UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
- - - - - - - - - - - - - - - - - - - - - x
:
In the Matter of :
:
System Energy Resources, Inc. :
Entergy Corporation :
Arkansas Power & Light Company :
Louisiana Power & Light Company : CERTIFICATE
Mississippi Power & Light Company : PURSUANT TO
New Orleans Public Service Inc. : RULE 24
:
Public Utility Holding Company :
Act of 1935 :
File No. 70-7946 :
:
- - - - - - - - - - - - - - - - - - - - - x
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that
certain of the transactions proposed by System Energy Resources,
Inc. ("System Energy"), Entergy Corporation ("Entergy"), Arkansas
Power & Light Company, Louisiana Power & Light Company,
Mississippi Power & Light Company and New Orleans Public Service
Inc. ("System operating companies") in the Application-
Declaration, as amended, in the above file ("Application-
Declaration") have been carried out in accordance with the terms
and conditions of, and for the purposes represented by, the
Application-Declaration and pursuant to the Order of the
Securities and Exchange Commission with respect thereto dated
April 26, 1994 (Holding Company Act Rel. No. 35-26035), as
follows:
On April 28, 1994, System Energy issued and sold to
Salomon Brothers Inc $60,000,000 principal amount of a new series
of System Energy's First Mortgage Bonds, 7 5/8% Series due 1999
("1999 Series"), pursuant to the Nineteenth Supplemental
Indenture, dated as of April 1, 1994, to System Energy's Mortgage
and Deed of Trust, dated as of June 15, 1977, as supplemented and
amended ("Mortgage"), and in accordance with the terms and
provisions specified in Post-Effective Amendments No. 5, 6 and 7
in this file. Concurrently, System Energy, Entergy and the
Trustees under the Mortgage entered into the Twenty-ninth
Supplementary Capital Funds Agreement and Assignment; and System
Energy, the System operating companies and the Trustees entered
into the Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement, each to secure the 1999 Series.
Attached hereto and incorporated by reference are:
A-2(g) - Nineteenth Supplemental Indenture, dated as
of April 1, 1994 relating to the 1999
Series Bonds.
B-1(d) - Underwriting Agreement, dated April 21,
1994.
B-2(f) - Twenty-ninth Assignment of Availability
Agreement, Consent and Agreement, dated as
of April 1, 1994, relating to the 1999
Series Bonds.
B-3(f) - Twenty-ninth Supplementary Capital Funds
Agreement and Assignment, dated as of
April 1, 1994, relating to the 1999 Series
Bonds.
C-5 - Prospectus Supplement relating to the 1999
Series Bonds (filed in Registration No. 33-
47662 and incorporated herein by
reference).
IN WITNESS WHEREOF, the undersigned companies have
caused this certificate to be executed this 6th day of May, 1994.
System Energy Resources, Inc.
Arkansas Power & Light Company
Louisiana Power & Light Company
Mississippi Power & Light Company
New Orleans Public Service Inc.
By: /s/ Glenn E. Harder
Glenn E. Harder
Vice President-Financial
Strategies and Treasurer
Entergy Corporation
By: /s/ Glenn E.Harder
Glenn E. Harder
Treasurer
Exhibit A-2(g)
__________________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
UNITED STATES TRUST COMPANY OF NEW YORK
AND
GERARD F. GANEY
(Successor to Malcolm J. Hood),
Trustees.
___________________________________
Nineteenth Supplemental Indenture
Dated as of April 1, 1994
TO
MORTGAGE AND DEED OF TRUST
Dated as of June 15, 1977.
___________________________________
First Mortgage Bonds, 7 5/8% Series due 1999
__________________________________________________
Prepared by:
Reid & Priest
40 West 57th Street
New York, New York 10019-4097
(212) 603-2000
<PAGE>
NINETEENTH SUPPLEMENTAL INDENTURE, dated as of the 1st day of April,
1994, made and entered into by and between SYSTEM ENERGY RESOURCES, INC., a
corporation of the State of Arkansas, whose post office address is Echelon
One, 1340 Echelon Parkway, Jackson, Mississippi 39213 (hereinafter
sometimes called the "Company"), and UNITED STATES TRUST COMPANY OF NEW
YORK, a corporation of the State of New York, whose Corporate Trust
Department post office address is 114 West 47th Street, New York, New York
10036 (hereinafter sometimes called the "Corporate Trustee"), and GERARD F.
GANEY (successor to Malcolm J. Hood) whose post office address is 114 West
47th Street, New York, New York 10036 (hereinafter sometimes called the
"Co-Trustee"), as Trustees under the Mortgage and Deed of Trust, dated as
of June 15, 1977 (herein sometimes called the "Original Indenture"),
executed and delivered by the Company (the Corporate Trustee and the
Co-Trustee being hereinafter together sometimes called the "Trustees" or
individually sometimes called a "Trustee");
WHEREAS, the Original Indenture (herein with all indentures
supplemental thereto called the "Indenture") provides for the issuance of
bonds in one or more series (hereinafter called the "bonds"); and
WHEREAS, the Indenture provides that the Company and the Trustees may
enter into indentures supplemental thereto for the purpose, among others,
of setting forth the terms and provisions of each series of bonds from time
to time issued; and
WHEREAS, the Company executed and delivered to the Trustees, as
supplements to the Original Indenture, the following supplemental
indentures:
Designation Dated as of
First Supplemental Indenture June 15, 1977
Second Supplemental Indenture January 1, 1980
Third Supplemental Indenture June 15, 1981
Fourth Supplemental Indenture June 1, 1984
Fifth Supplemental Indenture December 1, 1984
Sixth Supplemental Indenture May 1, 1985
Seventh Supplemental Indenture June 15, 1985
Eighth Supplemental Indenture May 1, 1986
Ninth Supplemental Indenture May 1, 1986
Tenth Supplemental Indenture September 1, 1986
Eleventh Supplemental Indenture September 1, 1986
Twelfth Supplemental Indenture September 1, 1986
Thirteenth Supplemental Indenture November 15, 1987
Fourteenth Supplemental Indenture December 1, 1987
Fifteenth Supplemental Indenture July 1, 1992
Sixteenth Supplemental Indenture October 1, 1992
Seventeenth Supplemental Indenture October 1, 1992
Eighteenth Supplemental Indenture April 1, 1993
which supplemental indentures (hereinafter called the "First Supplemental
Indenture", "Second Supplemental Indenture", "Third Supplemental
Indenture", "Fourth Supplemental Indenture", "Fifth Supplemental
Indenture", "Sixth Supplemental Indenture", "Seventh Supplemental
Indenture", "Eighth Supplemental Indenture", "Ninth Supplemental
Indenture", "Tenth Supplemental Indenture", "Eleventh Supplemental
Indenture", "Twelfth Supplemental Indenture", "Thirteenth Supplemental
Indenture", "Fourteenth Supplemental Indenture", "Fifteenth Supplemental
Indenture", "Sixteenth Supplemental Indenture", "Seventeenth Supplemental
Indenture" and "Eighteenth Supplemental Indenture", respectively) were or
are to be filed and recorded in the real estate records of the office of
the Chancery Clerk of Claiborne County in the State of Mississippi, filed
in the Uniform Commercial Code records of the offices of the Chancery
Clerks of Claiborne County, Warren County and Hinds County (First Judicial
District) in the State of Mississippi, and filed with the Secretary of
State of the State of Mississippi; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Indenture, the following series of First Mortgage Bonds:
Principal Amount
Outstanding at the Date
Principal Amount of the Initial Issue
Series Issued of the Seventeenth Series
9.25% Series due 1989 $400,000,000 None
12.50% Series due 2000 $ 98,500,000 None
16% Series due 2000 $300,000,000 None
15 3/8% Series due 2000 $100,000,000 None
Pollution Control Series A $ 47,208,334 $ 47,208,334
Pollution Control Series B $ 95,643,750 $ 95,643,750
11% Series due 2000 $300,000,000 $ 60,000,000
9 7/8% Series due 1991 $300,000,000 None
10 1/2% Series due 1996 $250,000,000 $250,000,000
11 3/8% Series due 2016 $200,000,000 $ 90,319,000
14% Series due 1994 $200,000,000 $200,000,000
14.34% Series due 1992 $100,000,000 None
8.40% Series due 2002 $ 45,000,000 None
6.12% Series due 1995 $105,000,000 $105,000,000
8.25% Series due 2002 $ 70,000,000 $ 70,000,000
6% Series due 1998 $ 60,000,000 $ 60,000,000
which bonds are also sometimes called bonds of the First through Sixteenth
Series; and
WHEREAS, the Company has determined to create a new series of bonds,
and all things necessary to make this Supplemental Indenture a valid,
binding and legal instrument supplemental to the Indenture have been
performed and the issuance of said series of bonds, subject to the terms of
the Indenture, has been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: that in order
to set forth the terms and provisions of said series of bonds and in
consideration of the premises and of the purchase and acceptance of said
bonds by the holders thereof, and in consideration of the sum of One Dollar
by the Trustees to the Company paid, receipt whereof is hereby
acknowledged, the Company hereby agrees and provides, for the equal and
proportionate benefit of the respective holders from time to time of such
bonds, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION.
SECTION 1.01. Terms from the Indenture. The terms used in this
Supplemental Indenture which are defined in the Original Indenture, unless
otherwise specified herein, are used herein with the same meanings as in
the Original Indenture. None of the definitions or rules of construction
contained in the First through Eighteenth Supplemental Indentures shall
apply or be used in this Supplemental Indenture (except to the extent that
such definitions or rules of construction are repeated verbatim herein).
SECTION 1.02. Definitions of New Terms. The following terms shall have
the following meanings in this Supplemental Indenture (regardless of any
definition of any such terms in the First through Eighteenth Supplemental
Indentures):
Abandonment shall mean (i) the good faith decision by the Company to
abandon any material portion of the Grand Gulf Project as evidenced by a
Resolution of the Board of Directors of the Company followed by a cessation
of all operations (other than preservative maintenance) of such material
portion for a period of ninety (90) days, certified to in an Officers'
Certificate or (ii) the destruction of all or substantially all of the
Grand Gulf Project, certified to in an Officers' Certificate.
AP&L shall mean Arkansas Power & Light Company, an Arkansas
corporation.
Availability Agreement shall mean the Availability Agreement, dated as
of June 21, 1974, as amended from time to time, among the Company, AP&L,
LP&L, MP&L and NOPSI.
Basic Agreements shall mean the Availability Agreement, the Capital
Funds Agreement, the Sales Agreement, the System Agreement, the Twenty-
ninth Supplementary Capital Funds Agreement and the Twenty-ninth Assignment
of Availability Agreement.
Capital Funds Agreement shall mean the Capital Funds Agreement, dated
as of June 21, 1974, as it may be amended from time to time, between
Entergy and the Company.
Defeasance Trustee shall mean the Corporate Trustee if it, at its
option, elects to serve as a Defeasance Trustee or any other bank or trust
company having its principal office and place of business in the Borough of
Manhattan, The City of New York, and which shall at all times (after the
deposit of moneys or obligations pursuant to Section 9.01 hereof) be a
corporation organized and doing business under the laws of the United
States or of any State or Territory or of the District of Columbia, with a
combined capital and surplus of at least One Hundred Million Dollars
($100,000,000), and authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority.
Eighth Series shall have the meaning set forth in Section 2.01 of the
Tenth Supplemental Indenture.
Eleventh Series shall have the meaning set forth in Section 2.01 of
the Thirteenth Supplemental Indenture.
Entergy shall mean Entergy Corporation, a Delaware corporation
(successor to Entergy Corporation, a Florida corporation).
Fifteenth Series shall have the meaning set forth in Section 2.01 of
the Seventeenth Supplemental Indenture.
Fifth Series shall have the meaning set forth in Section 2.01 of the
Seventh Supplemental Indenture.
First Series shall have the meaning set forth in Section 2.01 of the
First Supplemental Indenture.
First Unit of the Grand Gulf Project shall mean unit 1 of the Grand
Gulf Project, which was placed in commercial operation on July 1, 1985.
Fourteenth Series shall have the meaning set forth in Section 2.01 of
the Sixteenth Supplemental Indenture.
Fourth Series shall have the meaning set forth in Section 2.01 of the
Sixth Supplemental Indenture.
General Redemption Prices shall have the meaning set forth in Section
2.01 (a) hereof.
LP&L shall mean Louisiana Power & Light Company, a Louisiana
corporation.
MP&L shall mean Mississippi Power & Light Company, a Mississippi
corporation.
Ninth Series shall have the meaning set forth in Section 2.01 of the
Eleventh Supplemental Indenture.
NOPSI shall mean New Orleans Public Service Inc., a Louisiana
corporation.
Sales Agreement shall mean the Sales Agreement, dated as of June 21,
1974, between MP&L and the Company.
Second Series shall have the meaning set forth in Section 2.01 of the
Second Supplemental Indenture.
Second Unit of the Grand Gulf Project shall mean unit 2 of the Grand
Gulf Project, construction of which was suspended in 1985 and abandoned in
1989 when the unit was canceled.
Services shall mean Entergy Services, Inc., a Delaware corporation.
Seventh Series shall have the meaning set forth in Section 2.01 of the
Ninth Supplemental Indenture.
Sixteenth Series shall have the meaning set forth in Section 2.01 of
the Eighteenth Supplemental Indenture.
Sixth Series shall have the meaning set forth in Section 2.01 of the
Eighth Supplemental Indenture.
Special Industrial Development Revenue Bonds shall mean indebtedness
represented by securities, the interest payments to the holders of which
are exempt, in the opinion of bond counsel for any such securities, from
federal income taxation under Internal Revenue Code Section 103(c)(4) (or a
similar provision of such Code hereinafter enacted), issued by any
governmental authority to provide funds for pollution control facilities
for the Grand Gulf Project, the principal of and interest on which are to
be payable solely from funds provided by the Company to such governmental
authority by lease payments, conditional sale payments, or payments
pursuant to the provisions of contractual obligations (including bonds) or
otherwise.
Special Redemption Price shall have the meaning set forth in Section
2.01(b) hereof.
System Agreement shall mean the Agreement, dated April 23, 1982 and
effective January 1, 1983, as amended, and as it may be amended from time
to time, among AP&L, LP&L, MP&L and NOPSI, relating to the sharing of
generating capacity and other power resources.
System Companies shall mean AP&L, LP&L, MP&L, NOPSI and any other
operating subsidiary company of Entergy (as such term is defined in Section
2(a)(8) of the Public Utility Holding Company Act of 1935 ) other than the
Company which shall become a party to the System Agreement.
Tenth Series shall have the meaning set forth in Section 2.01 of the
Twelfth Supplemental Indenture.
Third Series shall have the meaning set forth in Section 2.01 of the
Fifth Supplemental Indenture.
Thirteenth Series shall have the meaning set forth in Section 2.01 of
the Fifteenth Supplemental Indenture.
Twelfth Series shall have the meaning set forth in Section 2.01 of the
Fourteenth Supplemental Indenture.
Twenty-ninth Assignment of Availability Agreement shall mean the
Twenty-ninth Assignment of Availability Agreement, Consent and Agreement,
dated as of April 1, 1994, among the Company, AP&L, LP&L, MP&L, NOPSI and
the Trustees.
Twenty-ninth Supplementary Capital Funds Agreement shall mean the
Twenty-ninth Supplementary Capital Funds Agreement and Assignment, dated as
of April 1, 1994, between Entergy, the Company and the Trustees.
SECTION 1.03. Rules of Construction. All references to any agreement
refer to such agreement as modified, varied or amended from time to time by
the parties thereto (including any permitted successors or assigns) in
accordance with its terms.
ARTICLE II
THE SEVENTEENTH SERIES.
SECTION 2.01. Bonds of the Seventeenth Series. There shall be a series of
bonds issued pursuant to the Indenture designated "7 5/8% Series due 1999"
(herein sometimes referred to as the "Seventeenth Series"). Each such bond
shall also bear the descriptive title First Mortgage Bond, and the form
thereof shall be substantially as set forth in Annex A hereto. Bonds of
the Seventeenth Series shall mature on April 1, 1999, and shall be issued
as fully registered bonds in denominations of $1,000 and, at the option of
the Company, in any multiple or multiples of $1,000 (the exercise of such
option to be evidenced by the execution and delivery thereof); they shall
bear interest at the rate of 7 5/8% per annum, until the principal of any
such bond shall have become due and payable, and shall thereafter bear
interest on any overdue principal, on any overdue premium and (to the
extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the rate of 7 5/8% per annum, the
first interest payment to be made October 1, 1994, for the period from
April 1, 1994 to October 1, 1994, with subsequent interest payments to be
made semiannually on April 1 and October 1 of each year; the principal of
and interest on each said bond to be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for public and private debts.
(a) The bonds of the Seventeenth Series shall not be redeemable at
the option of the Company.
(b) The bonds of the Seventeenth Series shall be redeemable, in whole
or in part, at any time prior to maturity, upon notice mailed to each
registered holder at his last address appearing on the registry books not
less than thirty (30) days nor more than sixty (60) days prior to the date
fixed for redemption pursuant to the provisions of Section 4.01 or Article
V hereof or by the application of cash delivered to or deposited with or
held by the Corporate Trustee pursuant to the provisions of Sections 8.05,
11.03, 11.04, 11.05 and 11.06 of the Original Indenture, at a Special
Redemption Price equal to the principal amount of the bonds to be redeemed,
together with accrued interest to the date fixed for redemption.
(c) In case of the redemption of only a part of the bonds of the
Seventeenth Series, the particular bonds to be redeemed shall be selected
by the Corporate Trustee from the Outstanding bonds of such series which
have not previously been called for redemption, by such method as the
Corporate Trustee shall deem fair and appropriate.
(d) At the option of the registered owner, any bonds of the
Seventeenth Series, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
shall be exchangeable for a like aggregate principal amount of bonds of the
same series of other authorized denominations.
Bonds of the Seventeenth Series shall be transferable, upon the
surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the registrar duly executed by the registered
owner or by his duly authorized attorney, at the office or agency of the
Company in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Seventeenth Series, the
Company may make a charge therefor sufficient to reimburse it for any tax
or taxes or other governmental charge, as provided in the Indenture, but
the Company hereby waives any right to make a charge in addition thereto
for any exchange or transfer of bonds of the Seventeenth Series.
ARTICLE III
ADDITIONAL BOND PROVISIONS.
SECTION 3.01. Limit on Aggregate Amount. Bonds of the Seventeenth
Series shall be limited to Sixty Million Dollars ($60,000,000) in aggregate
principal amount at any one time Outstanding, except as provided in Section
2.09 of the Original Indenture.
SECTION 3.02. Dating of Bonds and Interest Payments. Bonds of the
Seventeenth Series shall be dated as provided in Section 2.03 of the
Original Indenture and bear interest from April 1, 1994, provided that if
any bond of the Seventeenth Series shall be authenticated and delivered
upon a transfer of, or in exchange for or in lieu of, any other bond or
bonds of the Seventeenth Series, it shall be dated so that such bond shall
bear interest from the last preceding date to which interest shall have
been paid on the bond or bonds in respect of which such bond shall have
been delivered.
Notwithstanding the foregoing, the person in whose name any bond of
the Seventeenth Series is registered at the close of business on any record
date for the Seventeenth Series with respect to any interest payment shall
be entitled to receive the interest payable on the interest payment date
(except that in case of any redemption of bonds as provided for herein on a
date subsequent to the record date for the Seventeenth Series and prior to
such interest payment date, interest on such redeemed bonds shall be
payable only to the date fixed for redemption thereof and only against
surrender of such bonds for redemption in accordance with the notice of
such redemption) notwithstanding the cancellation of such bond upon any
transfer or exchange thereof subsequent to the record date for the
Seventeenth Series and prior to such interest payment date, except if, and
to the extent that, the Company shall default in the payment of the
interest due on such interest payment date, in which case such defaulted
interest shall be paid to the persons in whose names Outstanding bonds of
the Seventeenth Series are registered on the day immediately preceding the
date of payment of such defaulted interest. Any bond of the Seventeenth
Series issued upon any transfer or exchange subsequent to the record date
for the Seventeenth Series for any interest payment date and prior to such
interest payment date shall bear interest from such interest payment date.
The term "record date for the Seventeenth Series" as used with respect to
any interest payment date shall mean March 15 for interest payable April 1
and shall mean September 15 for interest payable October 1.
ARTICLE IV
ADDITIONAL COVENANTS.
SECTION 4.01. Disposition of Property. Notwithstanding the provisions
of Sections 11.01 through 11.07, inclusive, of the Original Indenture, the
Company covenants that if it sells, assigns, transfers or otherwise
disposes of all or any part of the Mortgaged and Pledged Property and the
Company fails to file with the Corporate Trustee within thirty (30) days
thereafter an Officers' Certificate to the effect that such disposition
would not materially impair the continuing electrical generation operations
of the First Unit of the Grand Gulf Project allocable to the Company, the
Company will give prompt notice to the Trustee and to the registered
holders of bonds of the Seventeenth Series, and within sixty (60) days of
such disposition of the Mortgaged and Pledged Property it will redeem all
of the bonds of the Seventeenth Series then Outstanding at the Special
Redemption Price set forth in Section 2.01(b) hereof; provided, however,
that no such Officers' Certificate will be required to be filed if the
sale, assignment, transfer or other disposition of such Mortgaged and
Pledged Property does not adversely affect such continuing electrical
generation operations. Notwithstanding the above, the Company is not
required to redeem bonds of the Seventeenth Series as a result of the
following transactions so long as such transactions are in compliance with
Sections 11.01 through 11.07, inclusive, of the Original Indenture:
(a) transactions contemplated by and permitted under the provisions of
Article XVI of the Original Indenture (subject to the provisions of Section
4.04 of the Fifth Supplemental Indenture);
(b) sales, assignments, transfers or other disposition of an undivided
interest in the Grand Gulf Project, if such transactions are for the
purpose of complying with an order or orders of a governmental body having
jurisdiction in the premises or for the purpose of complying with the
conditions of any construction permits issued to the Company by the Nuclear
Regulatory Commission (or any successor); provided, however, that (i) any
cash proceeds paid to and received by the Company (other than in connection
with a transaction involving assumption of construction costs) shall be
deposited with the Corporate Trustee, to be held by it under the conditions
set forth in Section 11.05 of the Original Indenture, (ii) payment for any
such transaction shall be in cash or its equivalent paid to the Company, or
by assumption of construction costs and (iii) any co-owner or co-owners of
the Grand Gulf Project shall have waived any right it or they might have
had to require any partition or division of the Grand Gulf Project during
the useful life of the Project and shall have entered into an agreement
with the Company for the joint operation of the Grand Gulf Project
specifying, among other things, that it or they will share responsibility
for the operating costs of the Grand Gulf Project and that the Company
shall remain responsible for the operation of the Grand Gulf Project; and
provided further that the conditions specified in (iii) above shall be
deemed modified by any contrary requirements of the Nuclear Regulatory
Commission (or any successor agency). Upon any such operating agreement
becoming fully effective and binding, the rights of the Company thereunder
shall be immediately pledged as security under the Indenture, and an
Opinion of Counsel shall be delivered to the Trustees that it is duly
authorized, valid, binding and enforceable and has been effectively
pledged. The rights of the Company under any such operating agreement shall
remain pledged as security under the Indenture only for so long as bonds of
the Seventeenth Series shall remain Outstanding. The Company shall be
entitled to enter into modifications, amendments and supplements to and
replacements of any agreement embodying the obligations of the Company set
forth in this Section 4.01 (b) without the consent of the holders of the
Seventeenth Series bonds or the Trustees; provided, however, that, prior to
the execution and delivery of any such modification, amendment, supplement
or replacement, the Company shall furnish to the Corporate Trustee an
Opinion of Counsel to the effect that the execution, delivery and
performance by the Company of such modification, amendment, supplement or
replacement will not adversely affect the rights of the holders of the
Seventeenth Series bonds set forth in this Section 4.01(b);
(c) leases (including without limitation any sale and leaseback by the
Company or any Subsidiary of the Company) of Nuclear Fuel;
(d) leases (including without limitation any sale and leaseback by the
Company or such Subsidiary) incurred in connection with Special Industrial
Development Revenue Bonds; and
(e) leases (including without limitation any sale and leaseback by the
Company or such Subsidiary) of construction equipment to be used during the
construction phase of the Grand Gulf Project, office space and
transportation, data processing and/or communications equipment.
Nothing in this Section shall limit releases of property in the
ordinary course of business otherwise permitted by this Supplemental
Indenture and the provisions of Sections 11.01 through 11.07 inclusive, of
the Original Indenture, particularly retirements for maintenance, repairs
and reconstruction purposes.
SECTION 4.02. Security Interests in Certain Agreements. The Company
covenants that it will not transfer, pledge, assign or grant a security
interest in any of its right, title and interest in, to or under (including
its right to any moneys due or to become due under) any of the Basic
Agreements, except to the extent expressly permitted pursuant to or
recognized by the terms of the Twenty-ninth Supplementary Capital Funds
Agreement and the Twenty-ninth Assignment of Availability Agreement.
