Exhibit 4(a) 17
U.S. $300,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 12, 1996
Among
ENTERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 12, 1996
THIS AMENDED AND RESTATED CREDIT AGREEMENT among ENTERGY
CORPORATION, a Delaware corporation (the Borrower ), the banks
(the Banks ) listed on the signature pages hereof, and Citibank,
N.A. ( Citibank ), as agent (the Agent ).
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent entered into
a Credit Agreement, dated as of October 10, 1995 (the Original
Credit Agreement ).
WHEREAS, the Borrower has requested that the Lenders and the
Agent amend certain provisions of the Original Credit Agreement.
WHEREAS, the Agent and the Majority Lenders are willing to
amend the Original Credit Agreement to provide as set forth
below.
NOW, THEREFORE, the parties hereto, in consideration of
their mutual covenants and agreements hereinafter set forth, and
subject to the condition set forth in Section 8.06, do hereby
agree that the Original Credit Agreement is amended and restated
in its entirety to read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS;
SECTION 1.1. 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 (i) a
percentage equal to 100% minus the Adjusted CD Rate Reserve
Percentage for such Interest Period, plus
(a) 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.
Agreement means this Amended and Restated Credit
Agreement, as amended, supplemented or modified from time to
time.
Applicable Lending Office means, with respect to each
Lender, such Lender s Domestic Lending Office in the case of
a Base Rate Advance, 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 with respect to such Auction
Advance.
Applicable Margin means, on any date, for any
Adjusted CD Rate Advance or Eurodollar Rate Advance, the
interest rate per annum set forth below, determined by
reference to the 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 A3 BBB+ and BBB- and
Senior or above Baa1 or Baa3 or
Debt BBB and split rated
Ratings Baa2 above
or split BB+ and/or
rated Ba1 or
above below or
unrated
A- and A3 E--0.35% E--0.40% E--0.48% E--0.75%
or above CD-0.475% CD--0.525% CD--0.605%
CD--0.875%
Significant BBB+ and
Subsidiary Baa1 or E--0.40% E--0.45% E--0.50% E--0.80%
with next BBB and Baa2 CD--0.525% CD--0.575% CD--0.655%
highest or
Senior split rated
Debt Rating above
CD--0.925%
BBB- and
Baa3 or E--0.48% E--0.50% E--0.55% E--0.875%
split CD-0.605% CD--0.655% CD--0.675%
rated
above
CD--1.00%
BB+ and/or
Ba1 or E--0.75% E--0.80% E--0.875% E--0.875%
below or CD-0.875% CD--0.925% CD--1.00%
unrated CD--1.00%
E = Eurodollar Rate Advance Margin
CD = Adjusted CD Rate Advance Margin
Any change in the Applicable Margin will be effective as of
the date on which S&P or Moody s, as the case may be,
announces the applicable change in any Senior Debt Rating.
Assessment Rate for the Interest Period for each
Adjusted CD Rate Advance made as part of the same Contract
Borrowing means the annual assessment rate estimated by the
Agent on the first day of such Interest Period for
determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or
any successor) for insuring U.S. dollar deposits of Citibank
in the United States.
Assignment and Acceptance means an assignment and
acceptance entered into by a Lender and an assignee of that
Lender, and accepted by the Agent, in substantially the form
of Exhibit C hereto.
Auction Advance means an advance by a Lender to the
Borrower as part of an Auction Borrowing resulting from the
auction bidding procedure described in Section 2.03.
Auction Borrowing means a borrowing consisting of
simultaneous Auction Advances from each of the Lenders whose
offer to make one or more Auction Advances as part of such
borrowing has been accepted by the Borrower under the
auction bidding procedure described in Section 2.03.
Auction Note means a promissory note of the Borrower
payable to the order of any Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of
the Borrower to such Lender resulting from an Auction
Advance made by such Lender.
Auction Reduction has the meaning specified in
Section 2.01.
Base Rate means, for any period, a fluctuating
interest rate per annum at all times equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank s base rate; and
(a) 1/2 of 1% per annum above the Federal Funds Rate
in effect from time to time.
Base Rate Advance means a Contract Advance which
bears interest as provided in Section 2.07(a).
Borrowing means a Contract Borrowing or an Auction
Borrowing.
Business Day means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
Capitalization means, as of any date of
determination, with respect to the Borrower and its
subsidiaries determined on a consolidated basis, an amount
equal to the sum of (i) the total principal amount of all
Debt of the Borrower and its subsidiaries outstanding on
such date, (i) Consolidated Net Worth as of such date and
(i) to the extent not otherwise included in Capitalization,
all preferred stock and other preferred securities of the
Borrower and its subsidiaries, including preferred
securities issued by any subsidiary trust, outstanding on
such date.
CD Lending Office means, with respect to any Lender,
the office of such Lender specified as its CD Lending
Office opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a
Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the
Agent.
Commitment has the meaning specified in Section 2.01.
Consolidated Net Worth means the sum of the capital
stock (excluding treasury stock and capital stock subscribed
for and unissued) and surplus (including earned surplus,
capital surplus and the balance of the current profit and
loss account not transferred to surplus) accounts of the
Borrower and its subsidiaries appearing on a consolidated
balance sheet of the Borrower and its subsidiaries prepared
as of the date of determination in accordance with generally
accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to
in Section 4.01(e), after eliminating all intercompany
transactions and all amounts properly attributable to
minority interests, if any, in the stock and surplus of
subsidiaries.
Contract Advance means an advance by a Lender to the
Borrower as part of a Contract Borrowing and refers to an
Adjusted CD Rate Advance, a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a Type of
Contract Advance.
Contract Borrowing means a borrowing consisting of
simultaneous Contract Advances of the same Type made by each
of the Lenders pursuant to Section 2.01 or Converted
pursuant to Section 2.09 or 2.10.
Contract Note means a promissory note of the Borrower
payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from
the Contract Advances made by such Lender.
Convert , Conversion and Converted each refers to a
conversion of Contract Advances of one Type into Contract
Advances of another Type or the selection of a new, or the
renewal of the same, Interest Period for Eurodollar Rate
Advances or CD Rate Advances, as the case may be, pursuant
to Section 2.09 or 2.10.
Debt of any Person means (without duplication) all
liabilities, obligations and indebtedness (whether
contingent or otherwise) of such Person (i) for borrowed
money or evidenced by bonds, debentures, notes, or other
similar instruments, (i) to pay the deferred purchase price
of property or services (other than such obligations
incurred in the ordinary course of business on customary
trade terms, provided that such obligations are not more
than 30 days past due), (i) as lessee under leases which
shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases,
(i) under reimbursement agreements or similar agreements
with respect to the issuance of letters of credit (other
than obligations in respect of letters of credit opened to
provide for the payment of goods or services purchased in
the ordinary course of business), (i) under any Guaranty
Obligations and (i) liabilities in respect of unfunded
vested benefits under plans covered by Title IV of ERISA.
Domestic Lending Office means, with respect to any
Lender, the office of such Lender specified as its Domestic
Lending Office opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Agent.
Eligible Assignee means a Person (a) (i) that is
(A) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in
excess of $500,000,000; (A) a commercial bank organized
under the laws of any other country which is a member of the
OECD, or a political subdivision of any such country, and
having total assets in excess of $500,000,000, provided that
such bank is acting through a branch or agency located in
the United States or another country which is also a member
of OECD; or (A) a Lender or a commercial bank Affiliate of
any Lender immediately prior to an assignment and (i) whose
long-term public senior debt securities are rated at least
BBB- by Standard & Poor s Corporation or at least Baa3" by
Moody s Investors Service, Inc.; or (a) that is approved by
the Borrower (whose approval shall not be unreasonably
withheld), the Agent and the Majority Lenders.
Entergy Arkansas means Entergy Arkansas, Inc.,
formerly Arkansas Power & Light Company, an Arkansas
corporation.
Entergy Gulf States means Entergy Gulf States, Inc.,
formerly Gulf States Utilities Company, a Texas corporation.
Entergy Louisiana means Entergy Louisiana, Inc.,
formerly Louisiana Power & Light Company, a Louisiana
corporation.
Entergy Mississippi means Entergy Mississippi, Inc.,
formerly Mississippi Power & Light Company, a Mississippi
corporation.
Entergy New Orleans means Entergy New Orleans, Inc.,
formerly New Orleans Public Service Inc., a Louisiana
corporation.
Environmental Laws means any federal, state or local
laws, ordinances or codes, rules, orders, or regulations
relating to pollution or protection of the environment,
including, without limitation, laws relating to hazardous
substances, laws relating to reclamation of land and
waterways and laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or
wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollution, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes.
ERISA means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder, each
as amended and modified from time to time.
ERISA Affiliate of a person or entity means any trade
or business (whether or not incorporated) that is a member
of a group of which such person or entity is a member and
that is under common control with such person or entity
within the meaning of Section 414 of the Internal Revenue
Code of 1986, and the regulations promulgated and rulings
issued thereunder, each as amended or modified from time to
time.
ERISA Plan means an employee benefit plan maintained
for employees of any Person or any ERISA Affiliate of such
Person subject to Title IV of ERISA.
ERISA Termination Event means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to PBGC), or (i) the
withdrawal of the Borrower or any of its ERISA Affiliates
from an ERISA Plan during a plan year in which the Borrower
or any of its ERISA Affiliates was a substantial employer
as defined in Section 4001(a)(2) of ERISA, or (i) the filing
of a notice of intent to terminate an ERISA Plan or the
treatment of an ERISA Plan amendment as a termination under
Section 4041 of ERISA, or (i) the institution of proceedings
to terminate an ERISA Plan by the PBGC or to appoint a
trustee to administer any ERISA Plan, or (i) any other event
or condition that would constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer any ERISA Plan.
Eurocurrency Liabilities has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
Eurodollar Lending Office means, with respect to any
Lender, the office of such Lender specified as its
Eurodollar Lending Office opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Agent.
Eurodollar Rate means, for the Interest Period for
each Eurodollar Rate Advance made as part of the same
Contract Borrowing, an interest rate per annum equal to the
average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of each of the
Reference Banks in London, England, to prime banks in the
London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period
in an amount substantially equal to such Reference Bank s
Eurodollar Rate Advance made as part of such Contract
Borrowing and for a period equal to such Interest Period.
The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance made as part of the same Contract
Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions
of Section 2.09.
Eurodollar Rate Advance means a Contract Advance that
bears interest as provided in Section 2.07(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.
Events of Default has the meaning specified in
Section 6.01.
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
October 10, 1995, between the Borrower and the Agent.
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 (i) other
guaranty or similar obligations in respect of the financial
obligations of others, including, without limitation,
Support Obligations.
Interest Period means, for each Contract Advance made
as part of the same Contract Borrowing, the period
commencing on the date of such Contract Advance or the date
of the Conversion of any Contract Advance into such a
Contract Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be 30, 60, 90 or 180 days in
the case of an Adjusted CD Rate Advance, and 1, 2, 3 or 6
months in the case of a Eurodollar Rate Advance, in each
case as the 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) the Borrower may not select any Interest
Period that ends after the Termination Date;
(i) 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
(i) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day,
provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that if such extension would
cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day.
