UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
In the Matter of
SYSTEM ENERGY RESOURCES, INC. CERTIFICATE
PURSUANT TO
File No. 70-8511 RULE 24
(Public Utility Holding Company
Act of 1935)
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transaction described below, which was proposed, among others, by
System Energy Resources, Inc. ("Company") in the Application-
Declaration on Form U-1, as amended, in the above File
("Application-Declaration"), has been carried out in accordance
with the terms and conditions of, and for the purposes
represented by the Application-Declaration and pursuant to the
Orders of the Securities and Exchange Commission dated May 9,
1995 (Release No. 35-26287) and August 18, 1995 (Release No. 35-
26358) with respect thereto.
On August 1, 1996, the Company issued and sold by
negotiated public offering to Morgan Stanley & Co., Incorporated,
Bear, Stearns & Co. Inc., Goldman, Sachs & Co., and Lehman
Brothers Inc., as underwriters, $100 million in aggregate
principal amount of First Mortgage Bonds 7.28% Series due August
1, 1999 and $135 million aggregate principal amount of First
Mortgage Bonds 7.71% Series due 2001 (collectively, the "Bonds"),
issued pursuant to the Twentieth and Twenty-first Supplemental
Indentures, respectively, each dated as of August 1, 1996 between
the Company and United States Trust Company of New York and
Gerard F. Ganey as trustees (the "Trustees"), and Officer's
Certificates each dated August 1, 1996 (the "Officers's
Certificates"), establishing the terms of each said series of
Bonds.
Attached hereto and incorporated by reference are:
Exhibit A-2(a)(1) - Conformed copy of Twentieth Supplemental
Indenture between the Company and the
Trustees.
Exhibit A-2(a)(2) - Conformed copy of the Twenty-first
Supplemental Indenture between the Company
and the Trustees.
Exhibit A-2(b)(1) - Conformed copy of Officer's Certificate
establishing terms of 7.28% Series.
Exhibit A-2(b)(2) - Conformed copy of Officer's Certificate
establishing terms of 7.71% Series.
Exhibit B-2(a) - Conformed copy of the Thirtieth Assignment
of the Availability Agreement.
Exhibit B-2(b) - Conformed copy of the Thirty-first
Assignment of the Availability Agreement.
Exhibit B-3(a) - Conformed copy of the Thirtieth Assignment
of the Capital Funds Agreement.
Exhibit B-3(b) - Conformed copy of the Thirty-first
Assignment of the Capital Funds Agreement.
Exhibit B-12(a) - Conformed copy of Underwriting Agreement for
sale of the Bonds.
Exhibit F-1(b) - Post-effective opinion of Wise Carter Child
& Caraway, Professional Association.
Exhibit F-2(b) - Post-effective opinion of Reid & Priest LLP.
Exhibit C-1(a) - Copy of Prospectus used in connection with
the sale of the Bonds (previously filed in
333-02503 and incorporated herein by
reference).
IN WITNESS WHEREOF, the Company has caused this
certificate to be executed this 9th day of August, 1996.
SYSTEM ENERGY RESOURCES, INC.
By: /s/. William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
Exhibit A-2(a)(1)
__________________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
UNITED STATES TRUST COMPANY OF NEW YORK
AND
GERARD F. GANEY
(Successor to Malcolm J. Hood),
Trustees.
___________________________________
Twentieth Supplemental Indenture
Dated as of August 1, 1996
TO
MORTGAGE AND DEED OF TRUST
Dated as of June 15, 1977.
___________________________________
First Mortgage Bonds, 7.28% Series due 1999
__________________________________________________
Prepared by:
Reid & Priest LLP
40 West 57th Street
New York, New York 10019-4097
(212) 603-2000
<PAGE>
TWENTIETH SUPPLEMENTAL INDENTURE, dated as of the 1st day of
August, 1996, 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
Nineteenth Supplemental Indenture April 1, 1994
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", "Eighteenth Supplemental Indenture" and "Nineteenth
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 Eighteenth 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 None
Pollution Control Series B $95,643,750 None
11% Series due 2000 $300,000,000 None
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 None
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 None
8.25% Series due 2002 $70,000,000 $70,000,000
6% Series due 1998 $60,000,000 $60,000,000
7 5/8% Series due 1999 $60,000,000 $60,000,000
which bonds are also sometimes called bonds of the First through
Seventeenth 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 Nineteenth 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 Nineteenth 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.
Availability Agreement shall mean the Availability
Agreement, dated as of June 21, 1974, as amended from time to
time, among the Company, Entergy Arkansas, Entergy Louisiana,
Entergy Mississippi and Entergy New Orleans.
Basic Agreements shall mean the Availability Agreement, the
Capital Funds Agreement, the Sales Agreement, the System
Agreement, the Thirtieth Supplementary Capital Funds Agreement
and the Thirtieth 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.