SECTION 4.03. Capital Funds and Availability Agreements. The Company
will (i) duly perform all obligations to be performed by it under the
Capital Funds Agreement, the Twenty-ninth Supplementary Capital Funds
Agreement, the Availability Agreement and the Twenty-ninth Assignment of
Availability Agreement, (ii) promptly take any and all action (including,
without limitation, obtaining all orders, consents, permits, licenses and
approvals, and making all registrations, declarations and filings) as may
be necessary to enforce its rights under the Capital Funds Agreement, the
Twenty-ninth Supplementary Capital Funds Agreement, the Availability
Agreement or the Twenty-ninth Assignment of Availability Agreement and to
enforce or secure the performance by the other parties thereto of their
respective obligations thereunder, and (iii) use its best efforts to obtain
all orders, consents, permits, licenses and approvals, and make all
registrations, declarations and filings, necessary to keep the Capital
Funds Agreement, the Twenty-ninth Supplementary Capital Funds Agreement,
the Availability Agreement and the Twenty-ninth Assignment of Availability
Agreement in full force and effect. In the event of any material
nonperformance by any party under the Capital Funds Agreement, the
Twenty-ninth Supplementary Capital Funds Agreement, the Availability
Agreement or the Twenty-ninth Assignment of Availability Agreement, the
Company agrees that it will (i) duly perform all obligations to be
performed by it under any other agreement for the sale of capacity and/or
energy from the Grand Gulf Project, (ii) promptly take any and all action
(including, without limitation, obtaining all orders, consents, permits,
licenses and approvals, and making all registrations, declarations and
filings) as may be necessary to enforce its rights under any other
agreement for the sale of capacity and/or energy from the Grand Gulf
Project and to enforce or secure the performance by the other parties
thereto of their respective obligations thereunder, and (iii) use its best
efforts to obtain all orders, consents, permits, licenses and approvals,
and make all registrations, declarations and filings necessary to maintain
any other agreement for the sale of capacity and/or energy from the Grand
Gulf Project in full force and effect.
ARTICLE V
PROVISIONS FOR RETIREMENT OF BONDS.
SECTION 5.01. Redemption Upon Condemnation or Abandonment. If there
should be a condemnation or Abandonment of all or substantially all of the
Grand Gulf Project, the Company covenants that it will give prompt notice
to the Trustees and to the registered holders of bonds of the Seventeenth
Series and that within sixty (60) days after a final order of such
condemnation or within sixty (60) days after the Abandonment, it will
redeem all of the bonds of the Seventeenth Series then Outstanding at the
Special Redemption Price.
ARTICLE VI
ADDITIONAL DEFAULTS.
SECTION 6.01. Additional Defaults so long as Seventeenth Series Bonds
Outstanding. The following events shall be additional Defaults so long as
the Seventeenth Series bonds are Outstanding:
(1) Entergy shall fail to supply or to cause to be supplied to the
Company or the Trustees, as the case may be, any amount of capital, or any
additional amount of capital, which Entergy shall be obligated to supply to
the Company pursuant to the Twenty-ninth Supplementary Capital Funds
Agreement within thirty (30) days after the date when Entergy shall be
obligated to supply such capital, or to cause such capital to be supplied,
to the Company;
(2) Default by Entergy or the Company in the observance or performance
of any other covenant or agreement contained in the Twenty-ninth
Supplementary Capital Funds Agreement, and the continuance of the same
unremedied for a period of thirty (30) days after written notice thereof,
stating it is a notice of Default hereunder, shall have been given to the
Company by the Corporate Trustee or the holders of at least fifteen per
centum (15%) in principal amount of the Seventeenth Series bonds then
Outstanding;
(3) Any System Company shall fail to pay or advance to the Company or
the Trustees, as the case may be, any amount which such System Company
shall be obligated to pay or advance to the Company pursuant to the
Availability Agreement and the Twenty-ninth Assignment of Availability
Agreement or the System Agreement (or would be obligated to pay or advance
under such agreements but for (i) the provisions of Section 7 of the
Availability Agreement or the equivalent provision of any agreement
substituted therefor, (ii) the bankruptcy or reorganization of any System
Company or the pendency of proceedings therefor, (iii) the condemnation or
seizure of control of all or substantially all of the properties of any
System Company by a governmental authority or (iv) the occurrence of an
event described in clause (i) or (ii) of paragraph (5) hereof) within
thirty (30) days after the date when such System Company shall be obligated
to pay or advance such amount (or would be obligated to pay but for the
events described in (i) through (iv) of this subsection) or any of the
parties thereto shall default in the performance of its obligations
contained in the first sentence of Section 4 of the Availability Agreement
(it being understood that if the entire amount of such obligatory payment
is deposited with the Corporate Trustee before the expiration of such
period of thirty (30) days, such Default shall no longer be considered to
be continuing under this Supplemental Indenture);
(4) Default by any System Company or the Company in the observance or
performance of any other covenant or agreement contained in the
Availability Agreement or the Twenty-ninth Assignment of Availability
Agreement, and the continuance of the same unremedied for a period of
thirty (30) days after written notice thereof, stating it is a notice of
Default hereunder, shall have been given to the Company by the Corporate
Trustee or the holders of at least fifteen per centum (15%) in principal
amount of the Seventeenth Series bonds then Outstanding;
(5) The Twenty-ninth Supplementary Capital Funds Agreement, the
Availability Agreement or the Twenty-ninth Assignment of Availability
Agreement shall, pursuant to a final binding judgment or order as to which
no further appeals are available, at any time for any reason (i) cease to
be in full force and effect or (ii) shall be declared to be null and void,
or the validity or enforceability thereof shall be contested by any System
Company, the Company or Entergy or any System Company, the Company or
Entergy shall deny that it has any or further liability thereunder; unless
(A) within forty-five (45) days after the occurrence of any such event any
System Company, the Company or Entergy, as the case may be, shall have
entered into a substitute Agreement and furnished the Corporate Trustee an
Officers' Certificate, confirmed by an opinion of an investment banking
firm appointed by the Board of Directors of the Company and approved by the
Corporate Trustee in the exercise of reasonable care, to the effect that in
the opinion of the signers, the substitute Agreement offers (subject to
obtaining necessary regulatory approval, if any) equivalent security to the
bonds of the Seventeenth Series, and (B) within one hundred and eighty
(180) days after the occurrence of such event any System Company, the
Company or Entergy, as the case may be, shall have obtained all necessary
regulatory approvals for the performance of such substitute agreement and
shall have provided to the Corporate Trustee an Opinion of Counsel to such
effect and to the effect that such substitute agreement is valid, binding
and enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors'
rights;
(6) Entergy shall in any manner sell, assign, transfer, dispose of,
mortgage, pledge, encumber or otherwise create a security interest in any
shares of common stock of the Company or any of AP&L, LP&L, MP&L or NOPSI,
provided, however, that nothing herein contained shall prohibit (i) the
issuance of directors' qualifying shares or the satisfaction of similar
legal requirements or (ii) the disposition of the gas properties directly
or indirectly owned by AP&L or NOPSI or (iii) any merger or consolidation
permitted under Section 4.04 of the Fifth Supplemental Indenture or (iv)
any covenant by Entergy substantially to the effect that it will not sell,
assign, transfer, dispose of, mortgage, pledge, encumber or otherwise
create a security interest in any shares of common stock of the Company or
any of the System Companies; or
(7) The expiration of a period of ninety (90) days after the mailing
by the Corporate Trustee to the Company of a written demand (citing this
provision), or by the holders of fifteen per centum (15%) in principal
amount of the bonds at the time Outstanding hereunder (determined as
provided in Section 13.07 of the Original Indenture) to the Company and to
the Corporate Trustee of a written demand, that the Company perform a
specified covenant or agreement contained in the Original Indenture or
herein, which specified covenant or agreement the Company shall have failed
to perform prior to such mailing, unless the Company during such period
shall have performed such specified covenant or agreement. The Corporate
Trustee may, and, if requested in writing to do so by the holders of a
majority in principal amount of the bonds then Outstanding, shall, make
such demand.
ARTICLE VII
ADDITIONAL SECURITY FOR SEVENTEENTH SERIES BONDS.
SECTION 7.01. Additional Security. In addition to the security
provided under the Indenture, the Twenty-ninth Assignment of Availability
Agreement and the Twenty-ninth Supplementary Capital Funds Agreement and
all proceeds therefrom, shall be for the sole and exclusive benefit of the
holders of the Seventeenth Series bonds then Outstanding, and any
enforcement thereof or remedy related thereto shall be for the benefit of
and subject to the direction and control of such holders in the same manner
as any remedy or means of enforcement relating to the Mortgaged and Pledged
Property are within the direction and control of the holders of the
Seventeenth Series bonds, and any proceeds therefrom shall be applied for
the exclusive benefit of the holders of the Seventeenth Series bonds in the
same manner as set forth in Section 13.12 (Second) of the Original
Indenture.
ARTICLE VIII
DEFEASANCE.
SECTION 8.01. Defeasance. In addition to the provisions of Section
18.01 of the Original Indenture, the Seventeenth Series bonds and interest
obligations for the payment of which and bonds of the Seventeenth Series
for the redemption of which either (i) moneys in the necessary amount or
(ii) obligations of the United States of America which shall not contain
provisions permitting the redemption thereof at the option of the issuer,
the principal of and the interest on which when due, and without any regard
to reinvestment thereof, will, in the opinion of an independent accountant,
provide moneys which, together with the moneys, if any, deposited with or
held by the Defeasance Trustee, shall be sufficient to pay when due the
principal of, premium, if any, and interest due and to become due on said
Seventeenth Series, or portions thereof on the redemption date or maturity
date thereof, as the case may be, shall have been deposited with the
Defeasance Trustee, with irrevocable direction so to apply the same,
subject to the provisions of Section 20.03 of the Original Indenture (with
or without any additional right given to the holders to surrender their
bonds or obtain therefrom payment therefor prior to the redemption date)
shall for all purposes under the Indenture including satisfying the Lien of
the Indenture be deemed to have been paid; provided that in case of
redemption the notice requisite to the validity of such redemption shall
have been given or arrangements shall have been made insuring to the
satisfaction of the Corporate Trustee that the same will be given.
ARTICLE IX
MISCELLANEOUS PROVISIONS.
SECTION 9.01. Record Date. The holders of the Seventeenth Series
bonds shall be deemed to have consented and agreed that the Company may,
but shall not be obligated to, fix a record date for the purpose of
determining the holders of the Seventeenth Series bonds entitled to
consent, if any such consent is required, to any amendment or supplement to
the Indenture or the waiver of any provision thereof or any act to be
performed thereunder. If a record date is fixed, those persons who were
holders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not such
persons continue to be holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
SECTION 9.02. Titles. The titles of the several Articles and Sections
of this Supplemental Indenture and the table of contents shall not be
deemed to be any part thereof.
SECTION 9.03. Counterparts. This Supplemental Indenture shall be
executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
SECTION 9.04. Waivers and Amendments. Any provision of this
Supplemental Indenture may be waived or amended with the written consent
(in any number of instruments of similar tenor executed by the holders of
the Seventeenth Series bonds or by their attorneys appointed in writing) of
the holders of a majority or more in aggregate principal amount of the
Seventeenth Series bonds then Outstanding, and no consent for any such
waiver or amendment shall be required by holders of bonds other than the
Seventeenth Series bonds; provided, however, that without the consent of
the holder of a Seventeenth Series bond, no such waiver or amendment shall
(1) impair or affect the right of such holder to receive payment of the
principal of (and premium, if any) and interest (at the rates stipulated
therein) on such bond, on or after the respective due dates expressed in
such bond, or to institute suit for the enforcement of any such payment on
or after such respective dates, or (2) permit the creation of any lien
ranking prior to, or on a parity with, the Lien of the Indenture with
respect to any of the Mortgaged and Pledged Property, or (3) permit the
deprivation of any non-assenting Seventeenth Series bondholder of a lien
upon the Mortgaged and Pledged Property for the security of his bonds, or
(4) permit the reduction of the percentage required by the provisions of
this Section for the taking of any action under this Section with respect
to any Seventeenth Series bonds then Outstanding.
SECTION 9.05. Preconsent to Termination of Availability Agreement,
Twenty-ninth Assignment of Availability Agreement, Capital Funds Agreement
and Twenty-ninth Supplementary Capital Funds Agreement. The Company
reserves the right to terminate the Availability Agreement, the
Twenty-ninth Assignment of Availability Agreement, the Capital Funds
Agreement and the Twenty-ninth Supplementary Capital Funds Agreement, and
each holder of the bonds of the Seventeenth Series hereby consents to such
termination without any other further action by any holder of the bonds of
the Seventeenth Series, upon delivery to the Corporate Trustee of an
Officers' Certificate stating the following:
(a)(i) the Company's First Mortgage Bonds have been rated A3, A-, or
A- or better (or the equivalent thereof), by each of Moody's, Standard &
Poor's, and Duff & Phelps, respectively, or their successors, for at least
the 6 consecutive months preceding the date of such Officers' Certificate;
and
(ii) The Company has obtained written confirmation from each of
Moody's, Standard & Poor's, and Duff & Phelps, or their successors, stating
that as of the date of such Officers' Certificate and taking into account
the concurrent termination of the Availability Agreement, the Twenty-ninth
Assignment of Availability Agreement, the Capital Funds Agreement and the
Twenty-ninth Supplementary Capital Funds Agreement that the ratings of the
Company's First Mortgage Bonds rated by such agency is not less than A3,
A-, or A- (or the equivalent thereof), respectively, but written
confirmation shall not be required from any such rating agency (or any
successor) which at the date of such Officers' Certificate is either no
longer in business or has unilaterally determined not to rate the Company's
First Mortgage Bonds; or
(b)(i) With respect to each series of bonds established prior to June
1, 1992, either (A) no bonds of such series remain Outstanding or (B) the
requisite number of the bonds of such series have consented to the
termination of the Availability Agreement, the Assignments, thereof, the
Capital Funds Agreement and the Supplements thereto; and (ii) the
Availability Agreement, the Assignments thereof, the Capital Funds
Agreement and the Supplements thereto, are similarly terminated as they
relate to all other outstanding series of bonds and all other indebtedness
of the Company or no longer apply or do not apply to any other such series
of bonds or indebtedness.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by its President or one of its Vice Presidents or its Treasurer, and
its corporate seal to be attested by its Secretary, Assistant Secretary or
Assistant Treasurer for and in its behalf, and United States Trust Company
of New York, in token of its acceptance of the trust hereby created, has
caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by one of its Vice Presidents or by one of its Assistant
Vice Presidents and its corporate seal to be attested by one of its
Assistant Secretaries or one of its Assistant Vice Presidents and Gerard F.
Ganey for all like purposes has hereunto set his hand and affixed his seal,
all as of the 1st day of April, 1994.
SYSTEM ENERGY RESOURCES, INC.
By: _________________________
Vice President
Attest:
_________________________________
Assistant Secretary
Executed, sealed and delivered by System
Energy Resources, Inc. in the presence of:
_________________________________
_________________________________
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK
By:______________________________
Senior Vice President
Attest:
________________________
Assistant Vice President
Executed, sealed and delivered by United States
Trust Company of New York in the presence of:
________________________
________________________
_________________________ [L.S.]
Gerard F. Ganey
Executed, sealed and delivered by Gerard F. Ganey
in the presence of:
________________________
________________________
<PAGE>
STATE OF LOUISIANA )
) .ss:
PARISH OF ORLEANS )
On this 22nd day of April, 1994, before me, CONNIE H. WISE, a Notary
Public duly qualified and acting within and for said Parish and State,
appeared in person the within named GLENN E. HARDER and LEE W. RANDALL, to
me personally well known, who stated that they were a Vice President and an
Assistant Secretary, respectively, of SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation, and were duly authorized in their respective
capacities to execute the foregoing instrument for and in the name and
behalf of said corporation, and further stated and acknowledged that they
had so signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
On this 22nd day of April, 1994, before me appeared GLENN E. HARDER,
to me personally known, who, being by me duly sworn, did say that he is a
Vice President of SYSTEM ENERGY RESOURCES, INC., and that the seal affixed
to the above instrument is the corporate seal of said corporation and that
said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said GLENN E. HARDER, acknowledged
said instrument to be the free act and deed of said corporation.
Personally appeared before me, the undersigned authority in and for
the aforesaid Parish and State, on this 22nd day of April, 1994, within my
jurisdiction, the within named GLENN E. HARDER and LEE W. RANDALL, who
acknowledged that they are a Vice President and an Assistant Secretary,
respectively, of SYSTEM ENERGY RESOURCES, INC., an Arkansas corporation,
and that for and on behalf of said corporation, and as its act and deed,
they executed the above and foregoing instrument, after first having been
duly authorized by said corporation so to do.
On the 22nd day of April, 1994, before me personally came GLENN E.
HARDER, to me known, who, being by me duly sworn, did depose and say that
he resides at 106 West Ruelle, Mandeville, State of Louisiana; that he is a
Vice President of SYSTEM ENERGY RESOURCES, INC., the corporation described
in and which executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
Given under my hand and seal this 22nd day of April, 1994.
____________________
Connie H. Wise
Notary Public,
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this 25th day of April, 1994, before me, CHRISTINE C. COLLINS, a
Notary Public duly commissioned, qualified and acting within and for said
County and State, appeared GERARD F. GANEY and MARGARET CIESMELEWSKI, to me
personally well known, who stated that they were a Senior Vice President
and an Assistant Vice President, respectively, of UNITED STATES TRUST
COMPANY OF NEW YORK, a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and in the
name and behalf of said corporation; and further stated and acknowledged
that they had so signed, executed and delivered said foregoing instrument
for the consideration, uses and purposes therein mentioned and set forth.
On this 25th day of April, 1994, before me appeared GERARD F. GANEY,
to me personally known, who, being by me duly sworn, did say that he is a
Senior Vice President of UNITED STATES TRUST COMPANY OF NEW YORK, and that
the seal affixed to the above instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in behalf of
said corporation by authority of its Board of Trustees, and said GERARD F.
GANEY acknowledged said instrument to be the free act and deed of said
corporation.
Personally appeared before me, the undersigned authority in and for
the aforesaid County and State, on this 25th day of April, 1994 within my
jurisdiction, the within named GERARD F. GANEY and MARGARET CIESMELEWSKI,
who acknowledged that they are the Senior Vice President and Assistant Vice
President, respectively of UNITED STATES TRUST COMPANY OF NEW YORK, a New
York corporation, and that for and on behalf of the said corporation, and
as its act and deed, they executed the above and foregoing instrument,
after first having been duly authorized by the corporation so to do.
On this 25th day of April, 1994, before me personally came GERARD F.
GANEY, to me known, who, being by me duly sworn, did depose and say that he
resides at 45 Dawn Drive, Basking Ridge, New Jersey 07920; that he is a
Senior Vice President of UNITED STATES TRUST COMPANY OF NEW YORK, the
corporation described in and which executed the above instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Trustees of said corporation, and that he signed his name thereto
by like order.
Given under my hand and seal this 25th day of April, 1994.
_________________________
CHRISTINE C. COLLINS
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
Commission Expires March 30, 1996
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this 25th day of April, 1994, before me, CHRISTINE C. COLLINS, the
undersigned officer, personally appeared GERARD F. GANEY, known to me to be
the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein contained.
On this 25th day of April, 1994, before me personally appeared GERARD
F. GANEY, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his
free act and deed.
Personally appeared before me, the undersigned authority in and for
the said County and State, on this 25th day of April, 1994 within my
jurisdiction, the within named GERARD F. GANEY, who acknowledged that he
executed the above and foregoing instrument.
On this 25th day of April, 1994, before me personally came GERARD F.
GANEY, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
Given under my hand and seal this 25th day of April, 1994.
_________________________
CHRISTINE C. COLLINS
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
My Commission Expires March 30, 1996
<PAGE>
ANNEX A
[FORM OF REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7 5/8% Series due 1999
Due April 1, 1999
No. R $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of Arkansas
(hereinafter called the Company), for value received, hereby promises to
pay to ______________ or registered assigns, on April 1, 1999, at the
office or agency of the Company in the Borough of Manhattan, The City of
New York, Million Dollars in such coin or currency
of the United States of America as at the time of payment is legal tender
for public and private debts, and to pay to the registered owner hereof
interest thereon from the date hereof, at the rate of 7 5/8% per annum in
like coin or currency at said office or agency on October 1, 1994 for the
period from April 1, 1994 to October 1, 1994 and thereafter on April 1 and
October 1 in each year, until the principal of this bond shall have become
due and payable, and to pay interest on any overdue principal and on any
overdue premium and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the rate of 7 5/8% per annum, provided, that the interest so payable on any
April 1 or October 1 will, subject to certain exceptions set out in the
Nineteenth Supplemental Indenture mentioned on the reverse hereof, be paid
to the person in whose name this bond (or any bond or bonds previously
outstanding in transfer or exchange for which this bond was issued) is
registered at the close of business on the March 15 or September 15, as the
case may be, next preceding such interest payment date.
This bond shall not become obligatory until United States Trust
Company of New York, the Corporate Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of authentication
certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE HEREOF AND
SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused this bond
to be signed in its corporate name by its President or one of its Vice
Presidents by his signature or a facsimile thereof, and its corporate seal
to be impressed or imprinted hereon and attested by its Secretary or one of
its Assistant Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By............................
[Vice] President
Attest:
...................................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated,
described or provided for in the within-mentioned Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By....................................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7 5/8% Series due 1999
Due April 1, 1999
This bond is one of an issue of bonds of the Company issuable in
series and is one of a series known as its First Mortgage Bonds, 7 5/8%
Series due 1999, all bonds of all series issued and to be issued under and
equally secured (except insofar as any sinking or other fund, established
in accordance with the provisions of the Mortgage hereinafter mentioned,
may afford additional security for the bonds of any particular series and
as further specified therein) by a Mortgage and Deed of Trust (herein,
together with any indenture supplemental thereto including the Nineteenth
Supplemental Indenture, called the Mortgage), dated as of June 15, 1977,
executed by the Company to United States Trust Company of New York, as
Corporate Trustee, and Gerard F. Ganey (successor to Malcolm J. Hood), as
Co-Trustee. Reference is made to the Mortgage and particularly to the
First, Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh,
Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth,
Eighteenth and Nineteenth Supplemental Indentures to the Mortgage for a
description of the property mortgaged and pledged, the nature and extent of
the security (including certain additional security not given to all
bonds), the rights of the holders of the bonds and of the Trustees in
respect thereof, the duties and immunities of the Trustees and the terms
and conditions upon which the bonds are and are to be secured and the
circumstances under which additional bonds may be issued. With the consent
of the Company and to the extent permitted by and as provided in the
Mortgage, the rights and obligations of the Company and/or the rights of
the holders of the bonds and/or coupons and/or the terms and provisions of
the Mortgage may be modified or altered by such affirmative vote or votes
of the holders of bonds then outstanding as are specified in the Mortgage.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence of a default as in
the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in the Borough of Manhattan, The City
of New York, upon surrender and cancellation of this bond, and, thereupon,
a new fully registered bond of the same series for a like principal amount
will be issued to the transferee in exchange herefor as provided in the
Mortgage. Subject to the foregoing provisions as to the person entitled to
receive payment of interest hereon, the Company and the Trustees may deem
and treat the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all other
purposes and neither the Company nor the Trustees shall be affected by any
notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof, for cancellation, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are exchangeable
for a like aggregate principal amount of bonds of the same series of other
authorized denominations.
As provided in the Mortgage, the Company shall not be required to make
transfers or exchanges of bonds of any series for a period of ten (10) days
next preceding any interest payment date for bonds of said series, or next
preceding any designation of bonds of said series to be redeemed, and the
Company shall not be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
The bonds of this series shall not be redeemable at the option of the
Company.
The bonds of this series are redeemable at any time prior to maturity
at a Special Redemption Price equal to the principal amount of the bonds to
be redeemed, together with accrued interest to the date fixed for
redemption, all as more fully provided in the Mortgage.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors being
released by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial
holders hereof as then certified to the Corporate Trustee by The Depository
Trust Company (55 Water Street, New York, New York) or its successor (the
"Depositary"), this bond may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of transfer,
exchange or payment, and any certificate to be issued is registered in the
name of Cede & Co., or such other name as requested by an authorized
representative of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
This bond may be exchanged for certificated bonds registered in the
names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).]
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7 5/8% Series due 1999
Due April 1, 1999
No. TR $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of Arkansas
(hereinafter called the Company), for value received, hereby promises to
pay to _______________ or registered assigns, on April 1, 1999, at the
office or agency of the Company in the Borough of Manhattan, The City of
New York, Million Dollars in such coin or currency
of the United States of America as at the time of payment is legal tender
for public and private debts, and to pay to the registered owner hereof
interest thereon from the date hereof, at the rate of 7 5/8% per annum in
like coin or currency at said office or agency on October 1, 1994 for the
period from April 1, 1994 to October 1, 1994 and thereafter on April 1 and
October 1 in each year, until the principal of this bond shall have become
due and payable, and to pay interest on any overdue principal and on any
overdue premium and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the rate of 7 5/8% per annum, provided, that the interest so payable on any
April 1 or October 1 will, subject to certain exceptions set out in the
Nineteenth Supplemental Indenture mentioned on the reverse hereof, be paid
to the person in whose name this bond (or any bond or bonds previously
outstanding in transfer or exchange for which this bond was issued) is
registered at the close of business on the March 15 or September 15, as the
case may be, next preceding such interest payment date.
