File No. 70-7946
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form U-1
__________________________________________
Post-Effective Amendment No. 5 to
APPLICATION-DECLARATION
Under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________________
System Energy Resources, Inc. Entergy Corporation
1340 Echelon Parkway P.O. Box 61005
Jackson, MS 39213 New Orleans, LA 70161
Telephone: 601-984-9000 Telephone: 504-529-5262
Arkansas Power & Light Company Louisiana Power & Light
P.O. Box 551 Company
Little Rock, AR 72203 P.O. Box 61000
Telephone: 501-377-4000 New Orleans, LA 70161
Telephone: 504-569-4000
Mississippi Power & Light Company New Orleans Public Service
P.O. Box 1640 Inc.
Jackson, MS 39205 P.O. Box 61000
Telephone: 601-969-2311 New Orleans, LA 70161
Telephone: 504-569-4000
(Names of companies filing this statement and addresses
of principal executive offices)
________________________________________
Entergy Corporation
(Name of top registered holding company parent of each
applicant or declarant)
________________________________________
Gerald D. McInvale
Senior Vice President
and Chief Financial Officer
Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
(Name and address of agent for service)
_________________________________________
The Commission is also requested to send copies of any
communications in connection with this matter to:
Glenn E. Harder Bonnie Wilkinson, Esq.
Vice President-Financial Reid & Priest
Strategies and Treasurer 40 West 57th Street
Entergy Services, Inc. New York, NY 10019
P.O. Box 61000
New Orleans, LA 70161
Laurence M. Hamric, Esq. Betty Collins, Esq.
Entergy Services, Inc. Wise Carter Child & Caraway
225 Baronne Street Professional Association
New Orleans, LA 70112 P. O. Box 651
Jackson, MS 39205
<PAGE>
The Application-Declaration in this File No. 70-7946, as
heretofore amended, is hereby further amended as follows:
Item 1. Description of Proposed Transactions.
Item 1 of the Application-Declaration is hereby
supplemented by adding the following at the end
thereof:
"Pursuant to authorization of the Commission dated April 10,
1992 (Rel. No. 35-25513) and July 7, 1992 (Rel. No. 35-25577) in
this File, System Energy was authorized to issue and sell $45
million in principal amount of its First Mortgage Bonds, 8.40%
Series due 2002, such Bonds being sold on July 9, 1992. Pursuant
to additional authorization of the Commission dated October 28,
1992 (Rel. No. 35-25661)in this File, System Energy was
authorized to issue and sell $105 million in principal amount of
its First Mortgage Bonds, 6.12% Series due 1995 and $70 million
in principal amount of its First Mortgage Bonds, 8.25% Series due
2002 on October 29, 1992. Pursuant to additional authorization of
the Commission dated April 23, 1993 (Rel. No. 35-25803) in this
File, System Energy was authorized to issue and sell $60 million
in principal amount of its First Mortgage Bonds, 6% Series due
1998 on April 28, 1993. The Commission has reserved jurisdiction
over the remaining $220,000,000 principal amount of First
Mortgage Bonds.
"Pursuant to the April 10, 1992 authorization, System Energy
has begun negotiations for the proposed issuance and sale of a
new series of the First Mortgage Bonds ("New Bonds"), in an
aggregate principal amount to be determined, in a negotiated
public offering through Salomon Brothers Inc ("Underwriter").
"The New Bonds will be issued under the proposed Nineteenth
Supplemental Indenture to the Company's Mortgage. For further
information with respect to certain proposed terms and provisions
of the New Bonds, reference is made to Exhibit A-2(f), B-2(e) and
B-3(e) hereto.
"The Company plans to provide further information with
respect to the results of its negotiations with the Underwriter
and the proposed terms of the offering of the New Bonds,
including the interest rate to be borne by and the price to be
paid to the Company for the New Bonds, the redemption prices and
restrictions, if any, on redemption, underwriting discounts and
commissions and the initial public offering price of the New
Bonds, by further post-effective amendment to the Application-
Declaration in this proceeding to be filed with the Commission
shortly after the conclusion of such negotiations."
Item 2. Fees, Commissions and Expenses.
Reference is made to Part II, Item 14 of Exhibit C for a
description, under the heading "Each Additional Sale", of
estimated fees, commissions and expenses (exclusive of
underwriting discounts and commissions) to be incurred in
connection with the sale of the New Bonds.
Item 5. Procedure.