Entergy shall mean Entergy Corporation, a Delaware
corporation (successor to Entergy Corporation, a Florida
corporation).
Entergy Arkansas shall mean Entergy Arkansas, Inc., formerly
Arkansas Power & Light Company, an Arkansas corporation.
Entergy Louisiana shall mean Entergy Louisiana, Inc.,
formerly Louisiana Power & Light Company, a Louisiana
corporation.
Entergy Mississippi shall mean Entergy Mississippi, Inc.,
formerly Mississippi Power & Light Company, a Mississippi
corporation.
Entergy New Orleans shall mean Entergy New Orleans, Inc.,
formerly New Orleans Public Service Inc., a Louisiana
corporation.
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.
Sales Agreement shall mean the Sales Agreement, dated as of
June 21, 1974, between Entergy Mississippi and the Company.
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.
Seventeenth Series shall have the meaning set forth in
Section 2.01 of the Nineteenth 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 Entergy Arkansas, Entergy
Louisiana, Entergy Mississippi and Entergy New Orleans, relating
to the sharing of generating capacity and other power resources.
System Companies shall mean Entergy Arkansas, Entergy
Louisiana, Entergy Mississippi, Entergy New Orleans 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, as amended) other than the Company which shall become a
party to the System Agreement.
Thirtieth Assignment of Availability Agreement shall mean
the Thirtieth Assignment of Availability Agreement, Consent and
Agreement, dated as of August 1, 1996, among the Company, Entergy
Arkansas, Entergy Louisiana, Entergy Mississippi, Entergy New
Orleans and the Trustees.
Thirtieth Supplementary Capital Funds Agreement shall mean
the Thirtieth Supplementary Capital Funds Agreement and
Assignment, dated as of August 1, 1996, 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 EIGHTEENTH SERIES
SECTION 2.01. Bonds of the Eighteenth Series. There shall be
a series of bonds issued pursuant to the Indenture designated
"7.28 Series due 1999" (herein sometimes referred to as the
"Eighteenth 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
Eighteenth Series shall mature on August 1, 1999, and shall be
issued as fully registered bonds in denominations of $1,000 and,
at the option of the Company, in any multiple or multiples of
$1,000 (the exercise of such option to be evidenced by the
execution and delivery thereof); they shall bear interest at the
rate of 7.28% per annum, until the principal of any such bond
shall have become due and payable, and shall thereafter bear
interest on any overdue principal, on any overdue premium and (to
the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the
rate of 7.28% per annum, the first interest payment to be made
February 1, 1997, for the period from August 1, 1996 to February
1, 1997, with subsequent interest payments to be made
semiannually on February 1 and August 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 Eighteenth Series shall not be
redeemable at the option of the Company.
(b) The bonds of the Eighteenth 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 Eighteenth 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
Eighteenth 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 Eighteenth 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 Eighteenth
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 Eighteenth Series.
ARTICLE III
ADDITIONAL BOND PROVISIONS
SECTION 3.01. Limit on Aggregate Amount. Bonds of the
Eighteenth Series shall be limited to One Hundred Million Dollars
($100,000,000) 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 Eighteenth Series shall be dated as provided in Section
2.03 of the Original Indenture and bear interest from August 1,
1996, provided that if any bond of the Eighteenth 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 Eighteenth
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 Eighteenth Series is registered at the close of
business on any record date for the Eighteenth 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 Eighteenth 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 Eighteenth 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 Eighteenth Series are registered on the
day immediately preceding the date of payment of such defaulted
interest. Any bond of the Eighteenth Series issued upon any
transfer or exchange subsequent to the record date for the
Eighteenth 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 Eighteenth Series" as
used with respect to any interest payment date shall mean July 15
for interest payable August 1 and shall mean January 15 for
interest payable February 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 Eighteenth
Series, and within sixty (60) days of such disposition of the
Mortgaged and Pledged Property it will redeem all of the bonds of
the Eighteenth 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
Eighteenth 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 Eighteenth 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 Eighteenth 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 Eighteenth 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 Thirtieth Supplementary Capital Funds Agreement and the
Thirtieth 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 Thirtieth Supplementary
Capital Funds Agreement, the Availability Agreement and the
Thirtieth 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
Thirtieth Supplementary Capital Funds Agreement, the Availability
Agreement or the Thirtieth 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
Thirtieth Supplementary Capital Funds Agreement, the Availability
Agreement and the Thirtieth 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 Thirtieth Supplementary Capital Funds Agreement, the
Availability Agreement or the Thirtieth 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 Eighteenth 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 Eighteenth Series then Outstanding at the
Special Redemption Price.