This bond shall not become obligatory until United States Trust
Company of New York, the Corporate Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of authentication
certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE HEREOF AND
SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused this bond
to be signed in its corporate name by its President or one of its Vice
Presidents by his signature or a facsimile thereof, and its corporate seal
to be impressed or imprinted hereon and attested by its Secretary or one of
its Assistant Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By ...........................
[Vice] President
Attest:
....................................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated,
described or provided for in the within-mentioned Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By.............................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7 5/8% Series due 1999
Due April 1, 1999
This bond is a temporary bond and is one of an issue of bonds of the
Company issuable in series and is one of a series known as its First
Mortgage Bonds, 7 5/8% Series due 1999, all bonds of all series issued and
to be issued under and equally secured (except insofar as any sinking or
other fund, established in accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for the bonds of any
particular series and as further specified therein) by a Mortgage and Deed
of Trust (herein, together with any indenture supplemental thereto
including the Nineteenth Supplemental Indenture, called the Mortgage),
dated as of June 15, 1977, executed by the Company to United States Trust
Company of New York, as Corporate Trustee, and Gerard F. Ganey (successor
to Malcolm J. Hood), as Co-Trustee. Reference is made to the Mortgage and
particularly to the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth and Nineteenth Supplemental Indentures to the
Mortgage for a description of the property mortgaged and pledged, the
nature and extent of the security (including certain additional security
not given to all bonds), the rights of the holders of the bonds and of the
Trustees in respect thereof, the duties and immunities of the Trustees and
the terms and conditions upon which the bonds are and are to be secured and
the circumstances under which additional bonds may be issued. With the
consent of the Company and to the extent permitted by and as provided in
the Mortgage, the rights and obligations of the Company and/or the rights
of the holders of the bonds and/or coupons and/or the terms and provisions
of the Mortgage may be modified or altered by such affirmative vote or
votes of the holders of bonds then outstanding as are specified in the
Mortgage.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence of a default as in
the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in the Borough of Manhattan, The City
of New York, upon surrender and cancellation of this bond, and, thereupon,
a new fully registered bond of the same series for a like principal amount
will be issued to the transferee in exchange herefor as provided in the
Mortgage. Subject to the foregoing provisions as to the person entitled to
receive payment of interest hereon, the Company and the Trustees may deem
and treat the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all other
purposes and neither the Company nor the Trustees shall be affected by any
notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof, for cancellation, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are exchangeable
for a like aggregate principal amount of bonds of the same series of other
authorized denominations.
In the manner prescribed in the Mortgage, this temporary bond is
exchangeable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, for a definitive bond or bonds of the same
series of a like principal amount when such definitive bonds are prepared
and ready for delivery.
As provided in the Mortgage, the Company shall not be required to make
transfers or exchanges of bonds of any series for a period of ten (10) days
next preceding any interest payment date for bonds of said series, or next
preceding any designation of bonds of said series to be redeemed, and the
Company shall not be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
The bonds of this series shall not be redeemable at the option of the
Company.
The bonds of this series are redeemable at any time prior to maturity
at a Special Redemption Price equal to the principal amount of the bonds to
be redeemed, together with accrued interest to the date fixed for
redemption, all as more fully provided in the Mortgage.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director of
the Company or of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors being
released by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial
holders hereof as then certified to the Corporate Trustee by The Depository
Trust Company (55 Water Street, New York, New York) or its successor (the
"Depositary"), this bond may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of transfer,
exchange or payment, and any certificate to be issued is registered in the
name of Cede & Co., or such other name as requested by an authorized
representative of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
This bond may be exchanged for certificated bonds registered in the
names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).]
Exhibit B-1(d)
$60,000,000
SYSTEM ENERGY RESOURCES, INC.
UNDERWRITING AGREEMENT
First Mortgage Bonds, 7_% Series due April 1, 1999
Salomon Brothers Inc
April 21, 1994_________________________
<PAGE>
April 21, 1994
SALOMON BROTHERS INC
Seven World Trade Center, 30th Floor
New York, New York 10048
Ladies & Gentlemen:
The undersigned, System Energy Resources, Inc., an
Arkansas corporation (the "Company"), hereby confirms its
agreement with you, as Underwriter, to issue and sell to you
$60,000,000 principal amount of the Company's First Mortgage
Bonds, 7_% Series due April 1, 1999 (the "Bonds"), as
follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject
to the terms and conditions set forth in this agreement (the
"Underwriting Agreement"), you shall purchase from the
Company, and the Company shall issue and sell to you, the
Bonds at 99.225% of the principal amount thereof plus accrued
interest from April 1, 1994 to the date of payment for and
delivery of the Bonds.
SECTION 2. Description of Bonds. The Bonds shall
be issued under and pursuant to the Company's Mortgage and
Deed of Trust, dated as of June 15, 1977, with United States
Trust Company of New York and Gerard F. Ganey (successor to
Malcolm J. Hood), as trustees ("Trustees"), as supplemented
by the Nineteenth Supplemental Indenture, dated as of April
1, 1994 (the "Supplemental Indenture"), to said Mortgage and
Deed of Trust. Said Mortgage and Deed of Trust, as
supplemented and as it will be further supplemented by the
Supplemental Indenture is hereinafter referred to as the
"Mortgage". The Bonds and the Supplemental Indenture shall
have the terms and provisions described in the Prospectus
hereinafter referred to, provided that subsequent to the date
hereof and prior to the Closing Date the form of the
Supplemental Indenture may be amended by mutual agreement
between the Company and you.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to you that:
(a) The Company is duly organized and validly
existing as a corporation in good standing under the laws of
the State of Arkansas and has the necessary corporate power
and authority to conduct the business which it is described
in the Prospectus (hereinafter defined) as conducting and to
own and operate the properties owned and operated by it in
such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-47662) for the
registration of $500,000,000 principal amount of the
Company's First Mortgage Bonds ("First Mortgage Bonds") under
the Securities Act of 1933, as amended ("Securities Act") (of
which an aggregate of $220,000,000 of such First Mortgage
Bonds remain unsold), and such registration statement has
become effective. The Company qualifies for use of Form S-3
for the registration of the Bonds. The prospectus forming a
part of the registration statement, at the time such
registration statement (or the most recent amendment thereto
filed prior to the time of effectiveness of this Underwriting
Agreement) became effective, including all documents
incorporated by reference therein at that time pursuant to
Item 12 of Form S-3, is hereinafter referred to as the "Basic
Prospectus". In the event that the Basic Prospectus shall
have been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to First Mortgage Bonds other than the Bonds)
prior to the time of effectiveness of the Underwriting
Agreement, and with respect to any documents filed by the
Company pursuant to Section 13 or 14 of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), after the
time the registration statement became effective and up to
the time of effectiveness of the Underwriting Agreement (but
excluding documents incorporated therein by reference
relating solely to First Mortgage Bonds other than the
Bonds), which documents are deemed to be incorporated by
reference in the Basic Prospectus, the term "Basic
Prospectus" as used herein shall also mean such prospectus as
so amended, revised or supplemented. Such registration
statement as it initially became effective and as it may have
been amended by all amendments thereto as of the time of
effectiveness of the Underwriting Agreement (including for
these purposes as an amendment any document incorporated by
reference in the Basic Prospectus), and the Basic Prospectus
as it shall be supplemented to reflect the terms of the
offering and sale of the Bonds by a prospectus supplement
("Prospectus Supplement") to be filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424"), are hereinafter referred to as
the "Registration Statement" and the "Prospectus,"
respectively. After the time of effectiveness of the
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file (i) any amendment to
the Registration Statement or supplement to the Prospectus
(except any amendment or supplement relating solely to First
Mortgage Bonds other than the Bonds) or (ii) prior to the
time that the Prospectus is filed with, or transmitted for
filing to, the Commission pursuant to Rule 424, any document
which is to be incorporated by reference in, or any
supplement to the Basic Prospectus, in either case, without
prior notice to you and to Winthrop, Stimson, Putnam &
Roberts ("Counsel for the Underwriter"), or any such
amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes
of the Underwriting Agreement, any document which is filed
with the Commission after the time of effectiveness of the
Underwriting Agreement and is incorporated by reference in
the Prospectus (except documents incorporated by reference
relating solely to First Mortgage Bonds other than the Bonds)
pursuant to Item 12 of Form S-3 shall be deemed a supplement
to the Prospectus.
(c) The Registration Statement, at the later of
(i) the time of its initial effectiveness or (ii) the date
that any post-effective amendment to the Registration
Statement (excluding any post-effective amendment relating
solely to First Mortgage Bonds other than the Bonds) was or
is declared effective by the Commission under the Securities
Act, and the Mortgage, at such time, fully complied, and the
Prospectus, when filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 and at the Closing Date
(hereinafter defined), as it may then be amended or
supplemented, will fully comply in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act") and
the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations did or will be deemed
to comply therewith. The documents incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, on the
date first filed with the Commission pursuant to the Exchange
Act, fully complied or will fully comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations are or will be deemed
to comply therewith. On the date that the Company's most
recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act, the Registration Statement
did not, and on the date that any post-effective amendment to
the Registration Statement became or becomes effective (but
excluding any post-effective amendment relating solely to
First Mortgage Bonds other than the Bonds), the Registration
Statement as amended by any such post-effective amendment did
not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading. At the time the
Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 and at the Closing Date
(hereinafter defined), the Prospectus, as it may then be
amended or supplemented, will not include an untrue statement
of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and
on said dates and at such times, the documents then
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or
the Prospectus, as it may then be amended or supplemented,
will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
The foregoing representations and warranties in this
paragraph (c) shall not apply to statements or omissions made
in reliance upon and in conformity with written information
furnished to the Company by you specifically for use in
connection with the preparation of the Registration Statement
or the Prospectus, as they may be amended or supplemented, or
to any statements in or omissions from the statements of
eligibility, as either may be amended, under the Trust
Indenture Act, of the Trustees under the Mortgage.
(d) The issuance and sale of the Bonds and the
fulfillment of the terms of the Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Mortgage or any indenture,
other mortgage, deed of trust or other agreement or
instrument to which the Company is now a party.
(e) Except as set forth or contemplated in the
Prospectus, the Company has obtained all material licenses,
permits, and other governmental or regulatory authorizations
currently required for the conduct of its business, and is in
all material respects complying therewith, and the Company is
not aware of any fact that would lead it to believe that any
material license, permit or other governmental or regulatory
authorization would not remain in effect or be renewed in its
ordinary course of business.
SECTION 4. Offering. The Company is advised by
you that you propose to make a public offering of the Bonds
as soon after the Underwriting Agreement has become effective
as in your judgment is advisable. The Company is further
advised by you that the Bonds will be offered to the public
at the initial public offering price specified in the
Prospectus Supplement plus accrued interest from April 1,
1994 to the date of delivery of the Bonds. The Bonds may
also be offered to certain dealers selected by you at a price
which represents a concession of .375% of the principal
amount under the public offering price, and that you may
allow, and such dealers may reallow, a concession not in
excess of .250% of the principal amount of the Bonds to
certain other dealers.
SECTION 5. Time and Place of Closing. Delivery of
the Bonds and payment therefor by check or checks payable in
New York Clearing House Funds or similar next day funds shall
be made at the offices of Reid & Priest, 40 West 57th Street,
New York, New York, at 10:00 A.M., New York time, on April
28, 1994, or at such other time on the same or such other day
as shall be agreed upon by the Company and you. The hour and
date of such delivery and payment are herein called the
"Closing Date".
The Bonds shall be delivered to you in such
authorized denominations and registered in such names
as you may request in writing by the close of business
at least two business days prior to the Closing Date or, to
the extent not so requested, in your name in such
denominations as the Company shall determine. The Company
agrees to make the Bonds available to you for checking not
later than 2:30 P.M., New York Time, on the last business day
preceding the Closing Date at such place as may be agreed
upon between you and the Company, or at such other time
and/or date as may be agreed upon between you and the
Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with you that:
(a) The Company will deliver to you a copy of the
Registration Statement relating to the Bonds as originally
filed with the Commission, including the related prospectus
and of all amendments or supplements thereto relating to the
Bonds, certified by an officer of the Company to be in the
form filed.
(b) The Company will deliver to you as many copies
of the Prospectus (and any amendments or supplements thereto)
as you may reasonably request.
(c) The Company will cause the Prospectus to be
filed with, or transmitted for filing to, the Commission
pursuant to and in compliance with Rule 424 within the time
period required by Section 7(a) hereof and will advise you
promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use its
best efforts to prevent the issuance of any such stop order
and to secure the prompt removal thereof if issued.
(d) During such period of time after the
Underwriting Agreement has become effective as you are
required by law to deliver a prospectus, if any event
relating to or affecting the Company, or of which the Company
shall be advised by you in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser of the Bonds, the Company will amend
or supplement the Prospectus by either (i) preparing and
filing with the Commission and furnishing to you a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus, or (ii) making an
appropriate filing pursuant to Section 13 or 14 of the
Exchange Act which will supplement or amend the Prospectus,
so that, as supplemented or amended, it will not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading. Unless such event relates solely
to your activities (in which case you shall assume the
expense of preparing any such amendment or supplement), the
expenses of complying with this Section 6(d) shall be borne
by the Company until the expiration of nine months from the
initial effective date of the Registration Statement, and
such expenses shall be borne by you thereafter.
(e) The Company will make generally available to
its security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of at
least twelve months beginning after the "effective date of
the registration statement" within the meaning of Rule 158
under the Securities Act, which earning statement shall be in
such form, and be made generally available to security
holders in such a manner so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act and
Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date
hereof, the Company will furnish such proper information as
may be lawfully required and otherwise cooperate in
qualifying the Bonds for offer and sale under the "blue sky"
laws of such jurisdictions as you may reasonably designate,
provided that the Company shall not be required to qualify as
a foreign corporation or dealer in securities, to file any
consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by the
Company to be unduly burdensome.
(g) The Company will, except as herein provided,
pay all expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the
Registration Statement, (ii) the printing, issuance and
delivery of the Bonds and the preparation, execution,
printing and recordation of the Supplemental Indenture, (iii)
legal fees and expenses relating to the qualification of the
Bonds under the "blue sky" laws of various jurisdictions and
the determination of the eligibility of the Bonds for
investment under the laws of various jurisdictions, up to a
maximum cost to it of $6,000, (iv) the printing and delivery
to you of reasonable quantities of copies of the Registration
Statement, the Preliminary Blue Sky Survey, the Preliminary
Legality Memorandum and the Prospectus and any amendment or
supplement thereto, except as otherwise provided in paragraph
(d) of this Section, (v) fees of the rating agencies in
connection with the rating of the Bonds, and (vi) fees (if
any) of the National Association of Securities Dealers, Inc.
in connection with its review of the terms of the offering.
Except as provided above, the Company shall not be required
to pay any amount for any of your expenses, except that, if
this Underwriting Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 11 hereof, the Company
will reimburse you for (i) the reasonable fees and expenses
of Counsel for the Underwriter, whose fees and expenses you
agree to pay in any other event, and (ii) reasonable out-of-
pocket expenses, in an amount not exceeding $10,000, incurred
in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to
you for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional First
Mortgage Bonds without your consent until the earlier to
occur of (i) the Closing Date or (ii) the date of the
termination of the fixed price offering restrictions
applicable to you. You agree to notify the Company of such
termination if it occurs prior to the Closing Date.
SECTION 7. Conditions of Underwriter's
Obligations. Your obligations to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and
on the Closing Date of the representations and warranties
made herein on the part of the Company and of any
certificates furnished by the Company on the Closing Date and
to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 5:30 P.M., New York time, on the second business
day following the date of the Underwriting Agreement, or such
other time and date as may be agreed upon by the Company and
you.
(b) No stop order suspending the effectiveness of
the Registration Statement shall be in effect at or prior to
the Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Company,
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date and
signed by the President, a Vice President or the Treasurer of
the Company, to the effect that no such stop order has been
or is in effect and that no proceedings for such purpose are
pending before, or to the knowledge of the Company threatened
by, the Commission.
(c) At the Closing Date, there shall be in full
force and effect an order of the Commission under the Public
Utility Holding Company Act of 1935 (the "Holding Company
Act") authorizing the issuance and sale of the Bonds on the
terms set forth in or contemplated by the Underwriting
Agreement, the Supplemental Indenture and the Prospectus.
(d) At the Closing Date, you shall have received
from Wise Carter Child & Caraway, Professional Association;
Reid & Priest; Friday, Eldredge & Clark; and counsel for the
System operating companies (Friday, Eldredge & Clark as to
Arkansas Power & Light Company ("AP&L"); Wise Carter Child &
Caraway, Professional Association, as to Mississippi Power &
Light Company ("MP&L"); and Monroe & Lemann (A Professional
Corporation), as to Louisiana Power & Light Company ("LP&L")
and New Orleans Public Service Inc. ("NOPSI")), opinions,
dated the Closing Date, substantially in the forms set forth
in Exhibits A, B, C and D hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and you
with the approval of Counsel for the Underwriter, and (ii) if
the Prospectus shall be supplemented after being furnished to
you for use in offering the Bonds, with changes therein to
reflect such supplementation.
(e) At the Closing Date, you shall have received
from Winthrop, Stimson, Putnam & Roberts, Counsel for the
Underwriter, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit E hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, you shall have received from the
Company's independent certified public accountants (the
"Accountants") a letter dated the date hereof and addressed
to you to the effect that (i) they are independent certified
public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published
rules and regulations thereunder; (ii) in their opinion, the
financial statements and financial statement schedules
examined by them and included or incorporated by reference in
the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Securities
Act and the Exchange Act and the applicable published rules
and regulations thereunder; (iii) on the basis of performing
the procedures specified by the American Institute of
Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim
Financial Information, on the latest unaudited financial
statements (if any) included or incorporated by reference in
the Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes of
the meetings of the Board of Directors of the Company, the
Executive Committee thereof, if any, and the stockholder of
the Company, since December 31, 1993 to a specified date not
more than five days prior to the date of such letter, and
inquiries of officers of the Company who have responsibility
for financial and accounting matters (it being understood
that the foregoing procedures do not constitute an
examination made in accordance with generally accepted
auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that the Accountants make no
representations as to the sufficiency of such procedures for
your purposes), nothing has come to their attention which
caused them to believe that (A) the unaudited financial
statements of the Company (if any) included or incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder; (B)
any material modifications should be made to said unaudited
financial statements for them to be in conformity with
generally accepted accounting principles and (C) at a
specified date not more than five days prior to the date of
the letter, there was any change in the capital stock or long-
term debt of the Company, or decrease in its net assets, in
each case as compared with amounts shown in the most recent
balance sheet incorporated by reference in the Prospectus,
except in all instances for changes or decreases which the
Prospectus discloses have occurred or may occur, for
declarations of dividends, for the repayment or redemption of
long-term debt, for the amortization of premium or discount
on long-term debt, or for changes or decreases as set forth
in such letter, identifying the same and specifying the
amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings
and other financial information pertaining to the Company set
forth in the Prospectus and specified in Exhibit F hereto to
the extent that such amounts, numbers, percentages and
information may be derived from the general accounting
records of the Company, and excluding any questions requiring
an interpretation by legal counsel, with the results obtained
from the application of specified readings, inquiries and
other appropriate procedures (which procedures do not
constitute an examination in accordance with generally
accepted auditing standards) set forth in the letter, and
found them to be in agreement.
(g) At the Closing Date, you shall have received
(i) a certificate, dated the Closing Date and signed by the
President, a Vice President or the Treasurer of the Company
to the effect that (A) the representations and warranties of
the Company contained herein are true and correct, (B) the
Company has performed and complied with all agreements and
conditions in this Underwriting Agreement to be performed or
complied with by the Company at or prior to the Closing Date,
and (C) since the most recent date as of which information is
given in the Prospectus, as it may be amended or
supplemented, there has not been any material adverse change
in the business, property or financial condition of the
Company and there has not been any material transaction
entered into by the Company, other than transactions in the
ordinary course of business, in each case other than as
referred to in, or contemplated by, the Prospectus, as it may
be amended or supplemented; and (ii) certificates, dated the
Closing Date and signed by the President, a Vice President or
the Treasurer of Entergy to the effect that (1) except as set
forth or contemplated in the Prospectus, as it may be amended
or supplemented, Entergy, AP&L, LP&L, MP&L and NOPSI have
obtained all material licenses, permits, approvals and other
governmental or regulatory authorizations required to enable
them to fulfill their obligations to the Company under the
terms of, with respect to Entergy, the Capital Funds
Agreement and the Twenty-ninth Supplementary Capital Funds
Agreement and Assignment, dated as of April 1, 1994
(hereinafter referred to as the "Supplementary Capital Funds
Agreement") among the Company, the Trustees and Entergy, and,
with respect to AP&L, LP&L, MP&L and NOPSI, the Availability
Agreement and the Twenty-ninth Assignment of Availability
Agreement, Consent and Agreement, dated as of April 1, 1994
(hereinafter referred to as the "Assignment of Availability
Agreement") among the Company, the Trustees, AP&L, LP&L, MP&L
and NOPSI, each as described in the Prospectus and (2) since
the most recent date as of which information is given in the
prospectus included in the Registration Statement, there has
not been any material adverse change in the business,
property or financial condition of Entergy and its
subsidiaries considered as a whole.
(h) You shall have received duly executed
counterparts of (i) the Assignment of Availability Agreement,
(ii) the Supplementary Capital Funds Agreement and (iii) the
Supplemental Indenture.
(i) At the Closing Date, you shall have received
from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter
delivered pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date,
a Default (or an event which, with the giving of notice or
the passage of time or both, would constitute a Default)
under the Mortgage shall not have occurred.
(k) Between the date hereof and the Closing Date,
no other event shall have occurred with respect to or
otherwise affecting the Company, or the Entergy System as a
whole as it affects the Company, which in your reasonable
opinion materially impairs the investment quality of the
Bonds.
(l) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Corporation shall have lowered its rating of the Company's
outstanding First Mortgage Bonds in any respect.
(m) All legal matters in connection with the
issuance and sale of the Bonds shall be satisfactory in form
and substance to Counsel for the Underwriter.
The Company will furnish you with such conformed
copies of such opinions, certificates, letters and documents
as may be reasonably requested.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement
may be terminated by you upon notice thereof to the Company.
Any such termination shall be without liability of any party
to the other party, except as otherwise provided in paragraph
(g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations.
The obligations of the Company hereunder shall be subject to
the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 5:30 P.M., New York time, on the second business
day following the date of this Underwriting Agreement, or
such other time and date as may be agreed upon by the Company
and you.
(b) No stop order suspending the effectiveness of
the Registration Statement shall be in effect at or prior to
the Closing Date, and no proceedings for that purpose shall
be pending before, or threatened by, the Commission on the
Closing Date.
(c) At the Closing Date there shall be in full
force and effect an order of the Commission under the Holding
Company Act authorizing the issuance and sale of the Bonds on
the terms set forth in or contemplated by this Underwriting
Agreement, the Supplemental Indenture and the Prospectus.
In case any of the conditions specified in this
Section shall not have been fulfilled, this Underwriting
Agreement may be terminated by the Company upon notice
thereof to you. Any such termination shall be without
liability of any party to the other party, except as
otherwise provided in paragraph (g) of Section 6 and in
Section 9.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless you and each person who controls you within the
meaning of Section 15 of the Securities Act from and against
any and all losses, claims, damages or liabilities, joint or
several, to which you or any or all of them may become
subject under the Securities Act or any other statute or
common law and shall reimburse you and any such controlling
person for any legal or other expenses (including to the
extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, as
amended or supplemented, or the omission or alleged omission
to state therein a material fact necessary to make the
statements therein not misleading, or upon an untrue
statement or alleged untrue statement of a material fact
contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424), or in the Prospectus,
as amended or supplemented, or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any
such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made
in reliance upon and in conformity with information furnished
herein or in writing to the Company by you specifically for
use in connection with the preparation of the Registration
Statement, the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of, or
based upon, statements in or omissions from that part of the
Registration Statement which constitutes the statements of
eligibility under the Trust Indenture Act of the Trustees;
and provided further, that the indemnity agreement contained
in this subsection shall not inure to your benefit or to the
benefit of any person controlling you on account of any such
losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Bonds to any person in respect
of any Basic Prospectus or the Prospectus, as supplemented or
amended (excluding in both cases, however, any document then
incorporated or deemed incorporated by reference therein),
furnished by you to a person to whom any of the Bonds were
sold, insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic Prospectus
or the Prospectus but eliminated or remedied prior to the
consummation of such sale in the Prospectus, or any amendment
or supplement thereto, respectively, unless a copy of the
Prospectus (in the case of such a statement or omission made
in the Basic Prospectus) or such amendment or supplement (in
the case of such a statement or omission made in the
Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating to any First Mortgage Bonds
other than the Bonds and any document then incorporated or
deemed incorporated by reference in the Prospectus or such
amendment or supplement) is furnished by you to such person
(i) with or prior to the written confirmation of the sale
involved or (ii) as soon as available after such written
confirmation.