Junior Subordinated Debentures means any junior
subordinated deferrable interest debentures issued by any
Significant Subsidiary or Entergy New Orleans from time to
time.
Lenders means the Banks listed on the signature pages
hereof and each Person that shall become a party hereto
pursuant to Section 8.07.
Lien means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its subsidiaries shall be
deemed to own, subject to a Lien, any asset that it has
acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
Majority Lenders means at any time Lenders holding at
least 66-2/3% of the then aggregate unpaid principal amount
of the Contract Notes held by Lenders, or, if no such
principal amount is then outstanding, Lenders having at
least 66-2/3% of the Commitments (without giving effect to
any termination in whole of the Commitments pursuant to
Section 6.02), provided, that for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall
be included in (i) the Lenders holding such amount of the
Contract Advances or having such amount of the Commitments
or (i) determining the aggregate unpaid principal amount of
the Contract Advances or the total Commitments.
Moody s means Moody s Investors Service, Inc. or any
successor thereto.
Multiemployer Plan means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
three plan years made or accrued an obligation to make
contributions.
Non-Recourse Debt means any Debt of any subsidiary of
the Borrower that does not constitute Debt of the Borrower,
any Significant Subsidiary or Entergy New Orleans.
Note means a Contract Note or an Auction Note.
Notice of Contract Borrowing has the meaning
specified in Section 2.02(a).
Notice of Auction Borrowing has the meaning specified
in Section 2.03(a).
OECD means the Organization for Economic Cooperation
and Development.
Original Credit Agreement has the meaning assigned to
that term in the recitals to this Agreement.
PBGC means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions
under ERISA.
Person means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency
thereof.
Prepayment Event means the occurrence of any event or
the existence of any condition under any agreement or
instrument relating to any Debt of the Borrower or of a
Significant Subsidiary that, in either case, is outstanding
in a principal amount in excess of $50,000,000 in the
aggregate, which occurrence or event results in the
declaration of such Debt being due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof.
Reference Banks means Citibank, The Bank of New York
and Union Bank of Switzerland.
Register has the meaning specified in
Section 8.07(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.
SEC Order has the meaning specified in
Section 3.01(a)(iii).
Senior Debt Rating means, as to any Person, the
rating assigned by Moody s or S&P to the senior secured long-
term debt of such Person.
SERI means Systems Energy Resources, Inc., an
Arkansas corporation.
Significant Subsidiary means Entergy Arkansas,
Entergy Gulf States, Entergy Louisiana, Entergy Mississippi,
SERI and any other domestic regulated utility subsidiary of
the Borrower: (i) the total assets (after intercompany
eliminations) of which exceed 5% of the total assets of the
Borrower and its subsidiaries or (i) the net worth of which
exceeds 5% of the Consolidated Net Worth of the Borrower and
its subsidiaries, in each case as shown on the most recent
audited consolidated balance sheet of the Borrower and its
subsidiaries.
Support Obligations means any financial obligation,
contingent or otherwise, of any Person guaranteeing or
otherwise supporting any Debt or other obligation of any
other Person in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such
Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt,
(i) to purchase property, securities or services for the
purpose of assuring the owner of such Debt of the payment of
such Debt, (i) to maintain working capital, equity capital,
available cash or other financial statement condition of the
primary obligor so as to enable the primary obligor to pay
such Debt, (i) 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 (i) 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 October 10, 1998, 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 1.2. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word from means from and
including and the words to and until each means to but
excluding .
SECTION 1.3. 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
AMOUNTS AND TERMS OF THE ADVANCES;
SECTION 2.1. The Contract Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to
make Contract Advances to the Borrower from time to time on any
Business Day during the period from the date hereof until the
Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set opposite such Lender s name on
Schedule III hereto 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 8.07(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 $5,000,000
or an integral multiple of $1,000,000 in excess thereof and shall
consist of Contract Advances of the same Type and, in the case of
Eurodollar Rate Advances or 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 Borrower may
from time to time borrow, prepay pursuant to Section 2.11 and
reborrow under this Section 2.01; provided, however, that at no
time may the principal amount outstanding hereunder exceed the
aggregate amount of the Commitments.
SECTION 2.2. 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 (i) in the case of a Contract
Borrowing comprising Base Rate Advances, not later than
11:00 A.M. (New York City time) on the date of the proposed
Contract Borrowing, by the Borrower to the 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, (A) Type of
Contract Advances to be made in connection with such Contract
Borrowing, (A) aggregate amount of such Contract Borrowing, and
(A) 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 8.02, 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 Borrower at the Agent s
aforesaid address.
(b) Each Notice of Contract Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Notice of
Contract Borrowing requesting Adjusted CD Rate Advances or
Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
specified in such Notice of Contract Borrowing for such Contract
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Contract Advance to be
made by such Lender as part of such Contract Borrowing when such
Contract Advance, as a result of such failure, is not made on
such date.
(c) Unless the 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 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 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 the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to Contract
Advances made in connection with such Contract Borrowing and
(i) 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 2.3. The Auction Advances. (a) Each Lender
severally agrees that the Borrower may request Auction Borrowings
under this Section 2.03 from time to time on any Business Day
during the period from the date hereof until the date occurring
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) The 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 (1) the Termination Date),
the interest payment date or dates relating thereto (which
shall occur at least every 90 days), and any other terms to
be applicable to such Auction Borrowing, not later than
10:00 A.M. (New York City time) (x) at least one Business
Day prior to the date of the proposed Auction Borrowing, if
the Borrower shall specify in the Notice of Auction
Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum and (y) at least five
Business Days prior to the date of the proposed Auction
Borrowing, if the Borrower shall specify in the Notice of
Auction Borrowing the basis (such as a quoted London
interbank offered rate or the Federal Funds Rate) to be used
by the Lenders in determining the rates of interest to be
offered by them and (A) payment in full to the Agent of the
aggregate auction administration fee specified in
Section 2.04(b) hereof. The Agent shall in turn promptly
notify each Lender of each request for an Auction Borrowing
received by it from the Borrower by sending such Lender a
copy of the related Notice of Auction Borrowing.
(ii) Each Lender may, in its sole discretion, if it
elects to do so, irrevocably offer to make one or more
Auction Advances to the Borrower as part of such proposed
Auction Borrowing at a rate or rates of interest specified
by such Lender in its sole discretion, by notifying the
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 (A) three
Business Days before the date of such proposed Auction
Borrowing, in the case of a Notice of Auction Borrowing
delivered pursuant to clause (A)(y) of paragraph (i), above,
of the minimum amount and maximum amount of each Auction
Advance that such Lender would be willing to make as part of
such proposed Auction Borrowing (which amounts may, subject
to the proviso to the first sentence of this
Section 2.03(a), exceed such Lender s Commitment), the rate
or rates of interest therefor, the basis, rate and margin
used by such Lender (if applicable) in determining the rate
or rates of interest so offered and the Yield (if different
from such rate or rates), the interest period relating
thereto and such Lender s Applicable Lending Office with
respect to such Auction Advance; provided that if the Agent
in its capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Borrower
of such offer before 9:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
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 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 (A) 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 the 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 Borrower shall
not accept an offer made pursuant to paragraph (ii)
above, at any Yield if the Borrower shall have, or
shall be deemed to have, rejected any other offer made
pursuant to paragraph (ii) above, at a lower Yield,
(x) if the Borrower declines to accept, or is otherwise
restricted by the provisions of this Agreement from
accepting, the maximum aggregate principal amount of
Auction Borrowings offered at the same Yield pursuant
to paragraph (ii) above, then the Borrower shall accept
a pro rata portion of each offer made at such Yield,
based as nearly as possible on the ratio of the
aggregate principal amount of such offers to be
accepted by the Borrower to the maximum aggregate
principal amount of such offers made pursuant to
paragraph (ii) above (rounding up or down to the next
higher or lower multiple of $1,000,000), (y) no offer
made pursuant to paragraph (ii) above shall be accepted
unless the Auction Borrowing in respect of such offer
is in an integral multiple of $1,000,000 and the
aggregate amount of such offers accepted by the
Borrower is equal to at least $5,000,000, and (z) no
offer made pursuant to paragraph (ii) above shall be
accepted at any interest rate in excess of the Base
Rate then in effect plus 2% per annum (or such higher
rate as may be permitted by applicable law, regulation
or order).
Any offer or offers made pursuant to paragraph (ii) above
not expressly accepted or rejected by the Borrower in
accordance with this paragraph (iii) shall be deemed to have
been rejected by the Borrower.
(iv) If the Borrower notifies the 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 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 the Borrower, (A) 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 (A) 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 8.02 such Lender s portion of such
Auction Borrowing, in same day funds. Upon fulfillment of
the applicable conditions set forth in Article III and after
receipt by the Agent of such funds, the Agent will make such
funds available to the 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 Borrower accepts one or more of the offers
made by any Lender pursuant to clause (B) of paragraph (iii)
above, the Borrower shall indemnify such Lender against any
loss, cost or expense incurred by such Lender as a result of
any failure by the Borrower to fulfill on or before the date
specified for such Auction Borrowing the applicable
conditions set forth in Article III, including, without
limitation, any loss, cost or expense incurred by reason of
the liquidation or redeployment of deposits or other funds
acquired by such Lender to fund the Auction Advance to be
made by such Lender as part of such Auction Borrowing when
such Auction Advance, as a result of such failure, is not
made on such date.
(b) Each Auction Borrowing shall be in an amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Auction Borrowing, the
Borrower shall be in compliance with the limitation set forth in
the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to
subsection (d) below, and reborrow under this Section 2.03,
provided that an Auction Borrowing shall not be made within three
Business Days of the date of any other Auction Borrowing.
(d) The Borrower shall repay to the Agent for the account
of each Lender that has made an Auction Advance, or each other
holder of an Auction Note, on the maturity date of each Auction
Advance (such maturity date being that specified by the Borrower
for repayment of such Auction Advance in the related Notice of
Auction Borrowing delivered pursuant to subsection (a)(i) above
and provided in the Auction Note evidencing such Auction
Advance), the then unpaid principal amount of such Auction
Advance. The Borrower shall have no right to prepay any
principal amount of any Auction Advance unless, and then only on
the terms, specified by the Borrower for such Auction Advance in
the related Notice of Auction Borrowing delivered pursuant to
subsection (a)(i)(A) above and set forth in the Auction Note
evidencing such Auction Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Auction Advance from the date of such Auction
Advance to the date the principal amount of such Auction Advance
is repaid in full, at the rate of interest for such Auction
Advance specified by the Lender making such Auction Advance in
its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Auction Advance in the
related Notice of Auction Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the Auction Note
evidencing such Auction Advance; provided, however, that, if and
for so long as a Prepayment Event or an Event of Default shall
have occurred and be continuing, the unpaid principal amount of
each Auction Advance shall (to the fullest extent permitted by
law) bear interest until paid in full at a rate per annum equal
at all times to the Base Rate plus 2% per annum, payable upon
demand.
