule 1
to Assignment and Acceptance
Dated __________, 19___
Section 1.
Percentage Interest: ______
%
Section 2.
Assignee's Commitment: $_____
Aggregate Outstanding Principal
Amount of Contract Advances $_____
owing to the Assignee:
A Contract Note payable to the order of the Assignee
Dated: _______, 19___ $_____
Principal amount:
[A Contract Note payable to the order of the Assignor
Dated: _______, 19___ $_____]
Principal amount:
Section 3.
Effective Date<FN5>: ________, 19___
___________________
<FN5> This date should be no earlier than the date of acceptance by
the Agent.
EXHIBIT D-2
FORM OF OPINION OF
COUNSEL FOR ENTERGY
[Letterhead of Laurence M. Hamric, Entergy Corporation]
[Set forth below are the substantive opinions to be provided]
Based on the foregoing, and subject to the
qualifications hereinafter expressed, it is my opinion that:
1. The Acquiree is an "exempt telecommunications
company" within the meaning of section 34(a)(1) of the Public
Utility Holding Company Act of 1935, as amended ("PUHCA").
2. The Acquiree has obtained an ETC Order with respect
to its status as an "exempt telecommunications company" within
the meaning of section 34(a)(i) of PUHCA, and such ETC Order is
in full force and effect.
3. No authorization or approval or other action by, or
notice, filing or registration with, the Securities and Exchange
Commission (the "SEC"), the Federal Communications Commission or
any other governmental or regulatory authority, other than the
ETC Order obtained with respect to the Acquiree and such notice
as may be required to be filed with the SEC pursuant to section
34(f) of PUHCA, is or will be required to be obtained or made by
the Acquiree, Entergy or any of its subsidiaries in connection
with the Borrowings the proceeds of which will be used to effect
the acquisition by Entergy of the Acquiree.
EXHIBIT E
FORM OF OPINION OF
SPECIAL NEW YORK COUNSEL
FOR THE AGENT
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_______ __, 1996
To the Agent and each Lender party to
the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, as
Agent, in connection with the negotiation, execution and delivery
of the Credit Agreement, dated as of September 13, 1996, among
Entergy Corporation and Entergy Technology Holding Company, as
Borrowers, the banks named therein, as Banks, and The Bank of New
York, as Agent (the "Credit Agreement"). Terms defined in the
Credit Agreement that are not otherwise defined herein are used
herein with the meanings therein ascribed to them.
For the purposes of rendering the opinions contained in
this letter, we have examined executed counterparts of the Credit
Agreement and the Notes delivered on the date hereof
(collectively, the "Loan Documents").
For the purposes of this opinion, we have assumed (i)
the authenticity of all such documents submitted to us as
originals, (ii) the due authorization, execution and delivery by
the Agent and the Banks of the Loan Documents to which they are
parties, (iii) that each of the Borrowers has the corporate
power, and has taken all necessary corporate action to authorize
it, to execute, deliver and perform each of the Loan Documents to
which it is a party, (iv) that the Loan Documents have been duly
executed and delivered by each of the Borrowers that is a party
thereto and (v) that the execution, delivery and performance in
accordance with their respective terms by each of the Borrowers
of the Loan Documents to which it is a party do not and will not
(A) require any authorization or approval or other action by, or
any notice to or filing with, any governmental authority or
regulatory body (such authorizations, approvals, actions, notices
and filings hereinafter referred to as "Governmental Approvals"),
other than any such Governmental Approvals that have been
obtained or made, are final and not subject to review or
collateral attack and are in full force and effect, or (B)
violate or conflict with, result in a breach of, or constitute a
default under (1) any contract, agreement, instrument,
certificate of incorporation, charter or by-law to which either
Borrower is a party or by which it or its properties may be bound
or (2) any Governmental Approval or any order, decision, judgment
or decree of any court or arbitrator.
Based upon the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the
opinion that the Loan Documents are legal, valid and binding
obligations of the Borrowers party thereto, enforceable against
such Borrowers in accordance with their respective terms.
Our opinion above is subject to the following
qualifications and limitations:
(a) Our opinion is subject to the effect of applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
other laws affecting the enforcement of creditors' rights
generally and to the effect of general equitable principles
(whether considered in a proceeding in equity or at law). Such
principles applied by a court might include a requirement that a
creditor act with reasonableness and good faith. Furthermore, a
court may refuse to enforce a covenant where a court deems such
covenant to be violative of applicable public policy.
(b) Our opinions are limited to the law of the State
of New York and the Federal law of the United States. Without
limiting the generality of the foregoing, we express no opinion
as to the effect of the law of any jurisdiction other than the
State of New York wherein any Lender may be located or wherein
enforcement of the Loan Documents may be sought that limits the
rates of interest legally chargeable or collectable.
This opinion is intended for the sole benefit of the
Agent and the Lenders and no other person shall be entitled to
rely hereon for any purpose.
Very truly yours,