(b) You shall indemnify, defend and hold harmless
the Company, its directors and officers and each person who
controls the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities
Act or any other statute or common law and shall reimburse
each of them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, as
amended or supplemented, or the omission or alleged omission
to state therein a material fact necessary to make the
statements therein not misleading, or upon an untrue
statement or alleged untrue statement of a material fact
contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424) or in the Prospectus, as
amended or supplemented, or the omission or alleged omission
to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, in each case, if, but only if, such statement or
omission was made in reliance upon and in conformity with
information furnished herein or in writing to the Company by
you specifically for use in connection with the preparation
of the Registration Statement, the Basic Prospectus (if used
prior to the date the Prospectus is filed with the Commission
pursuant to Rule 424) or the Prospectus, or any amendment or
supplement thereto.
(c) In case any action shall be brought, based
upon the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto),
against any party in respect of which indemnity may be sought
pursuant to any of the preceding paragraphs, such party
(hereinafter called the indemnified party) shall promptly
notify the party or parties against whom indemnity shall be
sought hereunder (hereinafter called the indemnifying party)
in writing, and the indemnifying party shall have the right
to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying
party) the defense thereof, including the employment of
counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses. If the indemnifying
party shall elect not to assume the defense of any such
action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any
such action in which the defense has been assumed by the
indemnifying party and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment
of counsel has been specifically authorized by the
indemnifying party or (ii) the named parties to any such
action (including any impleaded parties) include each of such
indemnified party and the indemnifying party and such
indemnified party shall have been advised by such counsel
that a conflict of interest between the indemnifying party
and such indemnified party may arise and for this reason it
is not desirable for the same counsel to represent both the
indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys for such
indemnified party (plus any local counsel retained by such
indemnified party in its reasonable judgment), which firm (or
firms), in the case of you being the indemnified party, shall
be designated in writing by you). The indemnified party
shall be reimbursed for all such fees and expenses as they
are incurred. The indemnifying party shall not be liable for
any settlement of any such action effected without its
consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for
the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless the indemnified party
from and against any loss or liability by reason of such
settlement or judgment. An indemnifying party shall not,
without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened
litigation, proceeding or claim in respect of which indemnity
has been properly sought by any indemnified party or by any
person controlling any indemnified party hereunder, unless
such settlement includes an unconditional release of such
indemnified party or such person controlling any indemnified
party from all liability with respect to claims which are the
subject matter of such litigation, proceeding or claim.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable
to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and you
from the offering of the Bonds or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of
you on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and you on the other shall be deemed
to be in the same proportion as the total proceeds from the
offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company
bear to the total underwriting discounts and commissions
received by you, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault of the
Company on the one hand and of you on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates
to information supplied by the Company or you and such
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
The Company and you agree that it would not be just
and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified
party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), you
shall not be required to contribute any amount in excess of
the amount by which the total price at which the Bonds
underwritten by you and distributed to the public were
offered to the public exceeds the amount of any damages which
you have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
SECTION 10. Survival of Certain Representations
and Obligations. Any other provision of this Underwriting
Agreement to the contrary notwithstanding, (a) the indemnity
and contribution agreements contained in Section 9, and the
representations and warranties and other agreements of the
Company, contained in this Underwriting Agreement shall
remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of you, the
Company or its directors or officers, or the other persons
referred to in Section 9 hereof and (ii) acceptance of
and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Termination. This Underwriting
Agreement may be terminated at any time prior to the Closing
Date by written notice from you if, prior to that time,
(i) trading in securities on the New York Stock Exchange
shall have been generally suspended, (ii) minimum or maximum
ranges for prices shall have been generally established on
the New York Stock Exchange by the New York Stock Exchange,
the Commission or other governmental authority, (iii) a
general banking moratorium shall have been declared by
Federal or New York State authorities, or (iv) there shall
have occurred any material outbreak or escalation of
hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to
make it, in your reasonable judgment, impracticable to market
the Bonds. Any termination hereof, pursuant to this
Section 11, shall be without liability of either party to the
other party, except as otherwise provided in paragraph (g) of
Section 6 and in Section 10.
SECTION 12. Miscellaneous. THIS UNDERWRITING
AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND
INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK. This Underwriting Agreement shall become effective
when a fully executed copy thereof is delivered to the
Company and you. This Underwriting Agreement may be executed
in any number of separate counterparts, each of which, when
so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one
and the same agreement. This Underwriting Agreement shall
inure to the benefit of each of the Company, you and, with
respect to the provisions of Section 9, each director,
officer and controlling person referred to in Section 9, and
their respective successors. Should any part of this
Underwriting Agreement for any reason be declared invalid,
such declaration shall not affect the validity of any
remaining portion, which remaining portion shall remain in
full force and effect as if this Underwriting Agreement had
been executed with the invalid portion thereof eliminated.
Nothing herein is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of any provision
in this Underwriting Agreement. The term "successor" as used
in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from you.
SECTION 13. Notices. All communications hereunder
shall be in writing and, if to you, shall be mailed or
delivered to you at the address set forth at the beginning of
this Underwriting Agreement (to the attention of the General
Counsel) or, if to the Company, shall be mailed or delivered
to it at 1340 Echelon Parkway, Jackson, Mississippi 39213,
Attention: Secretary.
Very truly yours,
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Gerald D. McInvale
Name: Gerald D. McInvale
Title: Senior Vice President
and Chief Financial
Officer
By: /s/ Bonnie Wilkinson
Attorney-in-fact
Accepted as of the date first above written:
SALOMON BROTHERS INC
By: /s/ Howard Hiller
Name: Howard Hiller
Title: Vice President
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
April , 1994
SALOMON BROTHERS INC
Seven World Trade Center, 30th Floor
New York, New York 10048
Ladies and Gentlemen:
We, together with Reid & Priest, of New York, New
York, have acted as counsel for System Energy Resources, Inc.
(the "Company") in connection with the issuance and sale by
it pursuant to the Underwriting Agreement, effective April
, 1994 (the "Underwriting Agreement"), between the Company
and you, of $60,000,000 in aggregate principal amount of its
First Mortgage Bonds, % Series due April 1, ____ (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed
of Trust, dated as of June 15, 1977, as amended and
supplemented by all indentures supplemental thereto, the
latest such supplement being the Nineteenth Supplemental
Indenture, dated as of April 1, 1994, to United States Trust
Company of New York and Gerard F. Ganey (successor to Malcolm
J. Hood), as Trustees (the "Trustees") (the Mortgage and Deed
of Trust as so amended and supplemented being hereinafter
referred to as the "Mortgage"). This opinion is rendered to
you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated
Articles of Incorporation and By-Laws, as amended; (b) the
Underwriting Agreement; (c) the Mortgage; (d) the
Registration Statement and Prospectus (such terms having the
same meaning herein as in the Underwriting Agreement) filed
under the Securities Act of 1933, as amended (the "Act"); (e)
the Availability Agreement dated as of June 21, 1974, as
amended (the "Availability Agreement"), between the Company,
Arkansas Power & Light Company ("AP&L"), Louisiana Power &
Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI"); (f)
the Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement, dated as of April __, 1994
(hereinafter referred to as the "Assignment of Availability
Agreement") among the Company, the Trustees, AP&L, LP&L, MP&L
and NOPSI; (g) the Capital Funds Agreement dated as of June
21, 1974, as amended (the "Capital Funds Agreement"), between
the Company and Entergy Corporation ("Entergy"); (h) the
Twenty-ninth Supplementary Capital Funds Agreement and
Assignment, dated as of April __, 1994 (hereinafter referred
to as the "Supplementary Capital Funds Agreement") among the
Company, the Trustees and Entergy; (i) the records of various
corporate proceedings relating to the authorization, issuance
and sale of the Bonds by the Company and the execution and
delivery by the Company of the Mortgage, the Underwriting
Agreement, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement and (j) the proceedings
before the Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of
1935, as amended (the "1935 Act"), relating to the issuance
and sale of the Bonds by the Company and the execution and
delivery by the Company of the Mortgage, the Underwriting
Agreement, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement. We have also examined
or caused to be examined such other documents and have
satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. We have
not examined the Bonds, except a specimen thereof, and we
have relied upon a certificate of the United States Trust
Company of New York as to the execution and authentication
thereof.
Subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the
opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Arkansas, has due corporate power and authority to
conduct the business which it is described as conducting in
the Prospectus and to own and operate the properties owned
and operated by it in such business and is duly qualified to
conduct such business in the States of Arkansas and
Mississippi.
(2) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of
the Company, has been duly and validly executed and delivered
by the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting the enforcement of mortgagees' and other creditors'
rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and has been duly qualified under the
Trust Indenture Act of 1939, as amended ("TIA"), and no
proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the
Commission.
(3) The statements made in the Prospectus under
the captions "Description of the New Bonds," insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Bonds have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and are
entitled to the benefit of the security afforded by the
Mortgage.
(5) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly
authorized, executed and delivered by the Company and
constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with
their respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The
Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(6) The issuance and sale by the Company of the
Bonds, the execution, delivery and performance by the Company
of the Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement and the consummation of the transactions
contemplated thereby (a) will not violate any provision of
the Company's Amended and Restated Articles of Incorporation
or By-laws, as amended, (b) will not violate or conflict with
any provision of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance
on or security interest in (other than as contemplated by the
Mortgage, the Assignment of Availability Agreement and the
Supplementary Capital Funds Agreement) any of the assets of
the Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its respective assets, and (c)
will not violate any provision of any law or regulation
applicable to the Company or, to the best of our knowledge
(having made due inquiry with respect thereto), any provision
of any order, writ, judgment or decree of any governmental
instrumentality applicable to the Company (except that
various approvals, authorizations, orders, licenses, permits,
franchises and consents of, and registrations, declarations
and filings with, governmental authorities may be required to
be obtained or made, as the case may be (1) in connection or
compliance with the provisions of the securities or blue-sky
laws of any jurisdiction, (2) in connection with the
construction, acquisition, ownership, operation and
maintenance of the Grand Gulf Nuclear Electric Generating
Station and (3) as set forth in the exceptions to the
opinions set forth in paragraph (8) below).
(7) Except in each case as to the financial
statements and other financial or statistical data included
or incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the time of its
effectiveness, and the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Act complied as to form in all material
respects with the applicable requirements of the Act and
(except with respect to the parts of the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we do not pass)
the TIA and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, such documents or portions thereof, on the
date first filed with the Commission complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and on the
date hereof is effective under the Act, and, to the best of
our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d)
of the Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and
sale of the Bonds and the execution, delivery and (except to
the extent indicated below) performance by the Company of the
Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement; to the best of our knowledge, said order is in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction) is legally
required to permit the issuance and sale by the Company of
the Bonds pursuant to the Underwriting Agreement; and no
further approval, authorization, consent or other order of
any governmental body is legally required to permit the
performance (other than that relating to the construction,
acquisition, ownership, operation and maintenance of the
Grand Gulf Nuclear Electric Generating Station) by the
Company of its obligations with respect to the Bonds or under
the Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement, except (1) appropriate orders or the taking of
other action by governmental regulatory authorities having
jurisdiction pursuant to valid statutory enactments as to the
issuance by the Company, and the acquisition by Entergy, of
any securities to be issued by the Company to Entergy
pursuant to the Capital Funds Agreement and the Supplementary
Capital Funds Agreement after the date hereof, and as to the
issuance by the Company of any securities to others other
than Entergy pursuant to the Capital Funds Agreement and the
Supplementary Capital Funds Agreement after the date hereof
and (2) with respect to the Availability Agreement and the
Assignment of Availability Agreement (other than each
respective Section 2.2.(b) thereof), in the event that the
Company shall determine to sell capacity and/or energy from
any generating unit pursuant to the terms of the Availability
Agreement or the Assignment of Availability Agreement,
appropriate orders, or the taking of other action, by
governmental regulatory authorities having jurisdiction
pursuant to valid statutory enactments as to the specific
terms and provisions under which such capacity and/or energy
shall be made available.
(9) The Company has good and sufficient title to
the properties described as owned by it in and as subject to
the lien of the Mortgage (except properties released under
the terms of the Mortgage), subject only to Excepted
Encumbrances, as defined in the Mortgage, and to minor
defects and encumbrances customarily found in properties of
like size and character which do not, in our opinion,
materially impair the use of the property affected thereby in
the conduct of the business of the Company. The description
of such property set forth in the Mortgage is adequate to
constitute the Mortgage a lien thereon. The recording of the
Mortgage in the office of the Chancery Clerk of Claiborne
County, Mississippi, which recording has been duly effected,
and the filing of Uniform Commercial Code financing
statements covering the personal property and fixtures
described in the Mortgage as subject to the lien thereof in
the offices of the Secretary of State of the State of
Mississippi and the Chancery Clerk of Claiborne County,
Mississippi, which filings have been duly effected, and the
filing of continuation statements within six months prior to
the expiration of each five year period from the date of
original filing with respect to such financing statements,
are the only recordings, filings, rerecordings and refilings
required by law in order to perfect and maintain the lien of
the Mortgage on any of the property described therein as
subject thereto; as a result of the recording and filings
referred to above, the Mortgage creates as security for the
Bonds (i) a valid, first lien on all real property and
interests in real property and the improvements thereon
specifically described in the granting clauses of the
Mortgage (and not excepted from the lien of the Mortgage by
the provisions thereof or released under the terms of the
Mortgage) and (ii) a first perfected security interest in all
personal property, interests in personal property and
fixtures specifically described in the granting clauses of
the Mortgage (and not excepted from the lien of the Mortgage
by the provisions thereof or released under the terms of the
Mortgage), in each case subject to no liens, charges or
encumbrances, other than minor defects of the character
aforesaid and Excepted Encumbrances, subject, however, to
liens, defects and encumbrances, if any, existing or placed
thereon at the time of acquisition thereof by the Company;
and the provisions of the Mortgage are effective to extend
the lien thereof to all properties and interests in
properties which the Company may acquire after the date of
the Mortgage, which are of the type referred to in the
Mortgage as intended to be mortgaged thereby when acquired,
and the lien of the Mortgage will extend to all such
properties and interests in properties and will constitute a
valid first lien on all such real property and interests
therein and a first perfected security interest in all such
personal property and interests therein (subject, however, to
Excepted Encumbrances, and to liens, defects and
encumbrances, if any, existing or placed thereon at the time
of acquisition thereof by the Company and except as limited
by bankruptcy law) without the execution and delivery of any
supplemental indenture or other instrument specifically
extending the lien to such real property or interests therein
or the taking of any other action specifically extending the
lien of the Mortgage to such personal property or interests
therein, other than the filing of the continuation statements
within six months prior to the expiration of each five year
period from the date of original filing with respect to the
financing statements as described above.
(10) The filing of Uniform Commercial Code
financing statements in the offices of the Secretary of State
of the State of Mississippi and the Chancery Clerk of the
First Judicial District of Hinds County, Mississippi, and the
filing of continuation statements within six months prior to
the expiration of each five year period from the date of
original filing with respect to such financing statements,
are the only recordings, filings, rerecordings or refilings
in the State of Mississippi required by law in order to
perfect and maintain in favor of the Trustees (a) the
security interest created by the Supplementary Capital Funds
Agreement in the Company's right, title and interest in and
to the Company's rights to receive moneys described in clause
(x) of Section 5.1 thereof and the Collateral described in
Section 5.1 thereof or (b) the security interest created by
the Assignment of Availability Agreement in the Company's
right, title and interest in and to the Collateral described
in Section 1.1 thereof;
(11) (a) The Supplementary Capital Funds
Agreement creates in favor of the Trustees a perfected
security interest in the Company's right, title and interest
in and to the Company's rights to receive the moneys
described in clause (x) of Section 5.1 thereof; the
Supplementary Capital Funds Agreement creates in favor of the
Trustees a perfected security interest in the Company's
right, title and interest in and to the Collateral described
in Section 5.1 thereof pari passu with the security interest
of each Additional Assignee under an Additional Supplementary
Agreement (as such terms are defined in the Supplementary
Capital Funds Agreement) in such Collateral; and (b) the
Assignment of Availability Agreement creates in favor of the
Trustees a perfected security interest in the Company's
right, title and interest in and to the Collateral described
in Section 1.1 thereof pari passu with the security interest
of each Additional Assignee under an Additional Assignment
(as such terms are defined in the Assignment of Availability
Agreement) in such Collateral.
(12) No legal or governmental proceedings to which
the Company is a party, or of which its property is the
subject, that are of a character required to be disclosed in
the Registration Statement and the Prospectus and which are
not disclosed and properly described therein as required are
pending or, to our knowledge, threatened; and we do not know
of any contracts or other documents of the Company of a
character required to be filed as exhibits to the
Registration Statement which are not so filed, or any
contracts or other documents of the Company of a character
required to be disclosed in the Registration Statement which
are not disclosed and properly described therein as required;
the descriptions in the Registration Statement and Prospectus
of statutes, legal and government proceedings and contracts
and other documents are accurate and fairly present the
information required to be shown. Except as disclosed in the
Prospectus, there is no action, suit, proceeding or
investigation pending against or affecting the Company or any
of its assets the result of which would, in our opinion, have
a materially adverse effect on the issuance and sale of the
Bonds in accordance with the Underwriting Agreement.
In passing upon the forms of the Registration
Statement and the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements
relate to us and as set forth in paragraph 3 above. In
connection with the Registration Statement and the
Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel
for the Company, and with the independent certified public
accountants of the Company who examined certain of the
financial statements incorporated by reference in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and our discussions did not
disclose to us any information which gives us reason to
believe that the Registration Statement, at the time the
Company's most recent Annual Report on Form 10-K was filed
with the Commission under the Exchange Act, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Act
and at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus or as to the
statements contained in the Form T-1 and Form T-2 filed as
exhibits to the Registration Statement.
With respect to the opinions set forth in
paragraphs 2 and 4 above, we call your attention to the fact
that the provisions of the Atomic Energy Act of 1954, as
amended, and regulations promulgated thereunder impose
certain licensing and other requirements upon persons (such
as the Trustees under the Mortgage or other purchasers
pursuant to the remedial provisions of the Mortgage) who seek
to acquire, possess or use nuclear production facilities.
As to matters set forth in paragraphs 9 and 10
above and with respect to the maintaining of the security
interests created by the Supplementary Capital Funds
Agreement and the Assignment of Availability Agreement
referred to in paragraph 11 above, we have assumed that there
will be no change in the identity of the Company or in the
place(s) of business or the chief executive office of the
Company.
We have examined the portions of the information
contained in the Registration Statement which are stated
therein to have been made on our authority, and we believe
such information to be correct. We are members of the
Mississippi Bar and do not hold ourselves out as experts on
the laws of any other state. We have examined the opinions
of even date herewith rendered to you by Reid & Priest and
Winthrop, Stimson, Putnam & Roberts, and we concur in the
conclusions expressed therein insofar as they involve
questions of Mississippi law. As to all matters of Arkansas
and New York law, we have relied, in the case of Arkansas
law, upon the opinion of even date herewith addressed to us
of Friday, Eldredge & Clark of Little Rock, Arkansas, and, in
the case of New York law, upon the opinion of even date
herewith addressed to you of Reid & Priest.
The opinion set forth above is solely for the
benefit of the addressee hereof in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any
other person or for any other purpose without our prior
written consent, except that Reid & Priest and Winthrop,
Stimson, Putnam & Roberts may rely on this opinion as to all
matters of Mississippi law in rendering their opinions
required to be delivered under the Underwriting Agreement.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
By:
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest]
April , 1994
SALOMON BROTHERS INC
Seven World Trade Center, 30th Floor
New York, New York 10048
Ladies and Gentlemen:
We, together with Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi, have acted
as counsel for System Energy Resources, Inc. (the "Company")
in connection with the issuance and sale by it pursuant to
the Underwriting Agreement, effective April , 1994 (the
"Underwriting Agreement"), between the Company and you, of
$60,000,000 in aggregate principal amount of its First
Mortgage Bonds, % Series due April 1, ____ (the "Bonds"),
issued pursuant to the Company's Mortgage and Deed of Trust,
dated as of June 15, 1977, as amended and supplemented, the
latest such supplement being the Nineteenth Supplemental
Indenture, dated as of April 1, 1994, to United States Trust
Company of New York and Gerard F. Ganey (successor to Malcolm
J. Hood), as trustees (the "Trustees") (the Mortgage and Deed
of Trust as so amended and supplemented being hereinafter
referred to as the "Mortgage"). We have also acted as counsel
to Entergy Corporation ("Entergy") in connection with the
participation by Entergy in certain transactions related to
the issuance and sale of the Bonds by the Company. This
opinion is rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated
Articles of Incorporation and By-Laws, each as amended, and
Entergy's Certificate of Incorporation and By-Laws, each as
amended; (b) the Underwriting Agreement; (c) the Mortgage;
(d) the Registration Statement and Prospectus (such terms
having the same meaning herein as in the Underwriting
Agreement) filed under the Securities Act of 1933, as amended
(the "Act"); (e) the Availability Agreement dated as of June
21, 1974, as amended (the "Availability Agreement"), between
the Company, Arkansas Power & Light Company ("AP&L"),
Louisiana Power & Light Company ("LP&L"), Mississippi Power &
Light Company ("MP&L") and New Orleans Public Service Inc.
("NOPSI"); (f) the Twenty-ninth Assignment of Availability
Agreement, Consent and Agreement, dated as of April __, 1994
(hereinafter referred to as the "Assignment of Availability
Agreement"), among the Company, the Trustees, AP&L, LP&L,
MP&L and NOPSI; (g) the Capital Funds Agreement dated as of
June 21, 1974, as amended (the "Capital Funds Agreement"),
between the Company and Entergy; (h) the Twenty-ninth
Supplementary Capital Funds Agreement and Assignment, dated
as of April __, 1994 (hereinafter referred to as the
"Supplementary Capital Funds Agreement") among the Company,
the Trustees and Entergy; (i) the records of various
corporate proceedings relating to the authorization, issuance
and sale of the Bonds by the Company, the execution and
delivery by the Company of the Mortgage, the Underwriting
Agreement, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement and the execution and
delivery by Entergy of the Capital Funds Agreement and the
Supplementary Capital Funds Agreement; and (j) the
proceedings before the Securities and Exchange Commission
(the "Commission") under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), relating to the
issuance and sale of the Bonds by the Company, the execution
and delivery by the Company of the Mortgage, the Underwriting
Agreement, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement and the execution and
delivery by Entergy of the Capital Funds Agreement and the
Supplementary Capital Funds Agreement. We have also examined
or caused to be examined such other documents and have
satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. We have
not examined the Bonds, except a specimen thereof, and we
have relied upon a certificate of the United States Trust
Company of New York under the Mortgage as to the execution
and authentication thereof.
Subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the
opinion that:
(1) The Mortgage has been duly and validly
authorized by all necessary corporate action, has been duly
and validly executed and delivered, is a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting enforcement of mortgagees'
and other creditors' rights, and has been duly qualified
under the Trust Indenture Act of 1939, as amended ("TIA"),
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the
Commission.
(2) The statements made in the Prospectus under
the captions "Description of the New Bonds," insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(3) The Bonds have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and are
entitled to the benefit of the security afforded by the
Mortgage.
(4) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly
authorized, executed and delivered by the Company and
constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with
their respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The
Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(5) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Arkansas, has due corporate power and authority to
conduct the business which it is described as conducting in
the Prospectus and to own and operate the properties owned
and operated by it in such business and is duly qualified to
conduct such business in the States of Arkansas and
Mississippi.
(6) Entergy is a duly organized and validly
existing corporation in good standing under the laws of the
State of Delaware and has the corporate power and authority
to conduct its business and to own and operate the properties
owned and operated by it in such business.
(7) The Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly
authorized, executed and delivered by Entergy and constitute
legal, valid and binding obligations of Entergy enforceable
in accordance with their respective terms, except as limited
by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(8) The issuance and sale by the Company of the
Bonds, the execution, delivery and performance by the Company
of the Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement, the execution, delivery and performance by Entergy
of the Capital Funds Agreement and the Supplementary Capital
Funds Agreement, and the consummation of the transactions
contemplated thereby (a) will not violate or conflict with
any provision of the Company's Amended and Restated Articles
of Incorporation or By-laws, each as amended, or Entergy's
Certificate of Incorporation or By-laws, as amended, and (b)
will not violate any provision of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in (other than
as contemplated by the Mortgage, the Assignment of
Availability Agreement and the Supplementary Capital Funds
Agreement) any of the assets of the Company or Entergy
pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having
made due inquiry with respect thereto) to which the Company
or Entergy is a part or which purports to be binding upon the
Company or Entergy or upon any of their respective assets,
and (c) will not violate any provision of any law or
regulation applicable to the Company or Entergy or, to the
best of our knowledge (having made due inquiry with respect
thereto), any provision of any order, writ, judgment or
decree of any governmental instrumentality applicable to the
Company (except that various approvals, authorizations,
orders, licenses, permits, franchises and consents of, and
registrations, declarations and filings with, governmental
authorities may be required to be obtained or made, as the
case may be (1) in connection or compliance with the
provisions of the securities or blue-sky laws of any
jurisdiction, (2) in connection with the construction,
acquisition, ownership, operation and maintenance of the
Grand Gulf Nuclear Electric Generating Station and (3) as set
forth in the exceptions to the opinions set forth in
paragraph 10 below).