(f) The indebtedness of the Borrower resulting from each
Auction Advance made to the Borrower as part of an Auction
Borrowing shall be evidenced by a separate Auction Note of the
Borrower payable to the order of the Lender making such Auction
Advance.
SECTION 2.4. Fees. (a) The Borrower 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
Senior A3 or Baa1 or Baa3
Debt Rating above BBB and or split
Baa2 or rated
split above
rated BB+ and/or
above Ba1 or
below or
unrated
A- and A3
or above .125% .1375% .18%
.23%
Significant BBB+ and
Subsidiary Baa1 or
with next BBB and .1375% .17% .1875%
highest Baa2 or
Senior Debt split rated
Rating above
.25%
BBB- and
Baa3 .18% .1875% .20%
or
split rated
above
.30%
BB+ and/or
Ba1 or .23% .25% .30%
below or
unrated
.30%
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.
(b) The Borrower agrees to pay to the Agent for its own
account an auction administration fee in the amount of $2,000 in
respect of each Auction Borrowing requested by the Borrower
pursuant to Section 2.03(a)(i), payable on the date of such
request.
SECTION 2.5. Reduction of the Commitments. (a) The
Borrower 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.
(b) Notwithstanding any other provision of this Agreement
or the Notes (and without further notice to the Borrower),
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 Ba1
or below, the Commitments hereunder shall terminate in whole and
this Agreement shall terminate.
SECTION 2.6. Repayment of Contract Advances. The Borrower
shall repay the principal amount of each Contract Advance made by
each Lender in accordance with the Contract Note to the order of
such Lender.
SECTION 2.7. Interest on Contract Advances. The Borrower
shall pay interest on the unpaid principal amount of each
Contract Advance made by each Lender from the date of such
Contract Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) Base Rate Advances. If such Contract Advance is a
Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, 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 2.8. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to each Lender, so long as such
Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender,
from the date of such Contract Advance until such principal
amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Contract Advance
from (i) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Contract Advance.
Such additional interest shall be determined by such Lender and
notified to the Borrower through the Agent, and such
determination shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.9. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Adjusted CD Rate or
Eurodollar Rate, as applicable. If any one or more of the
Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the
Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(b) The Agent shall give prompt notice to the 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 each Reference Bank for the
purpose of determining the applicable interest rate under
Section 2.07(b) or (c).
(c) If fewer than two Reference Banks 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 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 Borrower and the
Lenders that the circumstances causing such suspension no
longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the 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 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 Borrower
and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.10. Conversion of Contract Advances.
(a) Voluntary. The Borrower may, upon notice given to the
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 Borrower shall
also reimburse the Lenders in respect thereof pursuant to
Section 8.04(b) on the date of such Conversion. Each such notice
of a Conversion (a Notice of Conversion ) shall be by
telecopier, telex or cable, confirmed immediately in writing, in
substantially the form of Exhibit B-3 hereto, specifying therein
(i) the date of such Conversion, (i) the Contract Advances to be
Converted, and (i) 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 the Borrower and the Lenders, and
such Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate
Advances.
(c) Failure to Convert. Each notice of Conversion given
pursuant to subsection (a) above shall be irrevocable and binding
on the Borrower. In the case of any Contract Borrowing that is
to comprise Eurodollar Rate Advances or Adjusted CD Rate Advances
upon Conversion, the Borrower agrees to indemnify each Lender
against any loss, cost or expense incurred by such Lender if, as
a result of the failure of the Borrower to satisfy any condition
to such Conversion (including, without limitation, the occurrence
of any Prepayment Event or Event of Default, or any event that
would constitute an Event of Default or a Prepayment Event with
notice or lapse of time or both), such Conversion does not occur.
The Borrower s obligations under this subsection (c) shall
survive the repayment of all other amounts owing to the Lenders
and the Agent under this Agreement and the Notes and the
termination of the Commitments.
SECTION 2.11. Prepayments. The 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 the Borrower shall, prepay the outstanding
principal amounts of the Advances made as part of the same
Contract Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (i) each partial
prepayment shall be in an aggregate principal amount not less
than $1,000,000 or any integral multiple of $100,000 in excess
thereof and (i) in the case of any such prepayment of an Adjusted
CD Advance or Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(b) on the date of such prepayment.
SECTION 2.12. Increased Costs. (a) If, due to either
(i) the introduction of or any change (other than any change by
way of imposition or increase of reserve requirements, in the
case of 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 (i) 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 the Borrower
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 the Borrower 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), the Borrower 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 the Borrower and the Agent by
such Lender shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.13. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the 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 Borrower and the
Lenders that the circumstances causing such suspension no longer
exist and (i) the Borrower shall forthwith prepay in full all
Eurodollar Rate Advances of all Lenders then outstanding,
together with interest accrued thereon, unless the Borrower,
within five Business Days of notice from the Agent, Converts all
Eurodollar Rate Advances of all Lenders then outstanding into
Advances of another Type in accordance with Section 2.10.
SECTION 2.14. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later
than 12:00 noon (New York City time) on the day when due in U.S.
dollars to the Agent at its address referred to in Section 8.02
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 8.04(b))
to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to
the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to
the extent payment owed to such Lender is not made when due
hereunder or under any Note held by such Lender, to charge from
time to time to the extent permitted by law against any or all of
the Borrower s accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the 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
Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in
full, the Agent may assume that the 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 the 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 the Borrower hereunder or under any
Note that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall (to the fullest extent permitted
by law) bear interest from the date when due until paid in full
at a rate per annum equal at all times to the Base Rate plus 2%,
payable upon demand.
SECTION 2.15. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Contract Notes shall be made, in
accordance with Section 2.14, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and
the 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 the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any
Lender or the 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, (i) the Borrower shall make such
deductions and (i) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or under the Notes or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement
or the Notes (hereinafter referred to as Other Taxes ).
(c) The Borrower will indemnify each Lender and the 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 the 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, the Borrower, take such actions as the Borrower
may reasonably request to preserve the Borrower s rights to
contest such Taxes or Other Taxes, and, promptly following
receipt of any refund of amounts with respect to Taxes or Other
Taxes for which such Lenders or the Agent were previously
indemnified under this Section 2.15, pay to the Borrower such
refunded amounts (including any interest paid by the relevant
taxing authority with respect to such amounts).
(d) Prior to the date of the initial Borrowing in the case
of each Bank, and on the date of the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other
Lender, and from time to time thereafter if requested by the
Borrower or the Agent, each Lender organized under the laws of a
jurisdiction outside the United States shall provide the Agent
and the Borrower with the forms prescribed by the Internal
Revenue Service of the United States certifying that such Lender
is exempt from United States withholding taxes with respect to
all payments to be made to such Lender hereunder and under the
Notes. If for any reason during the term of this Agreement, any
Lender becomes unable to submit the forms referred to above or
the information or representations contained therein are no
longer accurate in any material respect, such Lender shall notify
the Agent and the Borrower in writing to that effect. Unless the
Borrower and the Agent have received forms or other documents
satisfactory to them indicating that payments hereunder or under
any Note are not subject to United States withholding tax, the
Borrower or, if the Borrower fails to do so, the Agent, shall
withhold taxes from such payments at the applicable statutory
rate in the case of payments to or for any Lender organized under
the laws of a jurisdiction outside the United States.
(e) Any Lender claiming any additional amounts payable
pursuant to this Section 2.15 shall use its best efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable
Lending Office or take other actions customary or otherwise
reasonable under the circumstances if the making of such a change
or the taking of such actions would avoid the need for, or reduce
the amount of, any such additional amounts which may thereafter
accrue and would not, in the reasonable judgment of such Lender,
be otherwise disadvantageous to such Lender.
(f) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 2.15 shall
survive the payment in full of principal and interest hereunder
and under the Notes.
SECTION 2.16. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the Contract Advances made by it (other than pursuant to
Section 2.02(c), 2.08, 2.12, 2.15 or 8.04(b)) in excess of its
ratable share of payments on account of the Contract Advances
obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Contract
Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them, provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender s ratable share (according to the proportion
of (i) the amount of such Lender s required repayment to (i) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.17. Extension of Termination Date. (a) Unless
the Termination Date shall have occurred, at least 90 but not
more than 180 days prior to the then-effective Termination Date,
the Borrower may request the Lenders, by written notice to the
Agent, to consent to a one-year extension of the Termination
Date. Each Lender shall, in its sole discretion, determine
whether to consent to such request and shall notify the Agent of
its determination within 30 days of such Lender s receipt of
notice of such request. If such request shall have been
consented to by all the Lenders, the Agent shall notify the
Borrower in writing of such consent, and such extension shall
become effective upon the delivery by the Borrower to the Agent
and each Lender, on or prior to the then effective Termination
Date, of (i) a certificate of a duly authorized officer of the
Borrower, dated such date, as to the accuracy, both before and
after giving effect to such proposed extension, of the
representations and warranties set forth in Section 4.01
(including, without limitation, with respect to any required
governmental approvals) and as to the absence, both before and
after giving effect to such proposed extension, of any Prepayment
Event, any Event of Default or any event that with the giving of
notice or the passage of time or both would constitute an Event
of Default and (i) an opinion of counsel to the Borrower as to
the extension of the Termination Date and such other matters as
any Lender, through the Agent, may reasonably request.
(b) Notwithstanding any other provision of this Agreement,
the Termination Date may be extended no more than twice pursuant
to subsection (a) above.
ARTICLE III
CONDITIONS OF LENDING
CONDITIONS OF LENDING;
SECTION 3.1. Condition Precedent to Initial Advances. The
obligation of each Lender to make its initial Advance is subject
to the conditions precedent that on or before the date of such
Advance:
(a) The Agent shall have received the following, each
dated the same date (except for the financial statements
referred to in paragraph (iv) below), in form and substance
satisfactory to the Agent and (except for the Contract
Notes) with one copy for each Lender:
(i) The Contract Notes payable to the order of
each of the Lenders, respectively;
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement and the Notes, and of all documents
evidencing other necessary corporate action with
respect to this Agreement and the Notes;
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying (A) the
names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered
hereunder; (A) that attached thereto are true and
correct copies of the Certificate of Incorporation and
the By-laws of the Borrower, in each case in effect on
such date; and (A) that attached thereto are true and
correct copies of all governmental and regulatory
authorizations and approvals required for the due
execution, delivery and performance of this Agreement
and the Notes, including, without limitation, a copy of
the order (File No. 70-8149) of the SEC under the
Public Utility Holding Company Act of 1935 authorizing
the Borrower s execution, delivery and performance of
this Agreement and the Notes (the SEC Order );
(iv) Copies of the consolidated balance sheets of
the Borrower and its subsidiaries as of December 31,
1994, and the related consolidated statements of
income, retained earnings and cash flows of the
Borrower and its subsidiaries for the fiscal year then
ended, and copies of the consolidated financial
statements of the Borrower and its subsidiaries as of
June 30, 1995, in each case certified by a duly
authorized officer of the Borrower as having been
prepared in accordance with generally accepted
accounting principles consistently applied;
(v) A favorable opinion of counsel for the
Borrower, acceptable to the Agent, substantially in the
form of Exhibit D hereto and as to such other matters
as any Lender through the Agent may reasonably request;
(vi) A favorable opinion of King & Spalding,
Special New York counsel for the Agent, substantially
in the form of Exhibit E hereto; and
(vii) A duly executed and delivered Form U-1,
in the form prescribed by Regulation U issued by the
Board of Governors of the Federal Reserve System.