As set forth in Item 1 of this Post-Effective Amendment No.
5, the Company plans to file a further post-effective amendment
in this proceeding reflecting the proposed terms of the offering
of the New Bonds shortly after the conclusion of negotiations
with the Underwriter. The Company hereby requests that the
Commission issue a further supplemental order herein as soon as
practicable thereafter, but in any event no later than April 27,
1994, approving the proposed terms and conditions of the sale of
the New Bonds, and the related fees, commissions, and expenses,
and releasing jurisdiction over the same.
The Company waives a recommended decision by a hearing
officer or any other responsible officer of the Commission;
agrees that the Staff of the Division of Investment Management
may assist in the preparation of the Commission's decision; and
requests that there be no waiting period between the issuance of
the Commission's supplemental order and the date on which it is
to become effective.
<PAGE>
Item 6. Exhibits and Financial Statements.
(a) Exhibits:
A-2(f) Form of Nineteenth Supplemental Indenture
relating to New Bonds.
B-2(e) Form of Twenty-ninth Assignment of Availability
Agreement, Consent and Agreement relating to the
New Bonds.
B-3(e) Form of Twenty-ninth Supplementary Capital Funds
Agreement and Assignment relating to the New
Bonds.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
amendment to be signed on its behalf by the undersigned thereunto
duly authorized.
ENTERGY CORPORATION
By: /s/ Glenn E. Harder
Glenn E. Harder
Treasurer
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
Glenn E. Harder
Vice President-Financial
Strategies and Treasurer
Dated: March 31, 1994
Exhibit A-2(f)
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, __% Series due ____
__________________________________________________
<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.
Sixth Series shall have the meaning set forth in Section
2.01 of the Eighth Supplemental Indenture.
Sixteenth Series shall have the meaning set forth in Section
2.01 of the Eighteenth 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 __, 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 __, 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 "___%
Series due ____" (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, ____, 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 ___% 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 ___% 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.
<PAGE>
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, 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 Secretary
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 ____ 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 ____ 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 ____ 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 ____ 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 ____ 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 ____ 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 THOMAS McCUTCHEON, to me personally well known, who stated
that they were a Senior Vice President and an Assistant
Secretary, 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 ____ 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 ____ day of
April, 1994 within my jurisdiction, the within named GERARD F.
GANEY and THOMAS McCUTCHEON, who acknowledged that they are the
Senior Vice President and Assistant Secretary, 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 ____ 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 5200 Amboy Road, Staten Island,
New York 10312; 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 ____ day of April, 1994.
_________________________
CHRISTINE C. COLLINS
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
Commission Expires March 30, 1994
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this ____ 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 ____ 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 ____ 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 ____ 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 ____ 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, 199_
<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, ___% Series due ____
Due April 1, ____
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, ____, 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 ___% 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 ___% 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, ___% Series due ____
Due April 1, ____
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, ___% Series due ____, all bonds of all series
issued and to be issued under and equally secured (except in so
far 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, ___% Series due ____
Due April 1, ____
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, ____, 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 ___% 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 ___% 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, ___% Series due ____
Due April 1, ____
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, ___% Series due ____, all
bonds of all series issued and to be issued under and equally
secured (except in so far 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-2(e)
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 , 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 (formerly 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 (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, Citibank, N.A., 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
______, _____ and ______ dated as of April __, 1994, providing,
among other things, for the issue and sale by the Company of
$60,000,000 aggregate principal amount of First Mortgage Bonds,
___% Series due ____ (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
Name: Glenn E. Harder
Title: Vice President-Financial
Strategies and Treasurer
UNITED STATES TRUST COMPANY OF NEW YORK
as Corporate Trustee
By
GERARD F. GANEY, as
Individual Trustee
Exhibit B-3(e)
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 __, 1994, is made by and between Entergy
Corporation (formerly 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 (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, Citibank, N.A. 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
______, _____ and ______ dated as of April __, 1994, providing,
among other things, for the issue and sale by the Company of
$60,000,000 aggregate principal amount of First Mortgage Bonds,
___% Series due ____ (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 (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 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.
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
SYSTEM ENERGY RESOURCES, INC.
By:
Name: Glenn E. Harder
Title: Vice President-Financial
Strategies and Treasurer
UNITED STATES TRUST COMPANY
OF NEW YORK, as Corporate Trustee
By:
GERARD F. GANEY,
as Individual Trustee