(9) Except in each case as to the financial
statements and other financial or statistical data included
or incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the time of its
effectiveness, and the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Act complied as to form in all material
respects with the applicable requirements of the Act and
(except with respect to the parts of the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we do not pass)
the TIA and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, such documents or portions thereof, on the
date first filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and is on
the date hereof effective under the Act and, to the best of
our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d)
of said Act.
(10) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and
sale of the Bonds, the execution, delivery and (except to the
extent indicated below) performance by the Company of the
Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement and the execution, delivery and (except to the
extent indicated below) performance by Entergy of the Capital
Funds Agreement and the Supplementary Capital Funds
Agreement; to the best of our knowledge, said order is in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction) is legally
required to permit the issuance and sale by the Company of
the Bonds pursuant to the Underwriting Agreement; and no
further approval, authorization, consent or other order of
any governmental body is legally required to permit the
performance (other than that relating to the construction,
acquisition, ownership, operation and maintenance of the
Grand Gulf Nuclear Electric Generating Station) by the
Company of its obligations with respect to the Bonds or under
the Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement or the performance by Entergy of its obligations
under the Capital Funds Agreement and the Supplementary
Capital Funds Agreement, except (1) appropriate orders or the
taking of other action by governmental regulatory authorities
having jurisdiction pursuant to valid statutory enactments as
to the issuance by the Company, and the acquisition by
Entergy, of any securities to be issued by the Company to
Entergy pursuant to the Capital Funds Agreement and the
Supplementary Capital Funds Agreement after the date hereof,
and as to the issuance by the Company of any securities to
others other than Entergy pursuant to the Capital Funds
Agreement and the Supplementary Capital Funds Agreement after
the date hereof and (2) with respect to the Availability
Agreement and the Assignment of Availability Agreement (other
than each respective Section 2.2(b) thereof), in the event
that the Company shall determine to sell capacity and/or
energy from any generating unit pursuant to the terms of the
Availability Agreement or the Assignment of Availability
Agreement, appropriate orders, or the taking of other action,
by governmental regulatory authorities having jurisdiction
pursuant to valid statutory enactments as to the specific
terms and provisions under which such capacity and/or energy
shall be made available.
In passing upon the forms of the Registration
Statement and the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements
relate to us and as set forth in paragraph 2 above. In
connection with the Registration Statement and the
Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel
for the Company, and with the independent certified public
accountants of the Company who examined certain of the
financial statements incorporated by reference in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and our discussions did not
disclose to us any information which gives us reason to
believe that the Registration Statement, at the time the
Company's most recent Annual Report on Form 10-K was filed
with the Commission under the Exchange Act, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Act
and at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus or as to the
statements contained in the Form T-1 and Form T-2 filed as
exhibits to the Registration Statement.
We have examined the portions of the information
contained in the Registration Statement which are stated
therein to have been made on our authority, and we believe
such information to be correct. We are members of the New
York Bar and do not hold ourselves out as experts on the laws
of any other state. Accordingly, as to matters involving the
laws of Arkansas and Mississippi, we have relied upon the
below-named opinions of counsel to the extent that such
opinions state an opinion with regard to the matters covered
by this opinion. As to matters of Arkansas law relating to
the Company, we have, with your consent, relied upon an
opinion of even date herewith addressed to us of Messrs.
Friday, Eldredge & Clark of Little Rock, Arkansas. As to
matters of Mississippi law related to the Company, we have,
with your consent, relied upon the opinion of even date
herewith of Wise Carter Child & Caraway, Professional
Association, which has been delivered to you pursuant to the
Underwriting Agreement. [Address Delaware law.]
We have not examined and are expressing no opinion
as to the title of the Company to its properties, the lien of
the Mortgage, the priority of the security interests intended
to be created by the Supplementary Capital Funds Agreement
and the Assignment of Availability Agreement, or the filing
of any document with respect to the Supplementary Capital
Funds Agreement, the Availability Agreement and the
Assignment of Availability Agreement.
With respect to the opinions set forth in
paragraphs 1 and 3 above, we call your attention to the fact
that the provisions of the Atomic Energy Act of 1954, as
amended, and regulations promulgated thereunder impose
certain licensing and other requirements upon persons (such
as the Trustees under the Mortgage or other purchasers
pursuant to the remedial provisions of the Mortgage) who seek
to acquire, possess or use nuclear production facilities.
The opinion set forth above is solely for the
benefit of the addressee hereof in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any
other person or for any other purpose without our prior
written consent, except that Wise Carter Child & Caraway,
Professional Association, may rely on this opinion as to
matters of New York law in rendering their opinion related to
System Energy required to be delivered under the Underwriting
Agreement.
Very truly yours,
REID & PRIEST
<PAGE>
EXHIBIT C
[Letterhead of Friday, Eldredge & Clark]
April , 1994
REID & PRIEST
40 West 57th Street
New York, New York 10019
WISE CARTER CHILD & CARAWAY,
Professional Association
Heritage Building
P.O. Box 651
Jackson, Mississippi 39205
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc. (the "Company") in connection with the
issuance and sale by it, pursuant to the Underwriting
Agreement, effective April , 1994 (the "Underwriting
Agreement") between the Company and the underwriter named
therein of $60,000,000 in aggregate principal amount of its
First Mortgage Bonds, % Series due April 1, ____ (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed
of Trust, dated as of June 15, 1977, as amended and
supplemented, the latest such supplement being the Nineteenth
Supplemental Indenture, dated as of April 1, 1994, to United
States Trust Company of New York and Gerard F. Ganey
(successor to Malcolm J. Hood), trustees (the "Trustees")
(the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the
"Mortgage").
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated
Articles of Incorporation and By-Laws, as amended; (b) the
Underwriting Agreement; (c) the Mortgage; (d) the
Registration Statement and Prospectus (such terms having the
same meaning herein as in the Underwriting Agreement) filed
under the Securities Act of 1933, as amended (the "Act"); (e)
the Availability Agreement dated as of June 21, 1974, as
amended (the "Availability Agreement"), between the Company,
Arkansas Power & Light Company ("AP&L"), Louisiana Power &
Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI"); (f)
the Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement, dated as of April __, 1994
(hereinafter referred to as the "Assignment of Availability
Agreement") among the Company, the Trustees, AP&L, LP&L, MP&L
and NOPSI; (g) the Capital Funds Agreement dated as of
June 21, 1974, as amended (the "Capital Funds Agreement"),
between the Company and Entergy Corporation ("Entergy");
(h) the Twenty-ninth Supplementary Capital Funds Agreement
and Assignment, dated as of April __, 1994 (hereinafter
referred to as the "Supplementary Capital Funds Agreement")
among the Company, the Trustees and Entergy; and (i) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds and the
execution and delivery by the Company of the Mortgage, the
Underwriting Agreement, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement and the Supplementary Capital Funds Agreement. We
have also examined or caused to be examined such other
documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the United
States Trust Company of New York as to the execution and
authentication thereof.
Subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the
opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Arkansas and is duly qualified to conduct its
business in such State.
(2) The Mortgage has been duly and validly
authorized by all necessary corporate action, has been duly
and validly executed and delivered and is a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting enforcement of mortgagees'
and other creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(3) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly
authorized, executed and delivered by the Company and
constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with
their respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The
Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(4) The Bonds have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance
or other similar laws affecting enforcement of mortgagees'
and other creditors' rights, and are entitled to the benefit
of the security afforded by the Mortgage.
(5) There is no recording or filing required under
the laws of the State of Arkansas in order to perfect and
maintain in favor of the Trustees (a) the security interest
created by the Supplementary Capital Funds Agreement in the
Company's right, title and interest in and to the Company's
rights to receive moneys described in clause (x) of Section
5.1 thereof and the Collateral described in Section 5.1
thereof or (b) the security interest created by the
Assignment of Availability Agreement in the Company's right,
title and interest in and to the Collateral described in
Section 1.1 thereof.
(6) The issuance and sale by the Company of the
Bonds, the execution, delivery and performance by the Company
of the Mortgage, the Underwriting Agreement, the Availability
Agreement, the Assignment of Availability Agreement, the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement and the consummation of the transactions
contemplated thereby (a) will not violate or conflict with
any provision of the Company's Articles of Incorporation or
By-laws, each as amended, and (b) will not violate or
conflict with any provision of any law or regulation of the
State of Arkansas or any subdivision thereof applicable to
the Company or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
of the State of Arkansas or any subdivision thereof
applicable to the Company.
(7) No approval, authorization, order, license,
permit, franchise or consent of or registration, declaration
or filing with any Arkansas governmental authority is
required in connection with the issuance and sale of the
Bonds or the execution, delivery and performance by the
Company of the Mortgage, the Underwriting Agreement, the
Availability Agreement, the Assignment of Availability
Agreement, the Capital Funds Agreement and the Supplementary
Capital Funds Agreement.
With respect to the opinions set forth in
paragraphs 2 and 4 above, we call your attention to the fact
that the provisions of the Atomic Energy Act of 1954, as
amended, and regulations promulgated thereunder impose
certain licensing and other requirements upon persons (such
as the Trustees under the Mortgage or other purchasers
pursuant to the remedial provisions of the Mortgage) who seek
to acquire, possess or use nuclear production facilities.
Since we have acted herein only as Arkansas counsel
for the Company, the opinions set forth herein relate only to
matters governed by the laws of the State of Arkansas. You
may rely upon this opinion in rendering your respective
opinions required to be delivered under the Underwriting
Agreement, and the underwriter to whom your respective
opinions are addressed may rely upon this opinion in
connection with the Underwriting Agreement and the
transactions contemplated thereunder as though it were
addressed and delivered to such underwriter. This opinion
may not be relied upon in any other manner by any other
person or for any other purpose without our prior written
consent.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT D
[Letterhead of System Company Counsel]
April , 1994
SALOMON BROTHERS INC
Seven World Trade Center, 30th Floor
New York, New York 10048
Ladies and Gentlemen:
We are General Counsel for (the
"Company") and have acted in that capacity in connection with
the transactions contemplated by the Underwriting Agreement,
effective April , 1994 (the "Underwriting Agreement"),
between System Energy Resources, Inc. ("System Energy") and
you, relating to the issuance and sale by System Energy of
$60,000,000 in aggregate principal amount of its First
Mortgage Bonds, % Series due April 1, ____ (the "Bonds").
This opinion is rendered to you at the request of the
Company.
In our capacity as such counsel, we have either
participated in the preparation of or have reviewed (a) the
Availability Agreement dated as of June 21, 1974, as amended
(the "Availability Agreement"), among System Energy, the
Company, [insert names of other System operating companies];
(b) the Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement, dated as of April __, 1994
(hereinafter referred to as the "Assignment of Availability
Agreement") among System Energy, the Trustees under System
Energy's Mortgage and Deed of Trust dated as of June 15,
1977, as supplemented, the Company and [insert names of other
system operating companies]; (c) the records of various
corporate proceedings relating to the Company's participation
in the Availability Agreement and the Assignment of
Availability Agreement; (d) the proceedings before the
Securities and Exchange Commission (the "Commission") under
the Public Utility Holding Company Act of 1935 ("1935 Act")
relating to the Company's participation in the Availability
Agreement and the Assignment of Availability Agreement; and
(e) the Registration Statement and Prospectus (such terms
having the same meaning herein as in the Underwriting
Agreement). We have also examined such other matters as we
have deemed necessary in order to render this opinion.
Subject to the foregoing, we are of the opinion
that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of and has the corporate power and authority to
conduct its business in the State(s) of
and to own and operate the
properties owned and operated by it in such business.
(2) The Availability Agreement and the Assignment
of Availability Agreement have been duly authorized, executed
and delivered by the Company and constitute legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(3) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the Company's
participation in the Availability Agreement and the
Assignment of Availability Agreement; to the best of our
knowledge, such order is in full force and effect; and no
further approval, authorization, consent or other order of
any governmental body is legally required to permit the
execution, delivery and performance by the Company of the
Availability Agreement and the Assignment of Availability
Agreement, except (other than with respect to Section 2.2(b)
of the Assignment of Availability Agreement), in the event
that System Energy shall determine to sell capacity and/or
energy from any generating unit under the terms of the
Availability Agreement or the Assignment of Availability
Agreement, appropriate orders, or the taking of other action,
by governmental regulatory authorities having jurisdiction
pursuant to valid statutory enactments as to the specific
terms and provisions under which capacity and/or energy shall
be made available.
(4) The execution, delivery and performance by the
Company of the Availability Agreement and the Assignment of
Availability Agreement and the consummation of the
transactions contemplated thereby (a) will not violate any
provision of the Company's Restated Articles of Incorporation
or By-laws, each as amended, (b) will not violate or conflict
with any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any of the assets of
the Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any law or regulation applicable to
the Company or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
applicable to the Company (except as set forth in the
exceptions to the opinions set forth in paragraph (3) above).
We have examined the portions of the information
contained or incorporated by reference in the Registration
Statement which are stated therein to have been made on our
authority, and we believe such information to be correct.
The opinion set forth above is solely for the
benefit of the addressee hereof in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any
other person or for any other purpose without our prior
written consent.
Very truly yours,
<PAGE>
EXHIBIT E
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
April __, 1994
SALOMON BROTHERS INC
Seven World Trade Center, 30th Floor
New York, New York 10048
Re: System Energy Resources, Inc.
$60,000,000 Principal Amount of
First Mortgage Bonds, % Series
due April 1, ____
Ladies and Gentlemen:
We have acted as counsel for you as the underwriter
of $60,000,000 in aggregate principal amount of the above-
referenced bonds (the "Bonds"), issued by System Energy
Resources, Inc. (the "Company") under the Company's Mortgage
and Deed of Trust, dated as of June 15, 1977, as heretofore
amended and supplemented by all indentures amendatory thereof
and supplemental thereto, including the Nineteenth
Supplemental Indenture dated as of April 1, 1994 (said
Mortgage and Deed of Trust as so amended and supplemented
being hereinafter referred to as the "Mortgage"), pursuant to
the agreement between you and the Company effective April ,
1994 (the "Underwriting Agreement").
We are members of the Bar of the State of New York
and, for purposes of this opinion, do not hold ourselves out
as experts on the laws of any jurisdiction other than the
State of New York and the United States of America. We have,
with your consent, relied upon opinions of even date herewith
addressed to you (or upon which it is stated that you may
rely) of (i) Friday, Eldredge & Clark, (ii) Wise Carter Child
& Caraway, Professional Association, and (iii) Monroe
& Lemann (A Professional Corporation) as to all matters of
Arkansas, Mississippi, and Louisiana law, respectively,
related to this opinion.
In our capacity as your counsel, we have examined
such documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to enable us to
render this opinion. As to various questions of fact
material to this opinion, we have relied upon representations
of the Company and statements in the Registration Statement
hereinafter mentioned. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, and the correctness of all statements of
fact contained in all such original or copied documents. We
have not examined the Bonds except a specimen thereof, and we
have relied upon a certificate of the United States Trust
Company of New York as to the due authentication and delivery
of the Bonds. We have not examined into, and are expressing
no opinion or belief as to matters relating to, titles to
property, franchises or the nature and extent of the lien of
the Mortgage. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in
the Underwriting Agreement.
Subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the
opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Arkansas.
(2) The Mortgage has been duly and validly
authorized by all necessary corporate action, has been duly
and validly executed and delivered, is a valid and binding
instrument enforceable against the Company in accordance with
its terms, except as limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and is duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and no
proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Securities
and Exchange Commission (the "Commission").
(3) The statements made in the Prospectus under
the captions "Description of the New Bonds," insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Bonds have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(5) The Underwriting Agreement and the Twenty-
ninth Assignment of Availability Agreement, Consent and
Agreement and the Twenty-ninth Supplementary Capital Funds
Agreement and Assignment referred to in paragraph 7(g) of the
Underwriting Agreement, have been duly authorized, executed
and delivered by the parties thereto.
(6) An appropriate order has been entered by the
Commission under the Public Utility Holding Company Act of
1935 granting the application, as amended, with respect to
the Bonds and to the best of our knowledge such order is in
full force and effect.
(7) Except in each case as to the financial
statements and other financial or statistical data included
or incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the time of its
effectiveness, and the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the parts of the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we do not pass)
the TIA and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, such documents or portions thereof, on the
date first filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the
date hereof is, effective under the Securities Act and, to
the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending or threatened
under Section 8 of the Act.
In passing upon the form of the Registration
Statement and the form of the Prospectus, we necessarily
assume the correctness, completeness and fairness of
statements made by the Company and the information included
or incorporated by reference in the Registration Statement
and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set
forth in paragraph (3) hereof. In the course of the
preparation by the Company of the Registration Statement and
the Prospectus, we had conferences with certain officers and
representatives of the Company and of its affiliates, with
counsel for the Company, with the independent certified
public accountants of the Company who examined the financial
statements incorporated by reference in the Registration
Statement, and with your representatives. Our examination of
the Registration Statement and the Prospectus, and our
discussions in the above-mentioned conferences, did not
disclose to us any information which gives us reason to
believe that the Registration Statement, at the time the
Company's most recent Annual Report on Form 10-K was filed
with the Commission under the Exchange Act, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. We do not express any
opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or Prospectus or as
to the statements contained in the Form T-1 and Form T-2
filed as exhibits to the Registration Statement.
With respect to the opinions set forth in
paragraphs 2 and 3 above, we call your attention to the fact
that the provisions of the Atomic Energy Act of 1954, as
amended, and regulations promulgated thereunder impose
certain licensing and other requirements upon persons (such
as the Trustees under the Mortgage or other purchasers
pursuant to the remedial provisions of the Mortgage) who seek
to acquire, possess or use nuclear production facilities.
The opinion set forth above is solely for the
benefit of the addressee hereof in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any
other person or for any other purpose without our prior
written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT F
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
FORM 10-K FOR THE
FISCAL YEAR ENDED
DECEMBER 31, 1993:
EARNINGS RATIOS OF 44 The unaudited ratios of
SYSTEM OPERATING earnings to fixed charges of
COMPANIES AND SYSTEM the Company for each of the
ENERGY (Table of Ratios five years in the period ended
of Earnings to Fixed December 31, 1993, and the
Charges) coverage deficiency in
footnote (f).
MANAGEMENT'S FINANCIAL 289 The amounts of additional
DISCUSSION AND ANALYSIS first mortgage bonds issuable
--LIQUIDITY AND CAPITAL by the Company at December 31,
RESOURCES 1993.
Exhibit B-2(f)
TWENTY-NINTH ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND
AGREEMENT
This Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement (hereinafter referred to as "this
Assignment"), dated as of April 1, 1994, is made by and between
System Energy Resources, Inc. (formerly Middle South Energy,
Inc.) (the "Company"), Arkansas Power & Light Company ("AP&L")
(successor in interest to Arkansas Power & Light Company and
Arkansas-Missouri Power Company ("Ark-Mo")), Louisiana Power &
Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI")
(hereinafter AP&L, LP&L, MP&L, and NOPSI are called individually
a "System Operating Company" and collectively, the "System
Operating Companies"), and United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
and Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee")(the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy Corporation (successor to Middle South
Utilities, Inc.) ("Entergy") owns all of the outstanding common
stock of the Company and each of the System Operating Companies,
and the Company has a 90% undivided ownership and leasehold
interest in Unit 1 of the Grand Gulf Nuclear Electric Station
project ("Project") (more fully described in the "Indenture"
hereinafter referred to).
B. Prior hereto, (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the "Domestic
Agent") and said banks entered into an Amended and Restated Bank
Loan Agreement dated as of June 30, 1977 (the "Amended and
Restated Agreement"), the First Amendment thereto dated as of
March 20, 1980 (the "First Bank Loan Amendment"), the Second
Amended and Restated Bank Loan Agreement dated as of June 15,
1981 as amended by the First Amendment dated as of February 5,
1982 (as so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment) dated as of
June 30, 1977, between the Company, the System Operating
Companies, Ark-Mo and the Domestic Agent (the "First Assignment
of Availability Agreement"), the Company assigned to the Domestic
Agent (for the benefit of such banks), as collateral security for
the above loans, certain of the Company's rights under an
Availability Agreement dated as of June 21, 1974, as amended by
the First Amendment thereto dated as of June 30, 1977 (the
"Original Availability Agreement") between the Company, the
System Operating Companies and Ark-Mo; (iii) the First Bank Loan
Amendment, among other things, increased the amount of the loans
to be made by the banks party thereto to $808,000,000 and
pursuant to the Fourth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of March 20, 1980 (the "Fourth Assignment
of Availability Agreement"), the Company's same rights under the
Original Availability Agreement were further assigned as
collateral security for the loans made under the Amended and
Restated Agreement as amended by the First Bank Loan Agreement;
(iv) the Second Amended and Restated Bank Loan Agreement
provided, among other things, for (a) the making of revolving
credit loans by the banks named therein to the Company from time
to time in an aggregate amount not in excess of $1,311,000,000 at
any one time outstanding, and (b) the making of a term loan by
said banks in an aggregate amount not to exceed $1,311,000,000,
and pursuant to the Fifth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 15, 1981 (the "Fifth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement; and (v) the Second Bank Loan
Second Amendment, among other things, increased the amount of the
loans to be made by the banks party thereto to $1,711,000,000 and
pursuant to the Eighth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 30, 1983 (the "Eighth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement, as amended by the Second Bank
Loan Second Amendment.
C. Prior hereto (i) the Company, the System Operating
Companies, Ark-Mo, and the Trustees for the holders of
$400,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9.25% Series due 1989 (the "First Series Bonds")
issued under a Mortgage and Deed of Trust dated as of June 15,
1977 between the Company and the Trustees (the "Mortgage"), as
supplemented by a First Supplemental Indenture dated as of
June 15, 1977 between the Company and the Trustees (the Mortgage
as so supplemented and as supplemented by a Second Supplemental
Indenture dated as of January 1, 1980, a Third Supplemental
Indenture dated as of June 15, 1981, a Fourth Supplemental
Indenture dated as of June 1, 1984, a Fifth Supplemental
Indenture dated as of December 1, 1984, a Sixth Supplemental
Indenture dated as of May 1, 1985, a Seventh Supplemental
Indenture dated as of June 15, 1985, an Eighth Supplemental
Indenture dated as of May 1, 1986, a Ninth Supplemental Indenture
dated as of May 1, 1986, a Tenth Supplemental Indenture dated as
of September 1, 1986, an Eleventh Supplemental Indenture dated as
of September 1, 1986, a Twelfth Supplemental Indenture dated as
of September 1, 1986, a Thirteenth Supplemental Indenture dated
as of November 15, 1987, a Fourteenth Supplemental Indenture
dated as of December 1, 1987, a Fifteenth Supplemental Indenture
dated as of July 1, 1992, a Sixteenth Supplemental Indenture
dated as of October 1, 1992, a Seventeenth Supplemental Indenture
dated as of October 1, 1992, and an Eighteenth Supplemental
Indenture dated as of April 1, 1993, and as the same may from
time to time hereafter be amended and supplemented in accordance
with its terms, being hereinafter called the "Indenture"),
entered into the Second Assignment of Availability Agreement,
Consent and Agreement dated as of June 30, 1977 (the "Second
Assignment of Availability Agreement") (substantially in the form
of this Assignment) to secure the First Series Bonds; (ii) the
Company, the System Operating Companies, and the Trustees, as
trustees for the holders of $98,500,000 aggregate principal
amount of the Company's First Mortgage Bonds, 12.50% Series due
2000 (the "Second Series Bonds") issued under the Mortgage, as
supplemented by a Second Supplemental Indenture, dated as of
January 1, 1980 between the Company and the Trustees, entered
into the Third Assignment of Availability Agreement, Consent and
Agreement dated as of January 1, 1980 (the "Third Assignment of
Availability Agreement") (also substantially in the form of this
Assignment) to secure the Second Series Bonds; (iii) the Company,
the System Operating Companies and the Trustees, as trustees for
the holders of $300,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 16% Series due 2000 (the "Third
Series Bonds") issued under the Mortgage, as supplemented by a
Fifth Supplemental Indenture dated as of December 1, 1984 between
the Company and the Trustees, entered into the Eleventh
Assignment of Availability Agreement, Consent and Agreement dated
as of December 1, 1984 (the "Eleventh Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Third Series Bonds; (iv) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 15.375% Series due 2000 (the "Fourth Series
Bonds") issued under the Mortgage, as supplemented by a Sixth
Supplemental Indenture, dated as of May 1, 1985 between the
Company and the Trustees, entered into the Thirteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1985 (the "Thirteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Fourth Series Bonds; (v) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Sixteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Seventh Series Bonds; (vi) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9 7/8% Series due 1991 (the "Eighth Series
Bonds") issued under the Mortgage, as supplemented by a Tenth
Supplemental Indenture, dated as of September 1, 1986 between the
Company and the Trustees, entered into the Seventeenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Seventeenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eighth Series Bonds; (vii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $250,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 10 1/2% Series due 1996 (the "Ninth Series
Bonds") issued under the Mortgage, as supplemented by an Eleventh
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Eighteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Eighteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Ninth Series Bonds; (viii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11 3/8% Series due 2016 (the "Tenth Series
Bonds") issued under the Mortgage, as supplemented by a Twelfth
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Nineteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Nineteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Tenth Series Bonds; (ix) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth Assignment
of Availability Agreement, Consent and Agreement dated as of
November 15, 1987 (the "Twentieth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eleventh Series Bonds; (x) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14.34% Series due 1992 (the "Twelfth Series
Bonds") issued under the Mortgage, as supplemented by a
Fourteenth Supplemental Indenture dated as of December 1, 1987
between the Company and the Trustees, entered into the
Twenty-first Assignment of Availability Agreement, Consent and
Agreement dated as of December 1, 1987 (the "Twenty-first
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Twelfth Series Bonds; (xi)
the Company, the System Operating Companies and the Trustees, as
trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series due
2002 (the "Thirteenth Series Bonds") issued under the Mortgage,
as supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Assignment of Availability Agreement, Consent
and Agreement dated as of July 1, 1992 (the "Twenty-fourth
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Thirteenth Series Bonds;
(xii) the Company, the System Operating Companies and the
Trustees, as trustees for the holders of $105,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 6.12%
Series due 1995 (the "Fourteenth Series Bonds") issued under the
Mortgage, as supplemented by a Sixteenth Supplemental Indenture
dated as of October 1, 1992 between the Company and the Trustees,
entered into the Twenty-fifth Assignment of Availability
Agreement, Consent and Agreement dated as of October 1, 1992 (the
"Twenty-fifth Assignment of Availability Agreement") (also
substantially in the form of this Assignment) to secure the
Fourteenth Series Bonds; (xiii) the Company, the System Operating
Companies and the Trustees, as trustees for the holders of
$70,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 8.25% Series due 2002 (the "Fifteenth Series
Bonds") issued under the Mortgage, as supplemented by a
Seventeenth Supplemental Indenture dated as of October 1, 1992
between the Company and the Trustees, entered into a Twenty-sixth
Assignment of Availability Agreement, Consent and Agreement dated
as of October 1, 1992 (the "Twenty-sixth Assignment of
Availability Agreement") (also substantially in the form of this
Assignment) to secure the Fifteenth Series Bonds; and (xiv) the
Company, the System Operating Companies and the Trustees, as
trustees for the holders of $60,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 6% Series due 1998
(the "Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
a Twenty-seventh Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1993 (the "Twenty-seventh
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Sixteenth Series Bonds.