(b) The Agent shall have received the fees payable
pursuant to the Fee Letter.
SECTION 3.2. 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 Borrower of any proceeds
of a Contract Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Contract
Borrowing or Conversion, as applicable, such statements are
true):
(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;
(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; and
(ii) The Agent shall have received such other
approvals, opinions or documents with respect to the truth
of the foregoing statements (A) and (B) as any Lender
through the Agent may reasonably request.
SECTION 3.3. 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 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
each of the giving of the applicable Notice of Auction
Borrowing and the acceptance by a Borrower of the proceeds
of such Auction Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such
Auction Borrowing such statements are true):
(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; and
(C) The Borrower shall have delivered to the
Agent copies of such other approvals and documents with
respect to the truth of the foregoing statements (A)
and (B) as any Lender through the Agent may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES;
SECTION 4.1. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to
do business as a foreign corporation in each jurisdiction in
which the nature of the business conducted or the property
owned, operated or leased by it requires such qualification,
except where failure to so qualify would not materially
adversely affect its condition (financial or otherwise),
operations, business, properties, or prospects.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the
Borrower s corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene
(i) the Borrower s charter or by-laws, (i) law applicable to
the Borrower or its properties or (i) any contractual or
legal restriction binding on or affecting the Borrower or
its properties.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Borrower of this Agreement
or the Notes, except for the following (each of which has
been duly filed or obtained, and is final and in full force
and effect): (i) the filing of the Declaration on Form U-1
and amendments and exhibits thereto in File No. 70-8149 and
(i) the SEC Order.
(d) This Agreement is, and the Notes when delivered
hereunder will be, legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance
with their respective terms, subject, however, to any
applicable bankruptcy, reorganization, rearrangement,
moratorium or similar laws affecting generally the
enforcement of creditors rights and remedies and to general
principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the
Borrower and its subsidiaries as of December 31, 1994 and
for the year ended on such date, as set forth in the
Borrower s Annual Report on Form 10-K for the fiscal year
ended on such date, as filed with the SEC, accompanied by an
opinion of Coopers & Lybrand, and the consolidated financial
statements of the Borrower and its subsidiaries as of June
30, 1995, and for the six-month period ended on such date
set forth in the Borrower s Quarterly Report on Form 10-Q
for the fiscal quarter ended on such date, as filed with the
SEC, copies of each of which have been furnished to each
Bank, fairly present (subject, in the case of such
statements dated June 30, 1995, to year-end adjustments) the
consolidated financial condition of the Borrower and its
subsidiaries as at such dates and the consolidated results
of the operations of the Borrower and its subsidiaries for
the periods ended on such dates, in accordance with
generally accepted accounting principles consistently
applied. Except as disclosed in the Borrower s Quarterly
Report on Form 10-Q for the fiscal period ended June 30,
1995, since December 31, 1994, there has been no material
adverse change in the financial condition or operations of
the Borrower.
(f) Except as disclosed in the Borrower s Annual
Report on Form 10-K for the fiscal year ended December 31,
1994, and the Borrower s Quarterly Report on Form 10-Q for
the period ended June 30, 1995, there is no pending or
threatened action or proceeding affecting the Borrower or
any of its subsidiaries before any court, governmental
agency or arbitrator that, if determined adversely, could
reasonably be expected to have a material adverse effect
upon the condition (financial or otherwise), operations,
business, properties or prospects of the Borrower or on its
ability to perform its obligations under this Agreement or
any Note, or that purports to affect the legality, validity,
binding effect or enforceability of this Agreement or any
Note. There has been no change in any matter disclosed in
such filings that could reasonably be expected to result in
such a material adverse effect.
(g) No event has occurred and is continuing that
constitutes a Prepayment Event or an Event of Default or
that would constitute an Event of Default or a Prepayment
Event but for the requirement that notice be given or time
elapse or both.
(h) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
not more than 25% of the value of the assets of the Borrower
and its subsidiaries subject to the restrictions of
Section 5.02(a), (c) or (d) is, on the date hereof,
represented by margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal
Reserve System).
(i) The Borrower is not an investment company or a
company controlled by an investment company within the
meaning of the Investment Company Act of 1940, as amended,
or an investment advisor within the meaning of the
Investment Company Act of 1940, as amended. The Borrower is
a holding company as that term is defined in, and is
registered under, the Public Utility Holding Company Act of
1935.
(j) No ERISA Termination Event has occurred, or is
reasonably expected to occur, with respect to any ERISA Plan
that may materially and adversely affect the condition
(financial or otherwise), operations, business, properties
or prospects of the Borrower and its subsidiaries, taken as
a whole.
(k) Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) with respect to each
ERISA Plan, copies of which have been filed with the
Internal Revenue Service and furnished to the Banks, is
complete and accurate and fairly presents the funding status
of such ERISA Plan, and since the date of such Schedule B
there has been no material adverse change in such funding
status.
(l) The Borrower has not incurred, and does not
reasonably expect to incur, any withdrawal liability under
ERISA to any Multiemployer Plan.
ARTICLE V
COVENANTS OF THE BORROWER
COVENANTS OF THE BORROWER;
SECTION 5.1. Affirmative Covenants. So long as any Note or
any amount payable by the Borrower hereunder shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Majority Lenders shall otherwise consent in
writing:
(a) Keep Books; Corporate Existence; Maintenance of
Properties; Compliance with Laws; Insurance; Taxes.
(i) keep proper books of record and account, all
in accordance with generally accepted accounting
principles;
(ii) except as otherwise permitted by Section
5.02(c), preserve and keep in full force and effect its
existence and preserve and keep in full force and
effect its licenses, rights and franchises to the
extent necessary to carry on its business;
(iii) maintain and keep, or cause to be
maintained and kept, its properties in good repair,
working order and condition, and from time to time make
or cause to be made all needful and proper repairs,
renewals, replacements and improvements, in each case
to the extent such properties are not obsolete and not
necessary to carry on its business;
(iv) comply in all material respects with all
applicable laws, rules, regulations and orders, such
compliance to include, without limitation, paying
before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or
its property, except to the extent being contested in
good faith by appropriate proceedings, and compliance
with ERISA and Environmental Laws;
(v) maintain insurance with responsible and
reputable insurance companies or associations or
through its own program of self-insurance in such
amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning
similar properties in the same general areas in which
it operates and furnish to the 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. The Borrower may use the
proceeds of the Borrowings for only: (i) general corporate
purposes, and (i), subject to the terms and conditions of
this Agreement, repurchases of common stock of the Borrower
and/or investments in nonregulated and/or nonutility
businesses.
(c) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within
60 days after the end of each of the first three
quarters of each fiscal year of the Borrower, (A)
consolidated balance sheets of the Borrower and its
subsidiaries as of the end of such quarter and (A)
consolidated statements of income and retained earnings
of the Borrower and its subsidiaries for the period
commencing at the end of the previous fiscal year and
ending with the end of such quarter, each certified by
the duly authorized officer of the Borrower as having
been prepared in accordance with generally accepted
accounting principles, consistently applied;
(ii) as soon as available and in any event within
120 days after the end of each fiscal year of the
Borrower, a copy of the annual report for such year for
the Borrower and its subsidiaries, containing
consolidated financial statements for such year
certified without qualification by Coopers & Lybrand
(or such other nationally recognized public accounting
firm as the Agent may approve), and certified by a duly
authorized officer of the Borrower as having been
prepared in accordance with generally accepted
accounting principles, consistently applied;
(iii) as soon as available and in any event
within 60 days after the end of each of the first three
quarters of each fiscal year of the Borrower and within
120 days after the end of the fiscal year of the
Borrower, a certificate of the duly authorized officer
of the Borrower, stating that no Prepayment Event or
Event of Default has occurred and is continuing, or if
a Prepayment Event or Event of Default has occurred and
is continuing, a statement setting forth details of
such Prepayment Event or Event of Default, as the case
may be, and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) as soon as possible and in any event within
five days after the Borrower has knowledge of the
occurrence of each Prepayment Event, Event of Default
and each event that, with the giving of notice or lapse
of time or both, would constitute an Event of Default,
continuing on the date of such statement, a statement
of the duly authorized officer of the Borrower setting
forth details of such Prepayment Event, Event of
Default or event, as the case may be, and the actions
that the Borrower has taken and proposes to take with
respect thereto;
(v) as soon as possible and in any event within
five days after the Borrower receives notice of the
commencement of any litigation against, or any
arbitration, administrative, governmental or regulatory
proceeding involving, the Borrower or any of its
subsidiaries, that, if adversely determined, could
reasonably be expected to have a material adverse
effect on the condition (financial or otherwise),
operations, business, properties or prospects of the
Borrower, notice of such litigation describing in
reasonable detail the facts and circumstances
concerning such litigation and the Borrower s or such
subsidiary s proposed actions in connection therewith;
(vi) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of
its securities holders, and copies of all reports and
registration statements which the Borrower files with
the SEC or any national securities exchange pursuant to
the Securities Act of 1933 or the Exchange Act, and of
all certificates pursuant to Rule 24 which the Borrower
files with the SEC pursuant to the Public Utility
Holding Company Act of 1935 in connection with the
proceeding of the SEC in File No. 70-8149 related to
the SEC Order or any subsequent proceedings related
thereto;
(vii) as soon as possible and in any event
(A) within 30 days after the Borrower knows or has
reason to know that any ERISA Termination Event
described in clause (i) of the definition of ERISA
Termination Event with respect to any ERISA Plan has
occurred and (A) within 10 days after the Borrower
knows or has reason to know that any other ERISA
Termination Event with respect to any ERISA Plan has
occurred, a statement of the chief financial officer of
the Borrower describing such ERISA Termination Event
and the action, if any, that the Borrower proposes to
take with respect thereto;
(viii) promptly and in any event within two
Business Days after receipt thereof by the Borrower
from the PBGC, copies of each notice received by the
Borrower of the PBGC s intention to terminate any ERISA
Plan or to have a trustee appointed to administer any
ERISA Plan;
(ix) promptly and in any event within 30 days
after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series)
with respect to each ERISA Plan;
(x) promptly and in any event within five
Business Days after receipt thereof by the Borrower
from a Multiemployer Plan sponsor, a copy of each
notice received by the Borrower concerning the
imposition of withdrawal liability pursuant to Section
4202 of ERISA;
(xi) promptly and in any event within five
Business Days after Moody s or S&P has changed any
Senior Debt Rating of any Significant Subsidiary,
notice of such change; and
(xii) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its subsidiaries as any Lender
through the Agent may from time to time reasonably
request.