D. The Original Availability Agreement has been
amended by the First Amendment thereto dated as of June 30, 1977,
the Second Amendment thereto dated June 15, 1981, the Third
Amendment thereto dated June 28, 1984 and the Fourth Amendment
thereto dated as of June 1, 1989 (the Original Availability
Agreement, as so amended and as it may be further amended and
supplemented, is hereinafter referred to as the "Availability
Agreement").
E. Unit No. 1 and Unit No. 2 of the Project have been
designated by the Company and the System Operating Companies as
being subject to the Availability Agreement and as being System
Energy Generating Units (as defined in the Availability
Agreement) thereunder.
F. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent"), and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Assignment of Availability Agreement, Consent and
Agreement (substantially in the form of this Assignment) dated as
of February 5, 1982 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Sixth Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of said banks), as collateral security for
the above loans, certain of the Company's rights under the
Availability Agreement. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of February 18, 1983
between the Company, the System Operating Companies and the
Eurodollar Agent (the "Seventh Assignment of Availability
Agreement"), the Company assigned to the Eurodollar Agent (for
the benefit of the Eurodollar Banks), as collateral security for
such loans, certain of the Company's rights under the
Availability Agreement.
G. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement"),
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1983
between the Company, the System Operating Companies, the Bank and
Deposit Guaranty National Bank, as trustee (the "Ninth Assignment
of Availability Agreement"), the Company assigned to the Bank and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series A
Reimbursement Agreement and the Series A Bonds, certain of the
Company's rights under the Availability Agreement.
H. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement"), which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of June 1, 1984 between the Company, the
System Operating Companies, the Bank and Deposit Guaranty
National Bank, as trustee (the "Tenth Assignment of Availability
Agreement"), the Company assigned to the Bank and Deposit
Guaranty National Bank, as trustee, as collateral security for
the Company's obligations under the Series B Reimbursement
Agreement and the Series B Bonds, certain of the Company's rights
under the Availability Agreement.
I. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks"), were parties to a
letter of credit and reimbursement agreement dated as of
December 1, 1984 (the "Series C Reimbursement Agreement") which
provided, among other things, for the issuance by the Banks for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series C (the "Series C Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1984 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Twelfth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1984
between the Company, the System Operating Companies, the Banks
and Deposit Guaranty National Bank, as trustee (the "Twelfth
Assignment of Availability Agreement"), the Company assigned to
the Banks and Deposit Guaranty National Bank, as trustee, as
collateral security for the Company's obligations under the
Series C Reimbursement Agreement and the Series C Bonds, certain
of the Company's rights under the Availability Agreement.
J. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$47,208,334 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series A (the "Fifth Series
Bonds") issued under the Mortgage, as supplemented by a Seventh
Supplemental Indenture dated as of June 15, 1985 between the
Company and the Trustees, entered into the Fourteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
June 15, 1985 (the "Fourteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) (the "Series D
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of June 15, 1985 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fourteenth Assignment
of Availability Agreement, the Company assigned to the Trustees
and Deposit Guaranty National Bank, as collateral security for
the Company's obligations under the Series D Bonds, certain of
the Company's rights under the Availability Agreement.
K. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$95,643,750 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series B (the "Sixth Series
Bonds") issued under the Mortgage, as supplemented by an Eighth
Supplemental Indenture dated as of May 1, 1986 between the
Company and the Trustees, entered into the Fifteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Fifteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) (the "Series E
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of May 1, 1986 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fifteenth Assignment of
Availability Agreement, the Company assigned to the Trustees and
Deposit Guaranty National Bank, as collateral security for the
Company's obligations under the Series E Bonds, certain of the
Company's rights under the Availability Agreement.
L. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Stephen M.
Carta (Stephen J. Kaba, successor)(collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto each
dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein (the "1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOC. Pursuant to the Twenty-second
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment), dated as of
December 1, 1988 (the "Twenty-second Assignment of Availability
Agreement"), the Company assigned to Chemical Bank (the
"Administrating Bank"), as collateral security for the Company's
obligations under the Reimbursement Agreement, certain of the
Company's rights under the Availability Agreement.
M. The Company, the System Operating Companies and
Chemical Bank entered into the Twenty-third Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of January 11, 1991
("Twenty-third Assignment of Availability Agreement") in
connection with the execution and delivery of the First Amendment
to Reimbursement Agreement dated as of January 11, 1991 (the
"First Amendment to Reimbursement Agreement") (the Reimbursement
Agreement, as amended by the First Amendment to Reimbursement
Agreement, is herein called the First Amended Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by The Bank of Tokyo, Ltd., Los Angeles Agency (the
"Funding Bank"), for the account of the Company, of irrevocable
transferable letters of credit ("1991 LOCs") to the Owner
Participants to secure certain obligations of the Company to the
Owner Participants, such 1991 LOCs to be substantially in the
form of Exhibit A to the First Amended Reimbursement Agreement,
with maximum amounts of $116,601,440 and $29,150,360; (ii) for
the reimbursement to the Funding Bank by the banks named in the
First Amended Reimbursement Agreement (the "Participating Banks")
for all drafts paid by the Funding Bank under any 1991 LOC; and
(iii) for the reimbursement by the Company to the Funding Bank
for the benefit of the Participating Banks of sums equal to all
drafts paid by the Funding Bank under any 1991 LOC.
N. The Company, the System Operating Companies and
Chemical Bank entered into the Twenty-eighth Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of December 17, 1993
("Twenty-eighth Assignment of Availability Agreement") in
connection with the execution and delivery of the Second
Amendment to Reimbursement Agreement, dated as of December 17,
1993 ("Second Amendment to Reimbursement Agreement")(the First
Amended Reimbursement Agreement, as amended by the Second
Amendment to Reimbursement Agreement, is herein called the
"Second Amended Reimbursement Agreement") that provided, among
other things, (i) for the issuance by the Funding Bank, for the
account of the Company, of irrevocable transferable letters of
credit ("1993 LOCs") to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such 1993
LOCs to be substantially in the form of Exhibit A to the Second
Amended Reimbursement Agreement with maximum amounts of
$132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1993 LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the Participating
Banks of sums equal to all drafts paid by the Funding Bank under
any 1993 LOC.
O. The Company seeks to finance part of the capital
costs related to the Project with borrowed funds and, to that
end, the Company has entered into an Underwriting Agreement with
Salomon Brothers Inc, dated as of April 21, 1994, providing,
among other things, for the issue and sale by the Company of
$60,000,000 aggregate principal amount of First Mortgage Bonds, 7
5/8% Series due 1999 (the "Seventeenth Series Bonds"), to be
issued under and secured pursuant to the Indenture as heretofore
supplemented and as further supplemented by a Nineteenth
Supplemental Indenture dated as of April 1, 1994.
P. The Company, by this instrument, wishes to (i)
provide for the assignment by the Company to the Trustees of
certain of the Company's rights under the Availability Agreement,
and (ii) create enforceable rights hereunder in the Trustees, all
as hereunder set forth.
Q. The System Operating Companies are willing to, and
by this instrument do, supplement their undertakings under the
Availability Agreement in the same manner as in the Assignments
of Availability Agreement.
R. The Company, Entergy and the System Operating
Companies have joined in an Application-Declaration on Form U-1,
as amended and supplemented to date, in File No. 70-7946, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Assignment and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of execution and delivery hereof.
S. All things necessary to make this Assignment the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Security Assignment and Agreement
1.1 Assignment and Creation of Security Interest. As
security for (i) the due and punctual payment of the interest
(including, if and to the extent permitted by law, interest on
overdue principal, premium and interest) and premium, if any, on,
and the principal of, the Seventeenth Series Bonds (whether at
maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise) and (ii) the due and punctual payment
of all fees and costs, expenses and other amounts which may
become payable by the Company under the Indenture which are a
charge on the trust estate thereunder which is superior to the
charge thereon for the benefit of the Seventeenth Series Bonds,
together in each case with all costs of collection thereof (all
such amounts referred to in the foregoing clauses (i) and (ii)
being hereinafter collectively referred to as "Obligations
Secured Hereby"), the Company hereby assigns to the Trustees, and
creates a security interest in favor of the Trustees in all of
the Company's rights to receive all moneys paid or to be paid to
the Company pursuant to Section 4 of the Availability Agreement
or advances pursuant to Section 2.2(b) hereof, but only to the
extent that such payments or advances are attributable to
payments or advances with respect to Unit No. 1 or Unit No. 2,
and all other claims, rights (but not obligations or duties),
powers, privileges, interests and remedies of the Company,
whether arising under the Availability Agreement or this
Assignment or by statute or in law or in equity or otherwise,
resulting from any failure by any System Operating Company to
perform its obligations under the Availability Agreement or this
Assignment, but only to the extent that such claims, rights,
powers, privileges, interests and remedies relate to Unit No. 1
and Unit No. 2, all to the extent, but only to the extent,
required for the payment when due and payable of Obligations
Secured Hereby, together in each case with full power and
authority, in the name of the Trustees (or either of them), or
the Company as assignor, or otherwise, to demand payment of,
enforce, collect, receive and receipt for any and all of the
foregoing (the rights, claims, powers, privileges, interests and
remedies referred to above being hereinafter sometimes called the
"Collateral").
1.2 Other Agreements.
(a) The Company has not and will not assign the rights
assigned in Section 1.1 as security for any indebtedness other
than the Obligations Secured Hereby, except as recited and
provided in paragraph (b) of this Section 1.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain banks
referred to in Whereas Clause B hereof by the First, Fourth,
Fifth and Eighth Assignments of Availability Agreement,
respectively, (ii) the First Series Bonds, the Second Series
Bonds, the Third Series Bonds, the Fourth Series Bonds, the
Seventh Series Bonds, the Eighth Series Bonds, the Ninth Series
Bonds, the Tenth Series Bonds, the Eleventh Series Bonds, the
Twelfth Series Bonds, the Thirteenth Series Bonds, the Fourteenth
Series Bonds, the Fifteenth Series Bonds and the Sixteenth Series
Bonds, as referred to in Whereas Clause C hereof by the Second,
Third, Eleventh, Thirteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-first, Twenty-fourth, Twenty-fifth,
Twenty-sixth and Twenty-seventh Assignments of Availability
Agreement, respectively, (iii) loans made by certain banks as
referred to in Whereas Clause F hereof by the Sixth and Seventh
Assignments of Availability Agreement, respectively, (iv) the
obligations under the Series A Reimbursement Agreement referred
to in Whereas Clause G hereof by the Ninth Assignment of
Availability Agreement, (v) the obligations under the Series B
Reimbursement Agreement as referred to in Whereas Clause H hereof
by the Tenth Assignment of Availability Agreement, (vi) the
obligations under the Series C Reimbursement Agreement as
referred to in Whereas Clause I hereof by the Twelfth Assignment
of Availability Agreement, (vii) the Fifth Series Bonds as
referred to in Whereas Clause J hereof by the Fourteenth
Assignment of Availability Agreement, (viii) the Sixth Series
Bonds as referred to in Whereas Clause K hereof by the Fifteenth
Assignment of Availability Agreement, (ix) the obligations under
the Reimbursement Agreement as referred to in Whereas Clause L
hereof by the Twenty-second Assignment of Availability Agreement,
(x) the obligations under the First Amended Reimbursement
Agreement as referred to in Whereas Clause M hereof by the
Twenty-third Assignment of Availability Agreement, and (xi) the
obligations under the Second Amended Reimbursement Agreement, as
referred to in Whereas Clause N hereof by the Twenty-eighth
Assignment of Availability Agreement, and shall be entitled to
secure the interest and premium, if any, on, and the principal
of, other Indebtedness for Borrowed Money of the Company issued
by the Company to any person (except Entergy or any affiliate of
Entergy) to finance the cost of the Project (including, without
limitation, Indebtedness outstanding under the Indenture) or to
refund (including any successive refundings) any such
Indebtedness (including such Indebtedness now outstanding) issued
for such purpose, the incurrence of which Indebtedness is at the
time permitted by the Indenture (herein, together with such
Indebtedness now outstanding, called "Additional Indebtedness"),
by entering into an assignment of availability agreement, consent
and agreement including, without limitation, the First through
Twenty-eighth Assignments of Availability Agreement (each being
hereinafter called an "Additional Assignment") with the holders
of such Additional Indebtedness or representatives of or trustees
for such holders, or both, as the case may be (herein called an
"Additional Assignee"). Each Additional Assignment hereafter
entered into shall be substantially in the form of this
Assignment, except that there shall be substituted in such
Additional Assignment appropriate references to the Additional
Indebtedness secured thereby, the applicable Additional Assignee
and the agreement or instrument under which such Additional
Indebtedness is issued in lieu of the references herein to the
Seventeenth Series Bonds, the Trustees and the Indenture,
respectively, and such Additional Assignment may contain such
other provisions as are not inconsistent with this Assignment and
do not adversely affect the rights hereunder of the holders of
the Seventeenth Series Bonds or the Trustees, or any of them.
(c) Notwithstanding any provision of this Assignment
to the contrary, or any priority in time of creation, attachment
or perfection of a security interest, pledge or lien by the
Trustees, or any provision of or filing or recording under the
Uniform Commercial Code or any other applicable law of any
jurisdiction, the Trustees agree that the claims of the Trustees
hereunder with respect to the Availability Agreement and any
security interest, pledge or lien in favor of the Trustees now or
hereafter existing in and to the Collateral shall rank pari passu
with the claims of each Additional Assignee under the
corresponding provisions of the Additional Assignment to which it
is a party with respect to the Availability Agreement and any
security interest, pledge or lien in favor of such Additional
Assignee under such Additional Assignment now or hereafter
existing in and to the Collateral, irrespective of the time or
times at which prior, concurrent or subsequent Additional
Assignments are entered into in accordance with Section 1.2(b)
hereof.
1.3 Payments to the Corporate Trustee. The Company
agrees that, if and whenever it shall make a demand to a System
Operating Company for any payment pursuant to Section 4 of the
Availability Agreement or advances pursuant to Section 2.2(b)
hereof with respect to Unit No. 1 or Unit No. 2, it will
separately identify the respective portions of such payment or
advance, if any, required for (i) the payment of Obligations
Secured Hereby and (ii) the payment of any other amounts then due
and payable in respect of Additional Indebtedness and instruct
such System Operating Company (subject to the provisions of
Section 1.4 hereof) to pay or cause to be paid the amount so
identified as required for the payment of Obligations Secured
Hereby directly to the Corporate Trustee. Any payments made by
any System Operating Company pursuant to Section 4 of the
Availability Agreement or advances pursuant to Section 2.2(b)
hereof with respect to Unit No. 1 or Unit No. 2 shall, to the
extent necessary to satisfy in full the assignment set forth in
Section 1.1 of this Assignment and the corresponding assignments
set forth in the Additional Assignments, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
1.4 Payments to the Company. Notwithstanding the
provisions of Sections 1.1 and 1.3, unless and until the
Corporate Trustee shall have given written notice to the System
Operating Companies of the occurrence and continuance of any
Default (as defined in the Indenture), all moneys paid or to be
paid to the Company pursuant to Section 4 of the Availability
Agreement or advanced pursuant to Section 2.2(b) hereof with
respect to Unit No. 1 and Unit No. 2 shall be paid or advanced
directly to the Company and the Company need not separately
identify the respective portions of payments or advances as
provided in Section 1.3 hereof, provided that notice as to the
amount of any such payments or advances shall be given by the
Company to the Corporate Trustee simultaneously with the demand
by the Company for any such payments or advances. If the
Corporate Trustee shall have duly notified the System Operating
Companies of the occurrence of any such Default, such payments or
advances shall be made in the manner and in the amounts specified
in Section 1.3 hereof until the Corporate Trustee shall by
further notice to the System Operating Companies give permission
that all such payments or advances may be made again to the
Company, such permission being subject to revocation by a
subsequent notice pursuant to the first sentence of this
Section 1.4. The Corporate Trustee shall give such permission if
no such Default continues to exist.
1.5 Definitions. For the purposes of this Assignment,
the following terms shall have the following meanings:
(a) the term "Indebtedness for Borrowed Money" shall mean
the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project; and
(b) the term "Subordinated Indebtedness of the Company"
shall mean indebtedness marked on the books of the Company as
subordinated and junior in right of payment to the Obligations
Secured Hereby (as defined in Section 1.1 hereof) to the extent
and in the manner set forth below:
(i) if there shall occur a Default (as defined in the
Indenture), then so long as such Default shall be continuing and
shall not have been cured or waived, or unless and until all the
Obligations Secured Hereby shall have been paid in full in money
or money's worth at the time of receipt, no payment of principal
and premium, if any, or interest shall be made upon Subordinated
Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar proceedings, or any
receivership proceedings in connection therewith, relative to the
Company or its creditors or its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy proceedings, then the Obligations Secured Hereby shall
first be paid in full in money or money's worth at the time of
receipt, or payment thereof shall have been provided for, before
any payment on account of principal, premium, if any, or interest
is made upon Subordinated Indebtedness of the Company.
ARTICLE II.
Consent to Assignment by the System Operating
Companies and Other Agreements
2.1 Consent to Assignment by the System Operating
Companies.
(a) Each System Operating Company hereby consents to
the assignment under Article I and agrees with the Trustees to
make payments or advances to the Corporate Trustee in the amounts
and in the manner specified in Section 1.3 at the Corporate
Trustee's address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the
Availability Agreement and Section 2.2(g) hereof, each System
Operating Company agrees that all payments or advances made to
the Corporate Trustee or to the Company as contemplated by
Sections 1.3 and 1.4 hereof shall be final as between such System
Operating Company and the Corporate Trustee or the Company, as
the case may be, and that it will not seek to recover from the
Corporate Trustee for any reason whatsoever any moneys paid or
advanced to the Corporate Trustee by virtue of this Assignment,
but the finality of any such payment or advance shall not prevent
the recovery of any overpayments or mistaken payments or excess
advances or mistaken advances which may be made by such System
Operating Company unless a Default has occurred and is
continuing, in which case any such overpayment or mistaken
payment or excess advances or mistaken advances shall not be
recoverable but shall constitute Subordinated Indebtedness of the
Company to such System Operating Company.
2.2 Other Agreements. Anything in the Availability
Agreement to the contrary notwithstanding, it is hereby agreed as
follows:
(a) Regardless of whether any person or persons (other
than the System Operating Companies) shall become a Party or
Parties (as such terms are defined in the Availability Agreement)
to the Availability Agreement, the System Operating Companies
shall at all times be obligated to make the payments required
pursuant to Section 4 of the Availability Agreement and to make
advances pursuant to Section 2.2(b) hereof with respect to Unit
No. 1 and Unit No. 2 to the same extent as if the System
Operating Companies were the only Parties to the Availability
Agreement, except to the extent and only to the extent that such
payments or advances are actually made by such person or persons.
In the event that any such person shall become a Party to the
Availability Agreement, the Company and the System Operating
Companies shall cause such person, at the time when such person
becomes a Party to the Availability Agreement, to consent by
written instrument to the terms and provisions of this
Assignment, and thereupon such person shall be bound by all of
the terms and provisions of this Assignment (other than the
provisions of the preceding sentence) to the same extent as if
named a System Operating Company herein. A copy of such written
instrument, in form and substance satisfactory to the Corporate
Trustee, shall promptly be delivered to the Corporate Trustee
together with an opinion of counsel to the effect that such
instrument complies with the requirements hereof and constitutes
a valid, legally binding obligation of such person.
(b) In the event and to the extent that any action by
any governmental regulatory authority, including, without
limitation, the Federal Energy Regulatory Commission or any
successor thereto, shall have the effect of prohibiting the
System Operating Companies from making any payments which would
otherwise be required pursuant to Section 4 of the Availability
Agreement (as supplemented hereby) with respect to Unit No. 1 and
Unit No. 2, the System Operating Companies shall make advances to
the Company at the same time, and in the same amounts as such
prohibited payments and all such advances shall constitute
Subordinated Indebtedness of the Company.
(c) Each System Operating Company agrees that (i) all
Indebtedness for Borrowed Money of the Company to such System
Operating Company and all amounts paid by such System Operating
Company pursuant to Section 4 of the Availability Agreement or
advanced pursuant to Section 2.2(b) hereof shall constitute
Subordinated Indebtedness of the Company and (ii) no such
Subordinated Indebtedness of the Company shall be transferred or
assigned (including by way of security) to any person (other than
to a successor of such System Operating Company by way of merger,
consolidation or the acquisition by such person of all or
substantially all of such System Operating Company's assets). The
Company agrees that it shall duly record all Subordinated
Indebtedness of the Company as such on its books.
(d) The obligations of each System Operating Company
to make the payments to the Company pursuant to the provisions of
Section 4 of the Availability Agreement and the advances pursuant
to Section 2.2(b) hereof with respect to Unit No. 1 and Unit No.
2 having heretofore been authorized by the SEC Orders (and no
other authorization by any governmental regulatory authority
being required other than, with respect to the payments pursuant
to the provisions of Section 4 of the Availability Agreement,
appropriate orders, or the taking of other action, by the Federal
Energy Regulatory Commission or any successor thereto as to
specific terms and provisions under which power and energy
associated therewith available at the Project shall be made
available by the Company to the System Operating Companies and
pursuant to which the System Operating Companies shall agree to
pay the Company for the right to receive such power and the
energy associated therewith), each System Operating Company
agrees that its duty to perform such obligations shall be
absolute and unconditional, (a) whether or not such System
Operating Company shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit such System Operating Company to perform its other duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement (as defined in the Availability
Agreement), (b) whether or not the Company shall have received
all authorizations of governmental regulatory authorities
necessary at the time to permit the Company to perform its duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement, (c) whether or not any authorizations
referred to in the foregoing clauses (a) and (b) continue, at the
time, in effect, (d) whether or not, at any time in question, the
Company shall have performed its duties and obligations
hereunder, under the Availability Agreement or under the System
Agreement, (e) whether or not the System Agreement shall, from
time to time, be amended, modified or supplemented or shall be
canceled or terminated or such System Operating Company shall
have withdrawn therefrom, (f) whether or not the Project shall be
maintained in commercial operation, energy from the Project is
being produced or delivered or is available (including, without
limitation, delivery or availability to such System Operating
Company), an abandonment of the Project shall have occurred or
the Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (g) whether or not the Company shall be
solvent, (h) whether or not the Company or such System Operating
Company shall continue to be subsidiary companies of Entergy (as
said term is defined in Section 2(a)(8) of the Public Utility
Holding Company Act of 1935), (i) regardless of any event of
force majeure, and (j) regardless of any other circumstance,
happening, condition or event whatsoever, whether or not similar
to any of the foregoing.
(e) In the event that Entergy shall cease to own at
least a majority of the common stock of any System Operating
Company, the obligations of such System Operating Company
hereunder and under the Availability Agreement shall not be
increased by an amendment to or modification of the terms and
provisions of the Indenture or the Seventeenth Series Bonds
unless such System Operating Company shall have consented in
writing to such amendment or modification.
(f) The obligations of each System Operating Company
under Section 4 of the Availability Agreement and Section 2.2(b)
hereof to make the payments or advances specified therein or
herein with respect to Unit No. 1 and Unit No. 2 to the Company
shall not be subject to any abatement, reduction, limitation,
impairment, termination, set-off, defense, counterclaim or
recoupment whatsoever or any right to any thereof (including, but
not limited to, abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and recoupments
for or on account of any past, present or future indebtedness of
the Company to such System Operating Company or any claim by such
System Operating Company against the Company, whether or not
arising hereunder, under the Availability Agreement or under the
System Agreement and whether or not arising out of any action or
nonaction on the part of the Company or the Trustees (or either
of them), including any disposition of the Project or any part
thereof pursuant to the Indenture, requirements of governmental
authorities, actions of judicial receivers or trustees or
otherwise and whether or not arising from willful or negligent
acts or omissions). The foregoing, however, shall not, subject
to the provisions of paragraph (c) of this Section 2.2, affect in
any other way any rights and remedies of such System Operating
Company with respect to any amounts owed to such System Operating
Company by the Company or any such claim by such System Operating
Company against the Company. The obligations and liabilities of
each System Operating Company hereunder or under the Availability
Agreement shall not be released, discharged or in any way
affected by any reorganization, arrangement, compromise,
composition or plan affecting the Company or any change, waiver,
extension, indulgence or other action or omission in respect of
any indebtedness or obligation of the Company or such System
Operating Company, whether or not the Company or such System
Operating Company shall have had any notice or knowledge of any
of the foregoing. Neither failure nor delay by the Company, the
Trustees (or either of them), or any holder or representative of
any holder of the Seventeenth Series Bonds to exercise any right
or remedy provided herein or by statute or at law or in equity
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy preclude any other
or further exercise thereof, or the exercise of any other right
or remedy. Each System Operating Company also hereby irrevocably
waives, to the extent that it may do so under applicable law, any
defense based on the adequacy of a remedy at law which may be
asserted as a bar to the remedy of specific performance in any
action brought against such System Operating Company for specific
performance of this Assignment or the Availability Agreement by
the Company, by the Trustees (or either of them), by holders of
the Seventeenth Series Bonds or for their benefit by a receiver
or trustee appointed for the Company or in respect of all or a
substantial part of the Company's assets under the bankruptcy or
insolvency law of any jurisdiction to which the Company is or its
assets are subject. Anything in this Section 2.2(f) to the
contrary notwithstanding, no System Operating Company shall be
precluded from asserting as a defense against any claim made
against such System Operating Company upon any of its obligations
hereunder and under the Availability Agreement that it has fully
performed such obligations in accordance with the terms of this
Assignment and the Availability Agreement.
(g) Each System Operating Company shall, subject to
the provisions of Section 2.2(c) hereof, be proportionately
subrogated to all rights of the Trustees and the holders of the
Seventeenth Series Bonds against the Company in respect of any
amounts paid or advanced by such System Operating Company
pursuant to the provisions of this Assignment and the
Availability Agreement and applied to the payment of the
Obligations Secured Hereby. The Trustees agree that they will
not deal with the Company, or any security for the Seventeenth
Series Bonds, in such a manner as to prejudice such rights of any
System Operating Company.
ARTICLE III.
Term
This Assignment shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of the
System Operating Companies and the Company set forth in this
Assignment are exclusively for the benefit of, and may be
enforced only by, the Trustees (or either of them), by the
holders of the Seventeenth Series Bonds as provided in the
Indenture, or for their benefit by a receiver or trustee for the
Company or in respect of all or a substantial part of its assets
under the bankruptcy or insolvency law of any jurisdiction to
which the Company is or its assets are subject.
ARTICLE IV.
Assignment
Neither this Assignment nor the Availability Agreement
nor any interest herein or therein may be assigned, transferred
or encumbered by any of the parties hereto or thereto, except
transfer or assignment by the Trustees (or either of them) to
their respective successors in accordance with Article XVII of
the Indenture, except as otherwise provided in Article I hereof
and except that
(i) in the event that any System Operating Company
shall consolidate with or merge with or into another corporation
or shall transfer to another corporation or other person all or
substantially all of its assets, this Assignment and the
Availability Agreement shall be transferred by such System
Operating Company to and shall be binding upon the corporation
resulting from such consolidation or merger or the corporation or
other person to which such transfer is made and, as a condition
to such consolidation, merger or other transfer, such corporation
or other person shall deliver to the Company and the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of such System Operating Company's
obligations and liabilities under this Assignment and the
Availability Agreement and an opinion of counsel to the effect
that such instrument complies with the requirements hereof and
thereof and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person; and
(ii) in the event that the Company shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Assignment and the Availability Agreement
shall be transferred by the Company to and shall be binding upon
the corporation resulting from such consolidation or merger or
the corporation or other person to which such transfer is made
and, as a condition to such consolidation, merger or other
transfer, such corporation or other person shall deliver to the
Corporate Trustee a written assumption, in form and substance
satisfactory to the Corporate Trustee, of the Company's
obligations and liabilities under this Assignment and the
Availability Agreement and an opinion of counsel to the effect
that such instrument complies with the requirements hereof and
thereof and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person.
ARTICLE V.
Amendments
5.1 Restrictions on Amendments. Neither this
Assignment nor the Availability Agreement may be amended, waived,
modified, discharged or otherwise changed orally. This
Assignment and the Availability Agreement may be amended, waived,
modified, discharged or otherwise changed only by a written
instrument which has been signed by all the parties hereto, in
the case of this Assignment, or by the persons specified in
Section 11 of the Availability Agreement, in the case of the
Availability Agreement, and which has been approved by the
holders of more than 50% in principal amount of the Seventeenth
Series Bonds Outstanding (as defined in the Indenture) at the
time of such consent or which does not materially adversely
affect the rights of the Trustees or the holders of the
Seventeenth Series Bonds or which is necessary in order to
qualify the Indenture under the Trust Indenture Act of 1939, as
contemplated by Section 20.04 of the Mortgage, provided, however,
that (i) without the written consent of the holders of all the
Seventeenth Series Bonds affected thereby, no amendment, waiver,
modification, discharge or other change in or to this Assignment
or the Availability Agreement shall be made which shall change
the terms of this Section 5.1 and (ii) no such amendment, waiver,
modification, discharge or other change shall be made which shall
modify, without the written consent of each of the Trustees, the
rights, duties or immunities of the Trustees or either of them.
5.2 The Trustees' Execution. The Trustees shall, at
the request of the Company, execute any instrument amending,
waiving, modifying, discharging or otherwise changing this
Assignment, or any consent to the execution of any instrument
amending, waiving, modifying, discharging or otherwise changing
the Availability Agreement (a) as to which the Corporate Trustee
shall have received an opinion of counsel to the effect that such
instrument has been duly authorized by each person executing the
same and is permitted by the provisions of Section 5.1 hereof and
that this Assignment, or the Availability Agreement, as the case
may be, as amended, waived, modified, discharged or otherwise
changed by such instrument, constitutes valid, legally binding
and enforceable obligations of the Company and each of the System
Operating Companies, and (b) which shall have been executed by
the Company and each of the System Operating Companies. The
Trustees, and each of them, shall be fully protected in relying
upon the aforesaid opinion.
ARTICLE VI.
Notices
6.1 Notices, etc., in Writing. All notices, consents,
requests and other documents authorized or permitted to be given
pursuant to this Assignment shall be given in writing and either
personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Treasurer
If to Arkansas Power & Light Company, to:
425 West Capitol Avenue
Little Rock, Arkansas 72201
Attention: President
If to Louisiana Power & Light Company, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Mississippi Power & Light Company, to:
308 East Pearl Street
Jackson, Mississippi 39201
Attention: President
If to New Orleans Public Service Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to the Corporate Trustee, to:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Gerard F. Ganey
If to the Individual Trustee, to:
Gerard F. Ganey
c/o United States Trust Company of New York
114 West 47th Street
New York, New York 10036
with copies to each other party.
6.2 Delivery, etc. Notices, consents, requests and
other documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 6.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VII.
Enforcement
7.1 Indenture Terms and Conditions. The Trustees, and
each of them, enter into and accept this Assignment upon the
terms and conditions set forth in Article XVII of the Indenture
with the same force and effect as if those terms and conditions
were repeated at length herein and made applicable to the
Trustees, and each of them, in respect of this Assignment and the
trusts hereunder and in respect of any action taken, suffered or
omitted to be taken by the Trustees, or either of them,
hereunder. Nothing in this Assignment shall affect any right or
remedy of the Company or any System Operating Company against the
Trustees, or either of them (other than those specifically waived
herein), for breach or violation of any of the obligations or
duties of the Trustees assumed or undertaken in this Assignment.
Without limiting the generality of the foregoing, the Trustees,
and each of them, assume no responsibility as to the validity or
enforceability hereof or for the correctness of the recitals of
fact contained herein or in the Availability Agreement, which
shall be taken as the statements, representations and warranties
of the Company and the System Operating Companies.
7.2 Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, the Trustees
(or either of them) may proceed, either in their, its or his own
name or as trustees or trustee of an express trust or otherwise,
to protect and enforce the rights of the Trustees (or either of
them) and those of the Company under this Assignment and the
Availability Agreement by suit in equity, action at law or other
appropriate proceedings, whether for the specific performance of
any covenant or agreement contained herein or in the Availability
Agreement or otherwise, and whether or not the Company shall have
complied with any of the provisions hereof or thereof or
proceeded to take any action authorized or permitted under
applicable law. Each and every remedy of the Trustees, and each
of them, shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under
the Indenture or now or hereafter existing at law or in equity or
by statute.
7.3 Attorney-in-Fact. The Company hereby constitutes
the Trustees, and each of them, with authority to act without the
other, its true and lawful attorney, irrevocably, with full power
(in such attorney's name or otherwise), at any time when a
Default under the Indenture has occurred and is continuing, to
enforce any of the obligations contained herein or in the
Availability Agreement or to take any action or institute any
proceedings which to the Trustees (or either of them) may seem
necessary or advisable in the premises.
ARTICLE VIII.
Severability
If any provision or provisions of this Assignment shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE IX.
Governing Law
This Assignment and, so long as this Assignment shall
be in effect, the Availability Agreement, shall be governed by
and construed in accordance with the laws of the State of New
York.
ARTICLE X.
Succession
Subject to Article IV hereof, this Assignment and the
Availability Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, but no assignment hereof, or of the Availability
Agreement, or of any right to any funds due or to become due
under this Assignment or the Availability Agreement shall in any
event relieve the Company or any System Operating Company of
their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ARKANSAS POWER & LIGHT COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE INC.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Glenn E. Harder
Name: Glenn E. Harder
Title: Vice President-Financial
Strategies and Treasurer
UNITED STATES TRUST COMPANY OF NEW YORK
as Corporate Trustee
By: /s/ Gerard F. Ganey
Name: Gerard F. Ganey
Title: Senior Vice President
GERARD F. GANEY, as
Individual Trustee
/s/ Gerard F. Ganey
Exhibit B-3(f)
TWENTY-NINTH SUPPLEMENTARY CAPITAL FUNDS AGREEMENT
AND ASSIGNMENT
This Twenty-ninth Supplementary Capital Funds Agreement
and Assignment (hereinafter referred to as "this Agreement")
dated as of April 1, 1994, is made by and between Entergy
Corporation (successor to Middle South Utilities, Inc.)
("Entergy"), System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
and Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee") (the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock of
the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit 1 of the Grand Gulf Nuclear Electric
Station project ("Project") (more fully described in the
"Indenture" hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers Hanover
Trust Company, as agent for certain banks (the "Domestic Agent"),
and said banks entered into an Amended and Restated Bank Loan
Agreement dated as of June 30, 1977 (the "Amended and Restated
Agreement"), the First Amendment thereto, dated as of March 20,
1980 (the "First Bank Loan Amendment"), the Second Amended and
Restated Bank Loan Agreement dated as of June 15, 1981, as
amended by the First Amendment dated as of February 5, 1982 (as
so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of June
30, 1977 between Entergy, the Company and the Domestic Agent (the
"First Supplementary Capital Funds Agreement"), the Company and
Entergy supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Domestic Agent and such banks;
(iii) the First Bank Loan Amendment, among other things,
increased the amount of the loans made by the banks party thereto
to $808,000,000 and pursuant to the Fourth Supplementary Capital
Funds Agreement and Assignment (also substantially in the form of
this Agreement) dated as of March 20, 1980 (the "Fourth
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Domestic Agent and the banks under the Amended
and Restated Agreement as amended by the First Bank Loan
Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees for the holders of $400,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 9.25% Series due
1989 (the "First Series Bonds") issued under a Mortgage and Deed
of Trust dated as of June 15, 1977, between the Company and the
Trustees (the "Mortgage"), as supplemented by a First
Supplemental Indenture dated as of June 15, 1977, between the
Company and the Trustees (the Mortgage, as so supplemented and as
supplemented by a Second Supplemental Indenture dated as of
January 1, 1980, a Third Supplemental Indenture dated as of June
15, 1981, a Fourth Supplemental Indenture dated as of June 1,
1984, a Fifth Supplemental Indenture dated as of December 1,
1984, a Sixth Supplemental Indenture dated as of May 1, 1985, a
Seventh Supplemental Indenture dated as of June 15, 1985, an
Eighth Supplemental Indenture dated as of May 1, 1986, a Ninth
Supplemental Indenture dated as of May 1, 1986, a Tenth
Supplemental Indenture dated as of September 1, 1986, an Eleventh
Supplemental Indenture dated as of September 1, 1986, a Twelfth
Supplemental Indenture dated as of September 1, 1986, a
Thirteenth Supplemental Indenture dated as of November 15, 1987,
a Fourteenth Supplemental Indenture dated as of December 1, 1987,
a Fifteenth Supplemental Indenture dated as of July 1, 1992, a
Sixteenth Supplemental Indenture dated as of October 1, 1992, a
Seventeenth Supplemental Indenture dated as of October 1, 1992
and an Eighteenth Supplemental Indenture dated as of April 1,
1993, and as the same may from time to time hereafter be amended
and supplemented in accordance with its terms, being hereinafter
called the "Indenture"), entered into the Second Supplementary
Capital Funds Agreement and Assignment dated as of June 30, 1977
(the "Second Supplementary Capital Funds Agreement")
(substantially in the form of this Agreement) to secure the First
Series Bonds; (ii) Entergy, the Company, and the Trustees, as
trustees for the holders of $98,500,000 aggregate principal
amount of the Company's First Mortgage Bonds, 12.50% Series due
2000 (the "Second Series Bonds") issued under the Mortgage, as
supplemented by a Second Supplemental Indenture dated as of
January 1, 1980 between the Company and the Trustees, entered
into the Third Supplementary Capital Funds Agreement and
Assignment dated as of January 1, 1980 (the "Third Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Second Series Bonds; (iii) Entergy, the
Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 16% Series due 2000 (the "Third Series Bonds")
issued under the Mortgage, as supplemented by a Fifth
Supplemental Indenture dated as of December 1, 1984 between the
Company and the Trustees, entered into the Eleventh Supplementary
Capital Funds Agreement and Assignment dated as of December 1,
1984 (the "Eleventh Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Third
Series Bonds; (iv) Entergy, the Company and the Trustees, as
trustees for the holders of $100,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 15.375% Series due
2000 (the "Fourth Series Bonds") issued under the Mortgage, as
supplemented by a Sixth Supplemental Indenture, dated as of May
1, 1985 between the Company and the Trustees, entered into the
Thirteenth Supplementary Capital Funds Agreement and Assignment
dated as of May 1, 1985 (the "Thirteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Fourth Series Bonds; (v) Entergy, the
Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth
Supplementary Capital Funds Agreement and Assignment dated as of
May 1, 1986 (the "Sixteenth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Seventh Series Bonds; (vi) Entergy, the Company, and
the Trustees, as trustees for the holders of $300,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
9 7/8% Series due 1991 (the "Eighth Series Bonds") issued under
the Mortgage, as supplemented by a Tenth Supplemental Indenture,
dated as of September 1, 1986 between the Company and the
Trustees, entered into the Seventeenth Supplementary Capital
Funds Agreement and Assignment dated as of September 1, 1986 (the
"Seventeenth Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Eighth
Series Bonds; (vii) Entergy, the Company and the Trustees, as
trustees for the holders of $250,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 10 1/2% Series due
1996 (the "Ninth Series Bonds") issued under the Mortgage, as
supplemented by an Eleventh Supplemental Indenture, dated as of
September 1, 1986 between the Company and the Trustees, entered
into the Eighteenth Supplementary Capital Funds Agreement and
Assignment dated as of September 1, 1986 (the "Eighteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Ninth Series Bonds;
(viii) Entergy, the Company and the Trustees, as trustees for the
holders of $200,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 11 3/8% Series due 2016 (the
"Tenth Series Bonds") issued under the Mortgage, as supplemented
by a Twelfth Supplemental Indenture, dated as of September 1,
1986 between the Company and the Trustees, entered into the
Nineteenth Supplementary Capital Funds Agreement and Assignment
dated as of September 1, 1986 (the "Nineteenth Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Tenth Series Bonds; (ix) Entergy, the
Company and the Trustees, as trustees for the holders of
$200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth
Supplementary Capital Funds Agreement and Assignment dated as of
November 15, 1987 (the "Twentieth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Eleventh Series Bonds; (x) Entergy, the Company and
the Trustees, as trustees for the holders of $100,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
14.34% Series due 1992 (the "Twelfth Series Bonds") issued under
the Mortgage, as supplemented by a Fourteenth Supplemental
Indenture dated as of December 1, 1987 between the Company and
the Trustees, entered into the Twenty-first Supplementary Capital
Funds Agreement and Assignment dated as of December 1, 1987 (the
"Twenty-first Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the
Twelfth Series Bonds; (xi) Entergy, the Company and the Trustees,
as trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series due
2002 (the "Thirteenth Series Bonds") issued under the Mortgage,
as supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Supplementary Capital Funds Agreement and
Assignment dated as of July 1, 1992 (the "Twenty-fourth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Thirteenth Series
Bonds; (xii) Entergy, the Company and the Trustees, as trustees
for the holders of $105,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6.12% Series due 1995 (the
"Fourteenth Series Bonds") issued under the Mortgage, as
supplemented by a Sixteenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-fifth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-fifth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fourteenth Series
Bonds; (xiii) Entergy, the Company and the Trustees, as trustees
for the holders of $70,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 8.25% Series due 2002 (the
"Fifteenth Series Bonds") issued under the Mortgage, as
supplemented by a Seventeenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-sixth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-sixth
Supplementary Capital Funds Agreement")(also substantially in the
form of this Agreement) to secure the Fifteenth Series Bonds; and
(xiv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6% Series due 1998 (the
"Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
the Twenty-seventh Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1993 (the "Twenty-seventh
Supplementary Capital Funds Agreement")(also substantially in the
form of this Agreement) to secure the Sixteenth Series Bonds.
E. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent") and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the Eurodollar
Agent (the "Sixth Supplementary Capital Funds Agreement"), the
Company and Entergy supplemented their undertakings under the
Capital Funds Agreement for the benefit of the Eurodollar Agent
and said banks. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially in the
form of this Agreement) dated as of February 18, 1983 (the
"Seventh Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Eurodollar Agent and the Eurodollar
Banks.
F. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement")
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of December 1, 1983 (the "Ninth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement") which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of June 1,
1984 (the "Tenth Supplementary Capital Funds Agreement"), Entergy
and the Company further supplemented their undertakings under the
Capital Funds Agreement for the Bank and Deposit Guaranty
National Bank as trustee under the indenture relating to the
Series B Bonds.
H. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement (also substantially in the form of this Agreement)
dated as of December 1, 1984 (the "Twelfth Supplementary Capital
Funds Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under the
indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $47,208,334 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series A (the "Fifth Series Bonds") issued under the
Mortgage, as supplemented by a Seventh Supplemental Indenture
dated as of June 15, 1985 between the Company and the Trustees,
entered into the Fourteenth Supplementary Capital Funds Agreement
and Assignment dated as of June 15, 1985 (the "Fourteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifth Series Bonds. The
Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) (the "Series D
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of June 15, 1985 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fourteenth
Supplementary Capital Funds Agreement, Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Trustees and Deposit Guaranty National Bank as
trustee under the indenture relating to the Series D Bonds.
J. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $95,643,750 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series B (the "Sixth Series Bonds") issued under the
Mortgage, as supplemented by an Eighth Supplemental Indenture
dated as of May 1, 1986 between the Company and the Trustees,
entered into the Fifteenth Supplementary Capital Funds Agreement
and Assignment dated as of May 1, 1986 (the "Fifteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Sixth Series Bonds. The
Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) (the "Series E
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of May 1, 1986 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fifteenth Supplementary
Capital Funds Agreement, Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Trustees and Deposit Guaranty National Bank as trustee
under the indenture relating to the Series E Bonds.
K. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Stephen M.
Carta (Stephen J. Kaba, successor) (collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto,
each dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GGIB
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein ("1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOCs. Pursuant to the Twenty-second
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of
December 1, 1988 (the "Twenty-second Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the benefit of
Chemical Bank (the "Administrating Bank"), such 1988 Funding Bank
and the 1988 Participating Banks.
L. Entergy, the Company and Chemical Bank entered into
the Twenty-third Supplementary Capital Funds Agreement
(substantially in the form of this Agreement) dated as of
January 11, 1991 ("Twenty-third Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
First Amendment to Reimbursement Agreement, dated as of
January 11, 1991 ("First Amendment to Reimbursemenet Agreement")
(the Reimbursement Agreement, as amended by the First Amendment
to Reimbursement Agreement, is herein called the "First Amended
Reimbursement Agreement") that provided, among other things, (i)
for the issuance by The Bank of Tokyo, Ltd., Los Angeles Agency
(the "Funding Bank"), for the account of the Company, of
irrevocable transferable letters of credit ("1991 LOCs") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, such 1991 LOCs to be substantially in
the form of Exhibit A to the First Amended Reimbursement
Agreement with maximum amounts of $116,601,440 and $29,150,360;
(ii) for the reimbursement to the Funding Bank by the banks named
in the First Amended Reimbursement Agreement (the "Participating
Banks") for all drafts paid by the Funding Bank under any 1991
LOC; and (iii) for the reimbursement by the Company to the
Funding Bank for the benefit of the Participating Banks of sums
equal to all drafts paid by the Funding Bank under any 1991 LOC.
M. Entergy, the Company and Chemical Bank entered into
the Twenty-eighth Supplementary Capital Funds Agreement
(substantially in the form of this Agreement), dated as of
December 17, 1993 ("Twenty-eighth Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
Second Amendment to Reimbursement Agreement, dated as of
December 17, 1993 ("Second Amendment to Reimbursement Agreement")
(the First Amended Reimbursement Agreement, as amended by the
Second Amendment to Reimbursement Agreement, is herein called the
"Second Amended Reimbursement Agreement") that provided, among
other things, (i) for the issuance by the Funding Bank, for the
account of the Company, of irrevocable transferable letters of
credit ("1993 LOCs") to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such 1993
LOCs to be substantially in the form of Exhibit A to the Second
Amended Reimbursement Agreement with maximum amounts of
$132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1993 LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the Participating
Banks of sums equal to all drafts paid by the Funding Bank under
any 1993 LOC.
N. The Company seeks to finance part of the capital
costs related to the Project with borrowed funds and, to that
end, the Company has entered into an Underwriting Agreement with
Salomon Brothers Inc, dated as of April 21, 1994, providing,
among other things, for the issue and sale by the Company of
$60,000,000 aggregate principal amount of First Mortgage Bonds, 7
5/8% Series due 1999 (the "Seventeenth Series Bonds"), to be
issued under and secured pursuant to the Indenture as heretofore
supplemented and as further supplemented by a Nineteenth
Supplemental Indenture dated as of April 1, 1994.
O. By written assumption dated as of December 31,
1993, Entergy Corporation, a Delaware corporation, assumed all
obligations and liabilities of Entergy Corporation, a Florida
corporation, under the Capital Funds Agreement, as supplemented,
pursuant to and as permitted by the terms of the supplements
thereto.
P. The Company and Entergy, by this instrument, wish
(i) to continue to supplement their undertakings under the
Capital Funds Agreement for the benefit of the Trustees and
(ii) to create enforceable rights hereunder in the Trustees as
hereinafter set forth.
Q. The Company, Entergy and certain other subsidiaries
of Entergy have joined in an Application-Declaration on Form U-1,
as amended and supplemented to date, in File No. 70-7946, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Agreement and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of the execution and delivery hereof.
R. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Obligations of Entergy and the Company.
1.1. Commercial Operation of the Project. The Company
shall (and Entergy shall cause the Company to) use its best
efforts to maintain the Project in commercial operation and, in
connection therewith, take all such action, including, without
limitation, all actions before governmental authorities, as shall
be necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall
supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required from
time to time by the Company in order to maintain that portion of
the Capitalization (as defined in Section 1.6 hereof) of the
Company as shall be represented by the aggregate of the par value
of, or stated capital represented by, the outstanding shares of
all classes of capital stock and the surplus of the Company, paid
in, earned and other, if any, at an amount equal to at least 35%
of the Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy in
exchange for shares of the Company's common stock and (ii) the
capital made available to the Company at any time in question
through the incurrence by the Company of Indebtedness for
Borrowed Money (as defined in Section 1.6 hereof) as shall be
required in order for the Company to continue to own its
undivided ownership interest in the Project, to provide (without
limitation) for interest charges of the Company, to permit the
commercial operation of Unit No. 1, to permit the continuation of
such commercial operation and to pay in full all payments of the
principal of, and premium, if any, and interest on Indebtedness
for Borrowed Money, as defined in Section 1.6 hereof (whether due
at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), it being understood and agreed that,
in connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor) and
the entering into by the Company of industrial development
revenue bond financing with respect to pollution control
facilities and the issuance and sale by the Company of debt
securities, and, to the extent necessary or desirable, preferred
stock, to banks, institutions and the public may constitute some
of the means by which required capital can be made available to
the Company.