SECTION 5.2. Negative Covenants. So long as any Note or
any amount payable by the Borrower hereunder shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower
will not, without the written consent of the Majority Lenders:
(a) Liens, Etc. Create or suffer to exist any Lien
upon or with respect to any of its properties (including,
without limitation, any shares of any class of equity
security of any of its Significant Subsidiaries or of
Entergy New Orleans), in each case to secure or provide for
the payment of Debt, other than: (i) Liens in existence on
the date of this Agreement; (i) Liens for taxes, assessments
or governmental charges or levies to the extent not past
due, or which are being contested in good faith in
appropriate proceedings diligently conducted and for which
the Borrower has provided adequate reserves for the payment
thereof in accordance with generally accepted accounting
principles; (i) pledges or deposits in the ordinary course
of business to secure obligations under worker s
compensation laws or similar legislation; (i) other pledges
or deposits in the ordinary course of business (other than
for borrowed monies) that, in the aggregate, are not
material to the Borrower; (i) purchase money mortgages or
other liens or purchase money security interests upon or in
any property acquired or held by the Borrower in the
ordinary course of business to secure the purchase price of
such property or to secure indebtedness incurred solely for
the purpose of financing the acquisition of such property;
(i) 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; (i)
attachment, judgment or other similar Liens arising in
connection with court proceedings, provided that such Liens,
in the aggregate, shall not exceed $50,000,000 at any one
time outstanding, (i) other Liens not otherwise referred to
in the foregoing clauses (i) through (vii) above, provided
that such Liens, in the aggregate, shall not exceed
$100,000,000 at any one time and (i) Liens created for the
sole purpose of extending, renewing or replacing in whole or
in part Debt secured by any Lien referred in the foregoing
clauses (i) through (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 Entergy New
Orleans unless the obligations of the Borrower to the
Lenders hereunder are simultaneously and ratably secured by
such Lien pursuant to documentation satisfactory to the
Lenders.
(b) Limitation on Debt. Permit the total principal
amount of all Debt of the Borrower and its subsidiaries,
determined on a consolidated basis and without duplication
of liability therefor, at any time to exceed 65% of
Capitalization determined as of the last day of the most
recently ended fiscal quarter of the Borrower; provided,
however, that for purposes of this Section 5.02(b) Debt
and Capitalization shall not include (i) Junior
Subordinated Debentures issued to a subsidiary trust which
has issued preferred securities that are included in the
calculation of Capitalization and (i) any Debt of any
subsidiary of the Borrower that is Non-Recourse Debt.
(c) Mergers, Etc. Merge with or into or consolidate
with or into any other Person, except that the Borrower may
merge with any other Person, provided that, immediately
after giving effect to any such merger, (i) the Borrower is
the surviving corporation or (A) the surviving corporation
is organized under the laws of one of the states of the
United States of America and assumes the Borrower s
obligations hereunder in a manner acceptable to the Majority
Lenders, and (A) 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, (i) 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 (i) the Borrower shall not be liable
with respect to any Debt or allow its property to be subject
to any Lien which would not be permissible with respect to
it or its property under this Agreement on the date of such
transaction.
(d) Disposition of Assets. Sell, lease, transfer,
convey or otherwise dispose of (whether in one transaction
or in a series of transactions) any shares of voting common
stock (or of stock or other instruments convertible into
voting common stock) of any Significant Subsidiary or of
Entergy New Orleans, or permit any Significant Subsidiary or
Entergy New Orleans to issue, sell or otherwise dispose of
any of its shares of voting common stock (or of stock or
other instruments convertible into voting common stock),
except to the Borrower or a Significant Subsidiary.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
EVENTS OF DEFAULT AND REMEDIES;
SECTION 6.1. Events of Default. Each of the following
events shall constitute an Event of Default hereunder:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable, or shall
fail to pay interest thereon or any other amount payable
under this Agreement or any of the Notes within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers)
in connection with this Agreement shall prove to have been
incorrect or misleading in any material respect when made;
or
(c) The Borrower shall fail to perform or observe
(i) any term, covenant or agreement contained in
Section 5.01(b) or 5.02 or (i) any other term, covenant or
agreement contained in this Agreement on its part to be
performed or observed if the failure to perform or observe
such other term, covenant or agreement shall remain
unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Agent or any Lender;
or
(d) The Borrower shall fail to pay any principal of or
premium or interest on any Debt of the Borrower that is
outstanding in a principal amount in excess of $50,000,000
in the aggregate (but excluding Debt evidenced by the Notes)
when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or
(e) The Borrower, any Significant Subsidiary or
Entergy New Orleans shall generally not pay its debts as
such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower,
any Significant Subsidiary or Entergy New Orleans seeking to
adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall
occur; or the Borrower, any Significant Subsidiary or
Entergy New Orleans shall take any corporate action to
authorize or to consent to any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $25,000,000 shall be rendered against the Borrower
and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (i)
there shall be any period of 10 consecutive Business Days
during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(g) (i) An ERISA Plan of the Borrower or any ERISA
Affiliate of the Borrower shall fail to maintain the minimum
funding standards required by Section 412 of the Internal
Revenue Code of 1986 for any plan year or a waiver of such
standard is sought or granted under Section 412(d) of the
Internal Revenue Code of 1986, or (i) an ERISA Plan of the
Borrower or any ERISA Affiliate of the Borrower is, shall
have been or will be terminated or the subject of
termination proceedings under ERISA, or (i) the Borrower or
any ERISA Affiliate of the Borrower has incurred or will
incur a liability to or on account of an ERISA Plan under
Section 4062, 4063 or 4064 of ERISA and there shall result
from such event either a liability or a material risk of
incurring a liability to the PBGC or an ERISA Plan, or (i)
any ERISA Termination Event with respect to an ERISA Plan of
the Borrower or any ERISA Affiliate of the Borrower shall
have occurred, and in the case of any event described in
clauses (i) through (iv), (A) such event (if correctable)
shall not have been corrected and (A) the then-present
value of such ERISA Plan s vested benefits exceeds the then-
current value of assets accumulated in such ERISA Plan by
more than the amount of $25,000,000 (or in the case of an
ERISA Termination Event involving the withdrawal of a
substantial employer (as defined in Section 4001(a)(2) of
ERISA), the withdrawing employer s proportionate share of
such excess shall exceed such amount).
SECTION 6.2. Remedies. If any Prepayment Event or Event of
Default shall occur and be continuing, then, and in any such
event, the Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (i)
shall at the request, or may with the consent, of the Majority
Lenders, by notice to the Borrower, declare the Notes, all
interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes,
all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to
the Borrower, any Significant Subsidiary or Entergy New Orleans
under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (A)
the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
THE AGENT;
SECTION 7.1. 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 which exposes the Agent to personal
liability or which 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 the Borrower pursuant to the terms of
this Agreement.
SECTION 7.2. 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 which is the payee of such Note, as
assignor, and any assignee pursuant to Section 8.07; (i) may
consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (i) 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;
(i) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; (i) 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 (i) shall
incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.3. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Notes issued to it,
Citibank shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Agent; and the term Lender or Lenders shall,
unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of,
and generally engage in any kind of business with, the Borrower,
any of its subsidiaries and any Person who may do business with
or own securities of the Borrower or any such subsidiary, all as
if Citibank were not the Agent and without any duty to account
therefor to the Lenders.
SECTION 7.4. 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 7.5. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts
of the Contract Notes then held by each of them (or if no
Contract Notes are at the time outstanding or if any Contract
Notes are held by Persons which are not Lenders, ratably
according to the respective amounts of their Commitments), from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the 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
the Borrower but for which the Agent is not reimbursed by the
Borrower.
SECTION 7.6. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by
the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor
Agent, which, for so long as no Prepayment Event or Event of
Default has occurred and is continuing, shall be a Lender and
shall be approved by the Borrower (with such approval not to be
unreasonably withheld or delayed). If no successor Agent shall
have been so appointed by the Majority Lenders and approved by
the Borrower, and shall have accepted such appointment, within 30
days after the retiring 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 an 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 the Borrower, which
consent shall not be unreasonably withheld or delayed.
ARTICLE VIII
MISCELLANEOUS
MISCELLANEOUS;
SECTION 8.1. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Contract Notes, nor
consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed
by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the
Lenders (other than any Lender that is the Borrower or an
Affiliate of the Borrower), do any of the following: (a) waive
any of the conditions specified in Section 3.01, 3.02 or 3.03,
(a) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (a) reduce the principal
of, or interest on, the Contract Notes or any fees or other
amounts payable hereunder, (a) postpone any date fixed for any
payment of principal of, or interest on, the Contract Notes or
any fees or other amounts payable hereunder, (a) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Contract Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take
any action hereunder or (a) amend this Section 8.01 or Section
2.17(a); 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 8.2. 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 the Borrower, at its address at 639 Loyola
Avenue, New Orleans, LA 70113, Attention: Treasurer; if to any
Bank, at its Domestic Lending Office specified opposite its name
on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its
address at 399 Park Avenue, New York, New York 10043, Attention:
Utilities Department, North American Finance Group; 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(c), notices
and other communications given by the Borrower to the Agent shall
be deemed given to the Lenders.
SECTION 8.3. No Waiver; Remedies 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 8.4. Costs and Expenses; Indemnification
Indemnification;. (a) The Borrower 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 the Borrower with respect to the
aforementioned expenses shall describe such costs and expenses in
reasonable detail. The Borrower further agrees to pay on demand
all costs and expenses, if any (including, without limitation,
counsel fees and expenses of outside counsel and of internal
counsel), incurred by the Agent and the Lenders in connection
with the enforcement (whether through negotiations, legal
proceedings or otherwise) of, and the protection of the rights of
the Lenders under, this Agreement, the Notes and the other
documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection
with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
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 the Borrower pursuant to Section 8.07(h) or (i) or
for any other reason, the 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 which it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits upon such Lender s
representation to the Borrower that it has made reasonable
efforts to mitigate such loss), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Contract
Advance. Any Lender making a demand pursuant to this Section
8.04(b) shall provide the Borrower with a written certification
of the amounts required to be paid to such Lender, showing in
reasonable detail the basis for the Lender s determination of
such amounts; provided, however, that no Lender shall be required
to disclose any confidential or proprietary information in any
certification provided pursuant hereto, and the failure of any
Lender to provide such certification shall not affect the
obligations of the Borrower hereunder.
(c) The Borrower hereby agrees to indemnify and hold each
Lender, the Agent and their respective Affiliates and their
respective officers, directors, employees and professional
advisors (each, an Indemnified Person ) harmless from and
against any and all claims, damages, losses, liabilities, costs
or expenses (including reasonable attorney s fees and expenses,
whether or not such Indemnified Person is named as a party to any
proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) that any of them may incur or
which may be claimed against any of them by any person or entity
by reason of or in connection with the execution, delivery or
performance of this Agreement, the Notes or any transaction
contemplated thereby, or the use by the Borrower or any of its
subsidiaries of the proceeds of any Advance, except that no
Indemnified Person shall be entitled to any indemnification
hereunder to the extent that such claims, damages, losses,
liabilities, costs or expenses are finally determined by a court
of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnified Person. The
Borrower s obligations under this Section 8.04(c) shall survive
the repayment of all amounts owing to the Lenders and the Agent
under this Agreement and the Notes and the termination of the
Commitments. If and to the extent that the obligations of the
Borrower under this Section 8.04(c) are unenforceable for any
reason, the Borrower agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible under
applicable law.
SECTION 8.5. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default or Prepayment
Event and (i) 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 the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this
Agreement and any Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such
Note and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section
8.05 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Lender
may have.
SECTION 8.6. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the
Agent and Lenders constituting the Majority Lenders (as defined
in the Original Credit Agreement) and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.7. 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) the
Borrower 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; (i) 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); (i)
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 (i) the parties
to each such assignment shall execute and deliver to the Agent,
for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Contract Note or Notes subject
to such assignment and a processing and recordation fee of $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; (i) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (i) 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; (i) 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; (i) 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 (i) such assignee agrees that
it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to
be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and
principal amount of the Contract Advances owing to, each Lender
from time to time (the Register ). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, together with
any Contract Note or Notes subject to such assignment, the 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, (i) record the information contained
therein in the Register and (i) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Contract
Note or Notes a new Contract Note to the order of such assignee
in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Contract Note to the order
of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Contract Note or Notes shall
be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Contract Note or Notes,
shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or other
entities any Auction Note or Notes held by it, without the
consent of the Borrower.
(f) Each Lender may sell participations to one or more
banks, financial institutions or other entities in or to all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Lender s obligations
under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (i)
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (i) such Lender
shall remain the holder of any such Note for all purposes of this
Agreement, and (i) the Borrower, 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 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(h) If any Lender shall fail to consent to the extension of
the Termination Date 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, the Borrower may demand that
such Lender assign in accordance with this Section 8.07 to one or
more assignees designated by the Borrower and acceptable to the
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 the Borrower shall
fail to consummate such assignment on terms acceptable to such
Lender, or if the Borrower shall fail to designate any such
assignee for all of such Lender s Commitment or Advances, then
such Lender may assign 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 8.07 during such 15-day period; it being understood for
purposes of this Section 8.07(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 the Borrower, if such assignee
(i) shall agree to such assignment in substantially the form of
Exhibit C hereto and (i) shall offer compensation to such Lender
in an amount equal to the sum of the principal amount of all
Contract Advances outstanding to such Lender plus all interest
accrued thereon to the date of such payment plus all other
amounts payable by the Borrower to such Lender hereunder (whether
or not then due) as of the date of such payment accrued in favor
of such Lender hereunder.
(i) If any Lender shall make any demand for payment under
Section 2.12 or 2.15, or if any Lender shall be the subject of
any notification or assertion of illegality under Section 2.13,
then within 30 days after any such demand (if, but only if, such
demanded payment has been made by the Borrower) or notification
or assertion, the Borrower may, with the approval of the Agent
(which approval shall not be unreasonably withheld) and provided
that no Prepayment Event, Event of Default or event that, with
the giving of notice or lapse of time or both, would constitute
an Event of Default, shall then have occurred and be continuing,
demand that such Lender assign in accordance with this Section
8.07 to one or more assignees designated by the Borrower and
acceptable to the Majority Lenders (provided that, for purposes
of this determination by the Majority Lenders, the Lender making
a demand for payment or subject to a notification or assertion of
illegality 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 period ending on the later to occur of such 30th day
and the last day of the longest of the then current Interest
Periods for such Advances. If any such assignee designated by
the Borrower and approved by the Majority Lenders shall fail to
consummate such assignment on terms acceptable to such Lender, or
if the Borrower shall fail to designate any such assignees
acceptable to the Majority Lenders for all or part of such Lender
s Commitment or Advances, then such demand by the Borrower shall
become ineffective; it being understood for purposes of this
subsection (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 the Borrower, if such Eligible Assignee
(A) shall agree to such assignment by entering into an Assignment
and Acceptance with such Lender and (A) shall offer compensation
to such Lender in an amount equal to all amounts then owing by
the Borrower to such Lender hereunder and under the Note made by
the Borrower to such Lender, whether for principal, interest,
fees, costs or expenses (other than the demanded payment referred
to above and payable by the Borrower as a condition to the
Borrower s right to demand such assignment), or otherwise. In
addition, in the event that the Borrower shall be entitled to
demand the replacement of any Lender pursuant to this subsection
(i), the Borrower 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 then have
occurred and be continuing, terminate all (but not less than all)
such Lender s Commitment and prepay all (but not less than all)
such Lender s Advances not so assigned, together with all
interest accrued thereon to the date of such prepayment and all
fees, costs and expenses and other amounts then owing by the
Borrower to such Lender hereunder and under the Note made by the
Borrower to such Lender, at any time from and after such later
occurring day in accordance with Sections 2.05 and 2.11 hereof
(but without the requirement stated therein for ratable treatment
of the other Lenders), if and only if, after giving effect to
such termination and prepayment, the sum of the aggregate
principal amount of the Advances of all Lenders then outstanding
does not exceed the then remaining Commitments of the Lenders.
Notwithstanding anything set forth above in this subsection (i)
to the contrary, the Borrower shall not be entitled to compel the
assignment by any Lender demanding payment under Section 2.12(a)
of its Commitment and Advances or terminate and prepay the
Commitment and Advances of such Lender if, prior to or promptly
following any such demand by the Borrower, such Lender shall have
changed or shall change, as the case may be, its Applicable
Lending Office for its Eurodollar Rate Advances so as to
eliminate the further incurrence of such increased cost. In
furtherance of the foregoing, any such Lender demanding payment
or giving notice as provided above agrees to use reasonable
efforts to so change its Applicable Lending Office if, to do so,
would not result in the incurrence by such Lender of additional
costs or expenses which it deems material or, in the sole
judgment of such Lender, be inadvisable for regulatory,
competitive or internal management reasons.
(j) Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 8.8. 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 8.9. Consent to Jurisdiction; Waiver of Jury Trial
Waiver of Jury Trial;. (a) To the fullest extent permitted by
law, the Borrower hereby irrevocably (i) submits to the non-
exclusive jurisdiction of any New York State or Federal court
sitting in New York City and any appellate court from any thereof
in any action or proceeding arising out of or relating to this
agreement or any other Loan Document, and (i) agrees that all
claims in respect of such action or proceeding may be heard and
determined in such New York State court or in such Federal court.
The Borrower hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Borrower also
irrevocably consents, to the fullest extent permitted by law, to
the service of any and all process in any such action or
proceeding by the mailing by certified mail of copies of such
process to the Borrower at its address specified in Section 8.02.
The Borrower agrees, to the fullest extent permitted by law, that
a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(b) THE BORROWER, THE AGENT AND THE LENDERS HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY NOTE, OR ANY OTHER INSTRUMENT OR DOCUMENT
DELIVERED HEREUNDER OR THEREUNDER.
SECTION 8.10. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ENTERGY CORPORATION
By
Name: William J. Regan Jr.
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Agent
By
Name:
Title:
Banks
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By
Name:
Title:
THE BANK OF NEW YORK
By
Name:
Title:
THE CHASE MANHATTAN BANK
By
Name:
Title:
CITIBANK, N.A.
By
Name:
Title:
UNION BANK OF SWITZERLAND
By
Name:
Title:
By
Name:
Title:
ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
THE BANK OF NOVA SCOTIA
By
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By
Name:
Title:
MELLON BANK, N.A.
By
Name:
Title:
FIRST NATIONAL BANK OF
COMMERCE
By
Name:
Title:
WHITNEY NATIONAL BANK
By
Name:
Title:
SCHEDULE I
ENTERGY CORPORATION
$300,000,000 Credit Agreement
Name of Bank Domestic Eurodollar CD
Lending Office Lending Office Lending Office
ABN AMRO Bank 135 South LaSalle 135 South LaSalle 135 South LaSalle
N.V. Street Street Street
Suite 711 Suite 711 Suite 711
Chicago, IL 60603 Chicago, IL 60603 Chicago, IL 60603
Attn: Peter D. Gaw/ Attn: Peter D. Gaw/ Attn: Peter D. Gaw/
Kevin S. Kevin S. Kevin S.
McFadden McFadden McFadden
Telephone: 312-904- Telephone: 312-904- Telephone: 312-904-
2065 2065 2065
312- 312- 312-
904-2131 904-2131 904-2131
Fax: 312-904-6387 Fax: 312-904-6387
Fax: 312-904-6387
Bank of America 333 S. Beaudry 333 S. Beaudry 333 S. Beaudry
National Trust & Avenue Avenue Avenue
Savings 19th Floor 19th Floor 19th Floor
Association Los Angeles, CA Los Angeles, CA Los Angeles, CA
90017 90017 90017
Attn: Yolanda Attn: Yolanda Attn: Yolanda
Harper Harper Harper
Telephone: 213-345- Telephone: 213-345- Telephone: 312-345-
6536 6536 6536
Fax: 213-345-6550 Fax: 213-345-6550
Fax: 213-345-6550
The Bank of New 1 Wall Street 1 Wall Street 1 Wall Street
York New York, NY 10286 New York, NY 10286 New York, NY 10286
Attn: Dennis M. Attn: Dennis M. Attn: Dennis M.
Pidherny/ Pidherny/ Pidherny/
Jo-Anne Evans Jo-Anne Evans Jo-Anne Evans
Telephone: 212-635- Telephone: 212-635- Telephone: 212-635-
7547 7547 7923
Fax: 212-635-7923 Fax: 212-635-7923
Fax: 212-635-7923
The Bank of Nova 600 Peachtree 600 Peachtree 600 Peachtree
Scotia Street N.E. Street N.E. Street N.E.
Atlanta, GA 30308 Atlanta, GA 30308 Atlanta, GA 30308
Attn: F.C.H. Ashby Attn: F.C.H. Ashby Attn: F.C.H. Ashby
Telephone: 404-877- Telephone: 404-877- Telephone: 404-877-
1500 1500 1500
Fax: 404-888-8998 Fax: 404-888-8998
Fax: 404-888-8998
CIBC, Inc. 2727 Paces Ferry 2727 Paces Ferry 2727 Paces Ferry
Road Road Road
Two Paces West Two Paces West Two Paces West
Suite 1200 Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339 Atlanta, GA 30339
Attn: Debra Attn: Debra Attn: Debra
Quintero Quintero Quintero
Telephone: 404-319- Telephone: 404-319- Telephone: 404-319-
4823 4823 4823
Fax: 404-319-4950 Fax: 404-319-4950
Fax: 404-319-4950
The Chase 270 Park Avenue 270 Park Avenue 270 Park Avenue
Manhattan New York, NY 10017 New York, NY 10017 New York, NY 10017
Bank Attn: John F. Attn: John F. Attn: John F.