1.3. Manner of Performance. If, with respect to any
amount of capital which Entergy shall, at any time in question,
be obligated under the provisions of Section 1.2 to supply or
cause to be supplied to the Company, Entergy and the Company
shall fail to agree on the type, or terms, of any particular
security to be issued by the Company and sold to Entergy or to
others for the purpose of securing such required capital or if
requisite regulatory approvals are not obtained for any issuance
and sale so agreed upon or if such issuance and sale cannot for
any other reason be carried out, then and in such event, Entergy
shall supply such capital to the Company in the form of a cash
capital contribution.
1.4. Payments in Respect of the Seventeenth Series
Bonds. If at any time the Company shall require funds to pay the
interest (including, if and to the extent permitted by law,
interest on overdue principal, premium and interest) and premium,
if any, on, and the principal of, the Seventeenth Series Bonds
(whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and the expenses,
commitment fees, financing charges, trustees' fees and
administration expenses attributable to the Seventeenth Series
Bonds and the funds of the Company available for such purpose or
purposes shall be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of, funds
under any loan agreement or similar instrument or instruments to
which the Company is now or hereafter becomes a party, Entergy
will pay to the Company in cash as a capital contribution the
funds necessary to enable the Company to pay the amounts referred
to above in this Section 1.4.
1.5. Subordination of Claims of Entergy Against the
Company. Entergy hereby agrees that (i) all amounts advanced by
Entergy to the Company (other than by way of purchases of capital
stock of the Company or capital contributions to the Company)
shall, for the purposes of this Agreement and so long as this
Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of the Company (as defined in Section
1.6 hereof) and (ii) no such Subordinated Indebtedness of the
Company shall be transferred or assigned (including by way of
security) to any person (other than to a successor of Entergy by
way of merger or consolidation or the acquisition by such person
of all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of the
Company as such on its books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of the
Company (exclusive of Short Term Debt), secured or unsecured,
then outstanding, and the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of the Company and the surplus of the
Company, paid in, earned and other, if any;
(b) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed Money
created or incurred by the Company which matures by its terms not
more than 12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the option
of the Company for a period of more than 12 months from the date
of the creation or incurrence thereof pursuant to any revolving
credit or similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to the
Obligations Secured Hereby (as defined in Section 5.1 hereof) to
the extent and in the manner set forth below:
(i) if there shall occur a Default (as defined in
the Indenture) under the Indenture, then so long as such Default
shall be continuing and shall not have been cured or waived, or
unless and until all the Obligations Secured Hereby shall have
been paid in full in money or money's worth at the time of
receipt, no payment of principal and premium, if any, or interest
shall be made upon Subordinated Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar case or proceedings,
or any receivership proceedings in connection therewith, relative
to the Company or its creditors or its property, and in the event
of any proceedings for voluntary liquidation, dissolution or
other winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then the Obligations
Secured Hereby shall first be paid in full in money or money's
worth at the time of receipt, or payment thereof shall have been
provided for, before any payment on account of principal,
premium, if any, or interest is made upon Subordinated
Indebtedness of the Company.
ARTICLE II.
Nature of the Obligations of
Entergy and the Company
2.1. Regulatory Approvals.
(a) Except as provided in Section 2.2 with respect to
the obligations of Entergy to make cash capital contributions to
the Company pursuant to the provisions of Sections 1.3 and 1.4
(as to which the SEC Orders are in full force and effect at the
date of execution and delivery of this Agreement), the
performance of the obligations of Entergy hereunder shall be
subject to the receipt and continued effectiveness of all
authorizations of governmental regulatory authorities necessary
at the time to permit Entergy at the time to perform its duties
and obligations then to be performed hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental authorities necessary at the time to permit Entergy
at the time to supply or cause to be supplied to the Company
capital pursuant to the provisions of Section 1.2 or to permit
Entergy at the time to acquire securities issued and sold to
Entergy by the Company.
(b) The performance of the obligations of the Company
hereunder shall be subject to the receipt and continued
effectiveness of all authorizations of governmental regulatory
authorities at the time necessary to permit the Company to
perform its duties and obligations hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental regulatory authorities at the time necessary to
permit the Company to operate the Project (or to have the Project
operated for it) to the extent the Project is then operable, and
to issue and to sell securities then to be issued and sold by the
Company to Entergy or to others for the purpose of securing
required capital.
(c) Entergy and the Company shall use their best
efforts to secure and maintain all such authorizations of
governmental regulatory authorities.
2.2. Nature of Obligations. The obligations of
Entergy hereunder to make cash capital contributions to the
Company pursuant to the provisions of Sections 1.3 and 1.4 having
heretofore been authorized by the SEC Orders (and no other
authorization by any governmental regulatory authority being
required) and the owners of the Seventeenth Series Bonds having
relied on such authorization in purchasing the Seventeenth Series
Bonds, Entergy agrees that its duty to perform such obligations
shall be absolute and unconditional, (a) whether or not Entergy
shall have received all authorizations of governmental regulatory
authorities necessary at the time to permit Entergy to perform
its other duties and obligations hereunder, (b) whether or not
the Company shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit the Company to perform its duties and obligations
hereunder, (c) whether or not any authorizations referred to in
the foregoing clauses (a) and (b) continue, at the time, in
effect, (d) whether or not, at any time in question, the Company
shall have performed its duties and obligations under this
Agreement, (e) whether or not the Project shall be maintained in
commercial operation, energy from the Project is being produced
or delivered or is available (including, without limitation,
delivery or availability to other subsidiaries of Entergy), an
abandonment of the Project shall have occurred or the Project
shall be in whole or in part destroyed or taken, for any reason
whatsoever, (f) whether or not the Company shall be solvent, (g)
regardless of any event of force majeure and (h) regardless of
any other circumstance, happening, condition or event whatsoever,
whether or not similar to any of the foregoing. Subject to
Section 2.1(a), all other obligations of Entergy hereunder are
similarly absolute and unconditional.
(b) In the event that Entergy shall cease to own at
least a majority of common stock of the Company and such lower
ownership percentage has been permitted pursuant to the consent
of the holders of at least 66-2/3% of the Seventeenth Series
Bonds Outstanding (as defined in the Indenture) at the time of
the consent, the obligations of Entergy hereunder shall not be
increased by any amendment to, or modification of, the terms and
provisions of the Indenture or the Seventeenth Series Bonds
unless Entergy shall have consented in writing to such amendment
or modification.
2.3. Waivers of Defenses. The obligations of Entergy
under Sections 1.2, 1.3 and 1.4 to supply capital or cause
capital to be supplied or to make cash capital contributions to
the Company shall not be subject to any abatement, reduction,
limitation, impairment, termination, set-off, defense,
counterclaim or recoupment whatsoever or any right to any thereof
(including, but not limited to, abatements, reductions,
limitations, impairments, terminations, set-offs, defenses,
counterclaims and recoupments for or on account of any past,
present or future indebtedness of the Company to Entergy or any
claim by Entergy against the Company, whether or not arising
under this Agreement and whether or not arising out of any action
or nonaction on the part of the Company or the Trustees (or
either of them), including any disposition of the Project or any
part thereof pursuant to the Indenture, requirements of
governmental authorities, actions of judicial receivers or
trustees or otherwise and whether or not arising from willful or
negligent acts or omissions). The foregoing, however, shall not,
subject to the provisions of Section 1.5 hereof, affect in any
other way any rights and remedies of Entergy with respect to any
amounts owed to Entergy by the Company or any such claim by
Entergy against the Company. The obligations and liabilities of
Entergy hereunder shall not be released, discharged or in any way
affected by any reorganization, arrangement, compromise,
composition or plan affecting the Company or any change, waiver,
extension, indulgence or other action or omission in respect of
any indebtedness or obligation of the Company or Entergy, whether
or not the Company or Entergy shall have had any notice or
knowledge of any of the foregoing. Neither failure nor delay by
the Company or the Trustees (or either of them) or any holder or
representative of any holder of the Seventeenth Series Bonds to
exercise any right or remedy provided herein or by statute or at
law or in equity shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or remedy preclude
any other or further exercise thereof, or the exercise of any
other right or remedy. Entergy also hereby irrevocably waives, to
the extent that it may do so under applicable law, any defense
based on the adequacy of a remedy at law which may be asserted as
a bar to the remedy of specific performance in any action brought
against Entergy for specific performance of this Agreement by the
Company or by the Trustees (or either of them) or by the holders
of the Seventeenth Series Bonds or for their benefit by a
receiver or trustee appointed for the Company or in respect of
all or a substantial part of the Company's assets under the
bankruptcy or insolvency law of any jurisdiction to which the
Company is or its assets are subject. Anything in this Section
2.3 to the contrary notwithstanding, Entergy shall not be
precluded from asserting as a defense against any claim made
against Entergy upon any of its obligations hereunder that it has
fully performed such obligation in accordance with the terms of
this Agreement.
2.4. Subrogation, Etc. Entergy shall, subject to the
provisions of Section 1.5, be subrogated to all rights of the
Trustees and the holders of the Seventeenth Series Bonds against
the Company in respect of any amounts paid by Entergy pursuant to
the provisions of this Agreement and applied to the payment of
the Obligations Secured Hereby (as defined in Section 5.1
hereof). The Trustees agree that they will not deal with the
Company, or any security for the Seventeenth Series Bonds, in
such a manner as to prejudice such rights of Entergy.
ARTICLE III.
Term
This Agreement shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of
Entergy and the Company set forth in this Agreement are
exclusively for the benefit of, and may be enforced only by, the
Trustees (or either of them), by the holders of the Seventeenth
Series Bonds as provided in the Indenture, or for their benefit
by a receiver or trustee for the Company or in respect of all or
a substantial part of its assets under the bankruptcy or
insolvency law of any jurisdiction to which the Company is or its
assets are subject.
ARTICLE IV.
Assignment
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by any of the parties hereto,
except transfer or assignment by the Trustees to their successors
in accordance with Article XVII of the Indenture, except as
otherwise provided in Article V hereof and except that:
(i) in the event that Entergy shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Agreement shall be transferred by Entergy to
and shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such
consolidation, merger or other transfer, such corporation or
other person shall deliver to the Company and the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of Entergy's obligations and
liabilities under this Agreement and an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person; and
(ii) in the event that the Company shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Agreement shall be transferred by the Company
to and shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such consolidation,
merger or other transfer, such corporation or other person shall
deliver to the Corporate Trustee a written assumption, in form and
substance satisfactory to the Corporate Trustee, of the Company's
obligations and liabilities under this Agreement and an opinion of
counsel to the effect that such instrument complies with the
requirements hereof and constitutes a valid, legally binding and
enforceable obligation of such corporation or other person.
ARTICLE V.
Security Assignment and Agreement
5.1. Assignment and Creation of Security Interest. As
security for (i) the due and punctual payment of the interest
(including, if and to the extent permitted by law, interest on
overdue principal, premium and interest) and premium, if any, on,
and the principal of, the Seventeenth Series Bonds (whether at
the stated maturity thereof, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (ii) the due and
punctual payment of all fees and costs, expenses and other
amounts which may become payable by the Company under the
Indenture which are a charge on the trust estate thereunder which
is superior to the charge thereon for the benefit of the
Seventeenth Series Bonds, together in each case with all costs of
collection thereof (all such amounts referred to in the foregoing
clauses (i) and (ii) being hereinafter collectively referred to
as "Obligations Secured Hereby"), the Company hereby assigns to
the Trustees and creates a security interest in favor of the
Trustees, in (x) all of the Company's rights to receive all
moneys paid, or caused to be paid, or to be paid or to be caused
to be paid, to the Company by Entergy pursuant to Section 1.4 of
this Agreement, and (y) all other claims, rights (but not
obligations or duties), powers, privileges, interests and
remedies of the Company (including, without limitation, all of
the Company's rights to receive all moneys paid, or caused to be
paid, or to be paid, or to be caused to be paid, to the Company
by Entergy pursuant to Sections 1.2 and 1.3 of this Agreement),
whether arising under this Agreement or by statute or in law or
in equity or otherwise, resulting from any failure by Entergy to
perform its obligations under this Agreement, but so far as this
clause (y) is concerned only to the extent required for the
payment when due and payable of the Obligations Secured Hereby,
together in each case with full power and authority, in the name
of the Trustees, or the Company as assignor, or otherwise, to
demand payment of, enforce, collect, receive and receipt for any
and all of the foregoing (the rights, claims, powers, privileges,
interests and remedies referred to in clause (y) being
hereinafter sometimes called the "Collateral").
5.2. Other Agreements.
(a) The Company will not assign the rights assigned in
clause (x) of Section 5.1 as security for any indebtedness other
than the Obligations Secured Hereby and will not assign the other
rights assigned in Section 5.1 as security for any indebtedness
other than the Obligations Secured Hereby, except as provided in
paragraph (b) of this Section 5.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain banks as
referred to in Whereas Clause C hereof by the First, Fourth,
Fifth and Eighth Supplementary Capital Funds Agreements, (ii) the
First Series Bonds, the Second Series Bonds, the Third Series
Bonds, the Fourth Series Bonds, the Seventh Series Bonds, the
Eighth Series Bonds, the Ninth Series Bonds, the Tenth Series
Bonds, the Eleventh Series Bonds, the Twelfth Series Bonds, the
Thirteenth Series Bonds, the Fourteenth Series Bonds, the
Fifteenth Series Bonds, and the Sixteenth Series Bonds, as
referred to in Whereas Clause D hereof by the Second, Third,
Eleventh, Thirteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-first, Twenty-fourth, Twenty-fifth,
Twenty-sixth and Twenty-seventh Supplementary Capital Funds
Agreements, respectively, (iii) loans made by certain banks as
referred to in Whereas Clause E hereof by the Sixth and Seventh
Supplementary Capital Funds Agreements, respectively, (iv) the
obligations under the Series A Reimbursement Agreement as
referred to in Whereas Clause F hereof by the Ninth Supplementary
Capital Funds Agreement, (v) the obligations under the Series B
Reimbursement Agreement as referred to in Whereas Clause G hereof
by the Tenth Supplementary Capital Funds Agreement, (vi) the
obligations under the Series C Reimbursement Agreement as
referred to in Whereas Clause H hereof by the Twelfth
Supplementary Capital Funds Agreement, (vii) the Fifth Series
Bonds as referred to in Whereas Clause I hereof by the Fourteenth
Supplementary Capital Funds Agreement, (viii) the Sixth Series
Bonds as referred to in Whereas Clause J hereof by the Fifteenth
Supplementary Capital Funds Agreement, (ix) the obligations under
the Reimbursement Agreement as referred to in Whereas Clause K
hereof by the Twenty-second Supplementary Capital Funds
Agreement, (x) the obligations under the First Amended
Reimbursement Agreement as referred to in Whereas Clause L hereof
by the Twenty-third Supplementary Capital Funds Agreement, and
(xi) the obligations under the Second Amended Reimbursement
Agreement as referred to in Whereas Clause M hereof by the Twenty-
eighth Supplementary Capital Funds Agreement, and shall be
entitled to secure the interest and premium, if any, on, and the
principal of, other Indebtedness for Borrowed Money of the
Company issued by the Company to any person (except Entergy or
any affiliate of Entergy) to finance the cost of the Project
(including, without limitation, indebtedness outstanding under
the Indenture) or to refund (including any successive refundings)
any such Indebtedness issued for such purpose, the incurrence of
which Indebtedness is at the time permitted by the Indenture
(herein called "Additional Indebtedness"), by entering into a
supplementary capital funds agreement and assignment including,
without limitation, the First through Twenty-eighth Supplementary
Capital Funds Agreements (each being hereinafter called an
"Additional Supplementary Agreement") with the holders of such
Additional Indebtedness or representatives of or trustees for
such holders, or both, as the case may be (hereinafter called an
"Additional Assignee"). Each Additional Supplementary Agreement
shall be substantially in the form of this Agreement, except that
there shall be substituted in such Additional Supplementary
Agreement appropriate references to such Additional Indebtedness,
such Additional Assignee and the agreement or instrument under
which such Additional Indebtedness is issued in lieu of the
references herein to the Seventeenth Series Bonds, the Trustees,
and the Indenture, respectively, and such Additional
Supplementary Agreement may contain such other provisions as are
not inconsistent with this Agreement and do not adversely affect
the rights hereunder of the holders of the Seventeenth Series
Bonds or the Trustees or any of them.
(c) Notwithstanding any provision of this Agreement to
the contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the
Trustees, or any provision of or filing or recording under the
Uniform Commercial Code or any other applicable law of any
jurisdiction, the Trustees agree that the claims of the Trustees
under Sections 1.2 and 1.3 of this Agreement and any security
interest, pledge or lien in favor of the Trustees now or
hereafter existing in and to the Collateral shall rank pari passu
with the claims of each Additional Assignee under the
corresponding sections of the Additional Supplementary Agreement
to which it is a party and any security interest, pledge or lien
in favor of such Additional Assignee thereunder now or hereafter
existing in and to the Collateral, irrespective of the time or
times at which prior, concurrent or subsequent Additional
Supplementary Agreements are entered into in accordance with
Section 5.2(b) hereof.
5.3. Payments to the Corporate Trustee. The Company
agrees that, if and whenever it shall make a demand to Entergy
for any payment pursuant to Section 1.2, 1.3, or 1.4 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement, it will separately identify
the respective portions of such payment, if any, required for (i)
the payment of Obligations Secured Hereby and (ii) the payment of
any other amounts then due and payable in respect of Additional
Indebtedness and instruct Entergy (subject to the provisions of
Section 5.4) to pay or cause to be paid the amount so identified
as required for the payment of Obligations Secured Hereby
directly to the Corporate Trustee. Any payments made or caused
to be made by Entergy pursuant to Section 1.2 or 1.3 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement shall, to the extent necessary
to satisfy in full the assignment set forth in Section 5.1 of
this Agreement and the corresponding assignments set forth in the
Additional Supplementary Agreements, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
5.4. Payments to the Company. Notwithstanding the
provisions of Sections 5.1 and 5.3, unless and until the
Corporate Trustee shall have given written notice to Entergy of
the occurrence and continuance of any Default (as defined in the
Indenture), all moneys paid or to be paid to the Company pursuant
to Sections 1.2, 1.3 and 1.4 of this Agreement shall be paid
directly to the Company and the Company need not separately
identify the respective portions of payments as provided in
Section 5.3 hereof, provided that notice as to the amount of any
such payments or advances shall be given by the Company to the
Corporate Trustee simultaneously with the demand by the Company
for any such payment. If the Corporate Trustee shall have duly
notified Entergy of the occurrence of any such Default, such
payments shall be made in the manner and in the amounts specified
in Section 5.3 hereof until the Corporate Trustee shall by
further notice to Entergy give permission that all such payments
may be made again to the Company, such permission being subject
to revocation by a subsequent notice pursuant to the first
sentence of this Section 5.4. The Corporate Trustee shall give
such permission if no such Default continues to exist.
5.5. Consent and Agreement of Entergy.
(a) Entergy hereby consents to the foregoing
assignment and agrees with the Trustees to make payments to the
Corporate Trustee in the amounts and in the manner specified in
Section 5.3 at the principal corporate trust office of the
Corporate Trustee in New York City, New York, which is presently
located at 114 West 47th Street, New York, New York 10036.
(b) Subject to the provisions of Section 2.4 hereof,
Entergy agrees that all payments made to the Corporate Trustee or
to the Company as contemplated by Sections 5.3 and 5.4 shall be
final as between Entergy and the Corporate Trustee or the
Company, as the case may be, and that Entergy will not seek to
recover from the Corporate Trustee for any reason whatsoever any
moneys paid to the Corporate Trustee by virtue of this Agreement,
but the finality of any such payment shall not prevent the
recovery of any overpayments or mistaken payments which may be
made by Entergy unless a Default has occurred and is continuing,
in which case any such overpayment or mistaken payment shall not
be recoverable but shall constitute Subordinated Indebtedness of
the Company to Entergy.
ARTICLE VI.
Amendments
6.1. Restrictions on Amendments. This Agreement may
not be amended, waived, modified, discharged or otherwise changed
orally. It may be amended, waived, modified, discharged or
otherwise changed only by a written instrument which has been
signed by all the parties hereto and which has been approved by
the holders of more than 50% in principal amount of the
Seventeenth Series Bonds Outstanding (as defined in the
Indenture) at the time of such consent or which does not
materially adversely affect the rights of the Trustees or the
holders of the Seventeenth Series Bonds or which is necessary in
order to qualify the Indenture under the Trust Indenture Act of
1939, as contemplated by Section 20.04 of the Mortgage, provided,
however, that (i) without the written consent of the holders of
all the Seventeenth Series Bonds affected thereby, no amendment,
waiver, modification, discharge or other change shall be made
which shall change the terms of this Section 6.1 and (ii) no such
amendment, waiver, modification, discharge or other change shall
be made which shall modify, without the written consent of each
of the Trustees, the rights, duties or immunities of the Trustees
or either of them.
6.2. Trustees' Execution. The Trustees shall, at the
request of the Company, execute any instrument amending, waiving,
modifying, discharging or otherwise changing this Agreement (a)
as to which the Corporate Trustee shall have received an opinion
of counsel to the effect that such instrument has been duly
authorized by Entergy and the Company and is permitted by the
provisions of Section 6.1 and that this Agreement, as amended,
waived, modified discharged or otherwise changed by such
instrument, constitutes valid, legally binding and enforceable
obligations of the Company and Entergy, and (b) which shall have
been executed by Entergy and the Company. The Trustees, and each
of them, shall be fully protected in relying upon the aforesaid
opinion.
ARTICLE VII.
Notices
7.1. Notices, Etc., in Writing. All notices,
consents, requests and other documents authorized or permitted to
be given pursuant to this Agreement shall be given in writing and
either personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Treasurer
If to Entergy Corporation, to:
P.O. Box 61005
New Orleans, Louisiana 70161
Attention: Treasurer
If to the Corporate Trustee, to:
United States Trust Company
of New York
114 West 47th Street
New York, New York 10036
Attention: Gerard F. Ganey
If to the Individual Trustee, to:
Gerard F. Ganey
c/o United States Trust Company
of New York
114 West 47th Street
New York, New York 10036
with copies to each party.
7.2. Delivery, Etc. Notices, consents, requests and
other documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 7.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VIII.
Enforcement
8.1 Indenture Terms and Conditions. The Trustees, and
each of them, enter into and accept this Agreement upon the terms
and conditions set forth in Article XVII of the Indenture with
the same force and effect as if those terms and conditions were
repeated at length herein and made applicable to the Trustees,
and each of them, in respect of this Agreement and the trusts
hereunder and in respect of any action taken, suffered or omitted
to be taken by the Trustees, or either of them, hereunder.
Nothing in this Agreement shall affect any right or remedy of the
Company or Entergy against the Trustees, or either of them (other
than those specifically waived herein), for breach or violation
of any of the obligations or duties of the Trustees assumed or
undertaken in this Agreement. Without limiting the generality of
the foregoing, the Trustees, and each of them, assume no
responsibility as to the validity or enforceability hereof or for
the correctness of the recitals of fact contained herein or in
the Capital Funds Agreement, which shall be taken as the
statements, representations and warranties of the Company and
Entergy.
8.2. Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, the Trustees
(or either of them) may proceed, in their, its or his own name,
or as trustees or trustee of an express trust or otherwise, to
protect and enforce the rights of the Trustees (or either of
them), and those of the Company under this Agreement by suit in
equity, action at law or other appropriate proceedings, whether
for the specific performance of any covenant or agreement
contained in this Agreement or otherwise, and whether or not the
Company shall have complied with any of the provisions hereof or
proceeded to take any action authorized or permitted under
applicable law. Each and every remedy of the Trustees, and each
of them shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under
the Indenture or now or hereafter existing at law or in equity or
by statute.
8.3. Attorney-in-Fact. The Company hereby constitutes
the Trustees, and each of them, with authority to act without the
other, its true and lawful attorney, irrevocably, with full power
(in such attorney's name or otherwise), at any time when a
Default under the Indenture has occurred and is continuing, to
enforce any of the obligations contained herein or to take any
action or institute any proceedings which to the Trustees (or
either of them) may seem necessary or advisable in the premises.
ARTICLE IX.
Severability
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ENTERGY CORPORATION
By: /s/Glenn E. Harder
Name: Glenn E. Harder
Title: Treasurer
SYSTEM ENERGY RESOURCES, INC.
By: /s/Glenn E. Harder
Name: Glenn E. Harder
Title: Vice President-Financial
Strategies and Treasurer
UNITED STATES TRUST COMPANY
OF NEW YORK, as Corporate Trustee
By: /s/Gerard F. Ganey
Name: Gerard F. Ganey
Title: Senior Vice President
GERARD F. GANEY,
as Individual Trustee
/s/Gerard F. Ganey