Gahebe Gahebe Gahebe
Telephone: 212-270- Telephone: 212-270- Telephone: 212-270-
3531 3531 3531
Fax: 212-270-4711 Fax: 212-270-4711
Fax: 212-270-4711
Citibank, N.A. One Court Square One Court Square One Court Square
Seventh Floor, Zone Seventh Floor, Zone Seventh Floor, Zone
1 1 1
Long Island City, Long Island City, Long Island City,
NY 11120 NY 11120 NY 11120
Attn: John Mann Attn: John Mann Attn: John Mann
Telephone: 718-248- Telephone: 718-248- Telephone: 718-248-
4504 4504 4504
Fax: 718-248-4844 Fax: 718-248-4844
Fax: 718-248-4844
First National 201 St. Charles 201 St. Charles 201 St. Charles
Bank of Avenue Avenue Avenue
Commerce 28th Floor 28th Floor 28th Floor
New Orleans, LA New Orleans, LA New Orleans, LA
70170 70170 70170
Attn: J. Charles Attn: J. Charles Attn: J. Charles
Freel, Jr. Freel, Jr. Freel, Jr.
Telephone: 504-623- Telephone: 504-623- Telephone: 504-623-
1638 1638 1638
Fax: 504-623-1316 Fax: 504-623-1316
Fax: 504-623-1316
Mellon Bank, Three Mellon Bank Three Mellon Bank Three Mellon Bank
N.A. Center Center Center
Room 2332 Room 2332 Room 2332
Pittsburgh, PA Pittsburgh, PA Pittsburgh, PA
15259 15259 15259
Attn: Suzanne Cooke Attn: Suzanne Cooke Attn: Suzanne Cooke
Telephone: 412-236- Telephone: 412-236- Telephone: 412-236-
0437 0437 0437
Fax: 412-236-2027 Fax: 412-236-2027
Fax: 412-236-2027
Union Bank of 299 Park Avenue 299 Park Avenue 299 Park Avenue
Switzerland New York, NY 10171 New York, NY 10171 New York, NY 10171
Attn: Michael Flynn Attn: Michael Flynn Attn: Michael Flynn
Telephone: 212-821- Telephone: 212-821- Telephone: 212-821-
3705 3705 3705
Fax: 212-821-3259 Fax: 212-821-3259
Fax: 212-821-3259
Whitney National 228 St. Charles 228 St. Charles 228 St. Charles
Bank Avenue Avenue Avenue
New Orleans, LA New Orleans, LA New Orleans, LA
70130 70130 70130
Attn: Patricia E. Attn: David Damour Attn: David Damour
Taylor Telephone: 504-586- Telephone: 504-586-
Telephone: 504-586- 2479 2479
7208 Fax: 504-586-3502
Fax: 504-586-7383
Fax: 504-586-3502
SCHEDULE III
COMMITMENT SCHEDULE
Name of Lender
Commitment Amount
Bank of America National Trust & Savings
Association
$36,000,000
The Bank of New York
$36,000,000
The Chase Manhattan Bank
$36,000,000
Citibank, N.A.
$36,000,000
Union Bank of Switzerland
$36,000,000
ABN Amro Bank N.V.
$25,000,000
The Bank of Nova Scotia
$25,000,000
Canadian Imperial Bank of Commerce
$25,000,000
Mellon Bank, N.A.
$25,000,000
First National Bank of Commerce
$10,000,000
Whitney National Bank
$10,000,000
Total Commitment:
$300,000,000
EXHIBIT A-1
FORM OF CONTRACT NOTE
U.S.$ Dated:
, 19
FOR VALUE RECEIVED, the undersigned, ENTERGY CORPORATION, a
Delaware corporation (the Borrower ), HEREBY PROMISES TO PAY to
the order of (the
Lender ) for the account of its Applicable Lending Office (such
term and other capitalized terms herein being used as defined in
the Credit Agreement referred to below) the principal sum of
U.S.$10,000,000 or, if less, the aggregate principal amount of
the Contract Advances made by the Lender to the Borrower pursuant
to the Credit Agreement outstanding on the Termination Date,
payable on the Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Contract Advance from the date of such
Contract Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified
in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America to Citibank, N.A., as Agent, at 399
Park Avenue, New York, New York 10043, in same day funds. Each
Contract Advance made by the Lender to the Borrower pursuant to
the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which
is part of this Promissory Note.
This Promissory Note is one of the Contract Notes referred
to in, and is entitled to the benefits of, the Amended and
Restated Credit Agreement, dated as of , 1996
(the Credit Agreement ), among the Borrower, the Lender and
certain other banks parties thereto, and Citibank, N.A., 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 (i) 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
By
Name:
Title:
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Date Amount of Interest Principal Amount of Unpaid
Advance Period Paid or Principal Balance
(if any) Prepaid Notation Made By
of Advance
EXHIBIT A-2
FORM OF AUCTION NOTE
U.S.$______________ Dated: __________, 19__
FOR VALUE RECEIVED, the undersigned, ENTERGY CORPORATION,
a Delaware corporation (the Borrower ), HEREBY PROMISES TO PAY
to the order of (the Lender ) for
the account of its Applicable Lending Office (as defined in the
Credit Agreement referred to below), on , 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 Citibank, N.A., as Agent,
at 399 Park Avenue, New York, New York 10043, in same day funds,
free and clear of and without any deduction, with respect to the
payee named above, for any and all present and future taxes,
deductions, charges or withholdings, and all liabilities with
respect thereto to the extent and in the manner provided in the
Credit Agreement.
This Promissory Note is one of the Auction Notes referred
to in, and is entitled to the benefits of, the Amended and
Restated Credit Agreement, dated as of __________ ___, 1996 (the
Credit Agreement ), among the Borrower, the Lender and certain
other banks parties thereto, and Citibank, N.A., 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
By
Name:
Title:
EXHIBIT B-1
FORM OF NOTICE OF CONTRACT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the
Amended and Restated Credit Agreement, dated as of __________
___, 1996 (the Credit Agreement , the terms defined therein
being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as 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 .
(i) 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].
(i) 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
(A) no event has occurred and is continuing, or would
result from such Proposed Contract Borrowing or from the
application of the proceeds therefrom, that constitutes a
Prepayment Event or an Event of Default or would
constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
Very truly yours,
ENTERGY CORPORATION
By
Name:
Title:
EXHIBIT B-2
FORM OF NOTICE OF AUCTION BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the
Amended and Restated Credit Agreement, dated as of __________
___, 1996 (the Credit Agreement , the terms defined therein
being used herein as therein defined), among the undersigned,
certain Lenders parties thereto and Citibank, N.A., as 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
(A) Amount of Auction Borrowing
(A) Maturity Date
(A) Interest Rate Basis and Margin
(A) Interest Computation Basis
(A) Interest Payment Date(s)
(A) 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;
(a) 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
(a) 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.
The undersigned hereby confirms that the Proposed Auction
Borrowing is to be made available to it in accordance with
Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
ENTERGY CORPORATION
By
Name:
Title:
EXHIBIT B-3
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the
Amended and Restated Credit Agreement, dated as of
, 1996 (the Credit Agreement , the terms defined therein being
used herein as therein defined), among the undersigned, certain
Lenders party thereto and Citibank, N.A., as 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
__________, _____.
(i) The Type of Advances comprising the Proposed
Conversion is [Adjusted CD Rate Advances] [Base Rate
Advances] [Eurodollar Rate Advances].
(i) The aggregate amount of the Proposed Conversion is
$__________.
(i) The Type of Advances to which such Advances are
proposed to be Converted is [Adjusted CD Rate Advances]
[Base Rate Advances] [Eurodollar Rate Advances].
(i) The Interest Period for each Advance made as part
of the Proposed Conversion is [ days]
[ month(s)].*
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
(A) The statements contained in Section 3.02 of the
Credit Agreement are true.
Very truly yours,
ENTERGY CORPORATION
By
Title:
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ___________, 19__
Reference is made to the Amended and Restated Credit
Agreement, dated as of __________ ___, 1996 (as amended, modified
or supplemented from time to time, the Credit Agreement ), among
Entergy Corporation, a corporation (the Borrower
), the Lenders (as defined in the Credit Agreement) and Citibank,
N.A., 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:
(a) The Assignor hereby sells and assigns to the Assignee
without recourse, and the Assignee hereby purchases and assumes
from the Assignor, that interest in and to all of the Assignor s
rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Auction Advances and Auction
Notes) which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the
Credit Agreement (other than in respect of Auction Advances and
Auction Notes), including, without limitation, such interest in
the Assignor s Commitment, the Contract Advances owing to the
Assignor, and the Contract Note[s] held by the Assignor. After
giving effect to such sale and assignment, the Assignee s
Commitment and the amount of the Contract Advances owing to the
Assignee will be as set forth in Section 2 of Schedule 1.
(b) The Assignor (A) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by
it hereunder and that such interest is free and clear of any
adverse claim; (B) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; (C) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any
of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and
(D) attaches the Contract Note[s] referred to in paragraph 1
above and requests that the Agent exchange such Contract Note[s]
for a new Contract Note payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee
pursuant hereto or new Contract Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
Except as specified in this Section 2, the assignment hereunder
shall be without recourse to the Assignor.
(c) The Assignee (A) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment and Acceptance; (B) agrees that it will, independently
and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement; (C) appoints and authorizes the 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; (D) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; [and]
(E) specifies as its 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].
(d) 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.
(e) Upon such acceptance and recording by the Agent, as
of the Effective Date, (A) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender
thereunder and (B) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
(f) Upon such acceptance and recording by the 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.
(g) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(h) This Assignment and Acceptance may be signed in any
number of counterparts, each of which shall be deemed an
original, with the same effect as if the signatures thereto and
hereto were up on the same instrument.
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
CITIBANK, N.A., as Agent
By
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated __________, 19__
Section (i)
Percentage Interest: %
Section (j)
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 (k)
Effective Date : _________, 19__
EXHIBIT D
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[Date]
To each of the Lenders parties to the
Credit Agreement referred to on the
Signature Page Hereof and to
Citibank, N.A., as Agent
Entergy Corporation
Ladies and Gentlemen:
I have acted as counsel to Entergy Corporation, a Delaware
corporation (the Borrower ), in connection with the preparation,
execution and delivery of the Amended and Restated Credit
Agreement, dated as of ______________ ___, 1996, by and among the
Borrower, the Banks parties thereto and the other Lenders from
time to time parties thereto and Citibank, N.A., as Agent. This
opinion is furnished to you at the request of the Borrower
pursuant to 3.01(a)(v) of the Credit Agreement. Unless
otherwise defined herein or unless the context otherwise
requires, terms defined in the Credit Agreement are used herein
as therein defined.
In such capacity, I have examined:
(i) Counterparts of the Credit Agreement, executed by
the Borrower;
(ii) The Contract Notes, executed by the Borrower;
(iii) The form of the Auction Notes to be executed
and delivered by the Borrower in connection with
Auction Borrowings;
(iv) The Certificate of Incorporation of the Borrower
(the Charter );
(v) The Bylaws of the Borrower (the Bylaws );
(vi) A certificate of the Secretary of State of the
State of Delaware, dated __________, 1996,
attesting to the continued corporate existence
and good standing of the Borrower in that State;
(vii) A Certificate of the Secretary of State of
the State of Louisiana, dated __________, 1996,
attesting that the Borrower is a foreign
corporation duly qualified to conduct business in
that state;
(viii) A copy of the Order dated July 27, 1995, of
the Securities and Exchange Commission (File No.
70-8149) under the Public Utility Holding Company
Act of 1935 (the SEC Order ); and
(ix) The other documents furnished by the Borrower to
the Agent pursuant to Section 3.01(a) of the
Credit Agreement.
I have also examined such other corporate records of the
Borrower, certificates of public officials and of officers of the
Borrower, and agreements, instruments and other documents, as I
have deemed necessary as a basis for the opinions expressed
below.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, and
the conformity with the originals of all documents submitted to
me as copies. In making my examination of documents and
instruments executed or to be executed by persons other than the
Borrower, I have assumed that each such other person had the
requisite power and authority to enter into and perform fully its
obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof and
the due execution and delivery thereof by or on behalf of such
person of each such document and instrument. In the case of any
such person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it was
created, and is duly qualified and in good standing in each other
jurisdiction where the failure to be so qualified could
reasonably be expected to have a material effect upon its ability
to execute, deliver and/or perform its obligations under any such
document or instrument. I have further assumed that each
document, instrument, agreement, record and certificate reviewed
by me for purposes of rendering the opinions expressed below has
not been amended by any oral agreement, conduct or course of
dealing between the parties thereto.
As to questions of fact material to the opinions expressed
herein, I have relied upon certificates and representations of
officers of the Borrower (including but not limited to those
contained in the Credit Agreement and certificates delivered upon
the execution and delivery of the Credit Agreement) and of
appropriate public officials, without independent verification of
such matters except as otherwise described herein.
Whenever my opinions herein with respect to the existence
or absence of facts are stated to be to my knowledge or
awareness, it is intended to signify that no information has come
to my attention or the attention of other counsel working under
my direction in connection with the preparation of this opinion
letter that would give me or them actual knowledge of the
existence or absence of such facts. However, except to the
extent expressly set forth herein, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to my or
their knowledge of the existence or absence of such facts should
be assumed.
On the basis of the foregoing, having regard for such legal
consideration as I deem relevant, and subject to the other
limitations and qualifications contained in this letter, I am of
the opinion that:
(l) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business as a foreign
corporation in each jurisdiction in which the nature of the
business conducted or the property owned, operated or leased by
it requires such qualification.
(m) The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within the
Borrower s corporate powers, have been duly authorized by all
necessary corporate action and do not contravene (i) the Charter
or the Bylaws or (ii) law or (iii) any contractual or legal
restriction binding on or affecting the Borrower. The Credit
Agreement and the Contract Notes have been duly executed and
delivered on behalf of the Borrower. When completed in the form
thereof attached as Exhibit A-2 to the Credit Agreement, and
executed by an authorized officer of the Borrower and delivered
on behalf of the Borrower, each Auction Note will have been duly
executed and delivered by the Borrower.
(n) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement and the
Notes, except for the SEC Order, which has been obtained, is
final and in full force and effect, and is not the subject of any
appeal.
(o) Except as disclosed in the Borrower s Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, and in the
Borrower s Quarterly Report on Form 10-Q for the period ended
September 30, 1996, there is no pending or, to the best of my
knowledge, threatened action or proceeding affecting the Borrower
or any of its subsidiaries before any court, governmental agency
or arbitrator that reasonably could be expected to affect
materially and adversely the condition (financial or otherwise),
operations, business, properties or prospects of the Borrower or
its ability to perform its obligations under the Credit Agreement
or any Note, or that purports to affect the legality, validity,
binding effect or enforceability of the Credit Agreement or any
Note. To the best of my knowledge, after inquiry, there has been
no change in any matter disclosed in such filings that reasonably
could be expected to result in such a material adverse effect.
(p) The Borrower is no an investment company or a
company controlled by an investment company , within the
meaning of the Investment Company Act of 1940, as amended, or an
investment adviser within the meaning of the Investment Advisers
Act of 1940, as amended.
(q) The Credit Agreement and the Contract Notes
constitute, and the Auction Notes, when completed in the form
thereof attached as Exhibit A-2 to the Credit Agreement and
executed by an authorized officer of the Borrower and delivered
on behalf of the Borrower in accordance with the terms of the
Credit Agreement, will constitute, the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
My opinions above are subject to the following
qualifications:
(i) My opinions are subject, as to enforceability, to
(A) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting
creditors rights generally and (B) the
application of general principles of equity,
including but not limited to the right to have
specific performance of contract obligations,
regardless of whether considered in a proceeding
in equity or at law.
(ii) My opinion in paragraph 1 above, insofar as it
relates to the due incorporation, valid existence
and good standing of the Borrower under Delaware
law, is given exclusively in reliance upon a
certification of the Secretary of State of
Delaware, upon which I believe I am justified in
relying. A copy of such certification has been
provided to you.
(iii) My opinion set forth in paragraph 3 above as
to the obtaining of necessary governmental and
regulatory approvals is based solely upon a
review of those laws that, in my experience, are
normally applicable to the Borrower in connection
with transactions of the type contemplated by the
Credit Agreement.
(iv) My opinion in paragraph 6 above as to the
legality, validity, binding nature and
enforceability of the Credit Agreement and the
Notes is given in reliance upon a legal opinion
of even date herewith of Reid & Priest, LLP, New
York counsel to the Borrower, and is subject to
the assumptions, limitations and qualifications
contained therein. A copy of the legal opinion
of Reid & Priest, LLP, is being provided to you
contemporaneously herewith.
Notwithstanding the qualifications set forth above, I have no
actual knowledge of any matter within the scope of said
qualifications that would cause me to change the opinions set
forth in this letter.
I am licensed to practice law only in the States of
Louisiana and Texas and the Commonwealth of Virginia and, except
as otherwise provided herein, my role as counsel to the Company
is limited to matters involving the laws of the State of
Louisiana and the federal laws of the United States of America.
Except to the extent otherwise expressly set forth herein, and
except with respect to matters governed by the General
Corporation Law of Delaware, I render no opinion on the laws of
any other jurisdiction or any subdivision thereof, and have made
no independent investigation into any such laws except as
specifically provided herein.
My opinions are expressed as of the date hereof, and I do
not assume any obligation to update or supplement my opinions to
reflect any fact or circumstance that hereafter comes to my
attention, or any change in law that hereafter occurs.
This opinion letter is being provided exclusively to and
for the benefit of the addressees hereof. It is not to be
furnished to or relied upon by any other party for any other
purpose, without prior express written authorization from us,
except that (A) Reid & Priest may rely hereon in connection with
their opinion to you of even date herewith on behalf of the
Borrower as to matters of New York law, (B) King & Spalding
hereby is authorized to rely on this letter in the rendering of
their opinion to the Lenders dated as of the date hereof; and any
addressee of this letter may deliver a copy hereof to any person
that becomes a Lender under the Credit Agreement after the date
hereof, and such person may rely on this opinion as if it had
been addressed and delivered to it on the date hereof as an
original Bank that was a party to the Credit Agreement.
Very truly yours,
Laurence M. Hamric
Bank Addressees:
EXHIBIT E
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE AGENT
[Date]
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Agent
Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank,
N.A., individually and as Agent, in connection with the
preparation, execution and delivery of the Amended and Restated
Credit Agreement, dated as of , 1996
(the Credit Agreement ), among Entergy Corporation, the Banks
parties thereto and Citibank, N.A., as Agent. Terms defined in
the Credit Agreement are used herein as therein defined.
In this connection, we have examined the following
documents:
(r) a counterpart of the Credit Agreement, executed by the
parties thereto;
(s) the Contract Notes to the order of each Bank;
(t) the form of the Auction Notes, attached as Exhibit A-2
to the Credit Agreement, to be executed and delivered by
the Borrower in connection with any Auction Borrowing; and
(u) the other documents furnished to the Agent pursuant to
Section 3.01(a) of the Credit Agreement, including (without
limitation) the opinion (the Opinion ) of Laurence M.
Hamric, counsel to the Borrower.
In our examination of the documents referred to above, we
have assumed the authenticity of all such documents submitted to
us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that you have independently
evaluated, and are satisfied with, the creditworthiness of the
Borrower and the business terms reflected in the Credit
Agreement. We have relied, as to factual matters, on the
documents we have examined.
To the extent that our opinions expressed below involve
conclusions as to matters governed by law other than the law of
the State of New York, we have relied upon the Opinion and have
assumed without independent investigation the correctness of the
matters set forth therein, our opinions expressed below being
subject to the assumptions, qualifications and limitations set
forth in the Opinion.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the opinion that the
Credit Agreement and the Contract Notes are, and upon their
completion, execution and delivery in accordance with the terms
of the Credit Agreement, the Auction Notes will be, the legal,
valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
Our opinion is subject to the following qualifications:
(i) The enforceability of the Borrower s obligations under
the Credit Agreement and the Notes is subject to the effect of
any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar law affecting creditors
rights generally.
(ii) The enforceability of the Borrower s obligations under
the Credit Agreement and the Notes is subject to the effect of
general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law). Such principles of equity are of general
application, and, in applying such principles, a court, among
other things, might not allow a contracting party to exercise
remedies in respect of a default deemed immaterial, or might
decline to order an obligor to perform covenants.
(iii) We note further that, in addition to the application
of equitable principles described above, courts have imposed an
obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies,
and may also apply public policy considerations in limiting the
right of parties seeking to obtain indemnification under
circumstances where the conduct of such parties is determined to
have constituted negligence.
(iv) We express no opinion herein as to (A) Section 8.05 of
the Credit Agreement, (B) the enforceability of provisions
purporting to grant to a party conclusive rights of
determination, (C) the availability of specific performance or
other equitable remedies, (D) the enforceability of rights to
indemnity under federal or state securities laws or (E) the
enforceability of waivers by parties of their respective rights
and remedies under law.
(v) Our opinions expressed above are limited to the law of
the State of New York, and we do not express any opinion herein
concerning any other law.
The foregoing opinion is solely for your benefit and may
not be relied upon by any other person or entity, other than any
Person that may become a Lender under the Credit Agreement after
the date hereof.
Very truly yours,
Include if applicable.
Delete for Base Rate Advances
If the Assignee is organized under the laws of a
jurisdiction outside the United States.
This date should be no earlier than the date of
acceptance by the Agent.