ARTICLE VI
ADDITIONAL DEFAULTS
SECTION 6.01. Additional Defaults so long as Eighteenth
Series Bonds Outstanding. The following events shall be
additional Defaults so long as the Eighteenth 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 Thirtieth
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
Thirtieth 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 Eighteenth 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 Thirtieth
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 Thirtieth
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 Eighteenth Series bonds then Outstanding;
(5) The Thirtieth Supplementary Capital Funds Agreement, the
Availability Agreement or the Thirtieth 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 Eighteenth 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 Entergy Arkansas, Entergy Louisiana, Entergy Mississippi
or Entergy New Orleans, 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 Entergy Arkansas or Entergy New
Orleans 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 EIGHTEENTH SERIES BONDS
SECTION 7.01. Additional Security. In addition to the
security provided under the Indenture, the Thirtieth Assignment
of Availability Agreement and the Thirtieth Supplementary Capital
Funds Agreement and all proceeds therefrom, shall be for the sole
and exclusive benefit of the holders of the Eighteenth 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 Eighteenth Series bonds, and any proceeds
therefrom shall be applied for the exclusive benefit of the
holders of the Eighteenth 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 Eighteenth Series
bonds and interest obligations for the payment of which and bonds
of the Eighteenth 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 Eighteenth 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 Eighteenth
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 Eighteenth
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 Eighteenth Series bonds or by their
attorneys appointed in writing) of the holders of a majority or
more in aggregate principal amount of the Eighteenth Series bonds
then Outstanding, and no consent for any such waiver or amendment
shall be required by holders of bonds other than the Eighteenth
Series bonds; provided, however, that without the consent of the
holder of an Eighteenth 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 Eighteenth 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
Eighteenth Series bonds then Outstanding.
SECTION 9.05. Preconsent to Termination of Availability
Agreement, Thirtieth Assignment of Availability Agreement,
Capital Funds Agreement and Thirtieth Supplementary Capital Funds
Agreement. The Company reserves the right to terminate the
Availability Agreement, the Thirtieth Assignment of Availability
Agreement, the Capital Funds Agreement and the Thirtieth
Supplementary Capital Funds Agreement, and each holder of the
bonds of the Eighteenth Series hereby consents to such
termination without any other further action by any holder of the
bonds of the Eighteenth 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 Thirtieth Assignment of
Availability Agreement, the Capital Funds Agreement and the
Thirtieth 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) With respect to each series of bonds established prior
to June 1, 1992, either (i) no bonds of such series remain
Outstanding or (ii) 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
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
or one of its Assistant Vice Presidents and Gerard F. Ganey for
all like purposes has hereunto set his hand and affixed his seal,
all as of the 1st day of August, 1996.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ William J. Regan, Jr.
Vice President and Treasurer
Attest:
/s/ Steven C. McNeal
Assistant Treasurer
Executed, sealed and delivered by System
Energy Resources, Inc. in the presence of:
/s/ Ann G. Roy
/s/ Denise C. Redmann
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Gerard F. Ganey
Senior Vice President
Attest:
/s/ Margaret Ciesmelewski
Assistant Vice President
Executed, sealed and delivered by United States
Trust Company of New York in the presence of:
/s/ Cynthia Chaney
/s/ Robert Lee
/s/ Gerard F. Ganey [L.S.]
Gerard F. Ganey
Executed, sealed and delivered by Gerard F. Ganey
in the presence of:
/s/ Cynthia Chaney
/s/ Robert Lee
<PAGE>
STATE OF LOUISIANA )
) .ss:
PARISH OF ORLEANS )
On this 30th day of July, 1996, 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 WILLIAM J.
REGAN, JR. and STEVEN C. MCNEAL, to me personally well known, who
stated that they were the Vice President and Treasurer and an
Assistant Treasurer, 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 30th day of July, 1996, before me appeared WILLIAM
J. REGAN, JR., to me personally known, who, being by me duly
sworn, did say that he is the Vice President and Treasurer 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
WILLIAM J. REGAN, JR., 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 30th day of July,
1996, within my jurisdiction, the within named WILLIAM J. REGAN,
JR. and STEVEN C. MCNEAL, who acknowledged that they are the Vice
President and Treasurer and an Assistant Treasurer, 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 30th day of July, 1996, before me personally came
WILLIAM J. REGAN, JR., to me known, who, being by me duly sworn,
did depose and say that he resides at 108 English Turn Drive, New
Orleans, Louisiana 70113, State of Louisiana; that he is the
Vice President and Treasurer 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 30th day of July, 1996.
/s/ Connie H. Wise
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 30th day of July, 1996, before me, CHRISTINE C.
COLLINS, a Notary Public duly commissioned, qualified and acting
within and for said County and State, appeared GERARD F. GANEY
and MARGARET CIESMELEWSKI, to me personally well known, who
stated that they were a Senior Vice President and an Assistant
Vice President, respectively, of UNITED STATES TRUST COMPANY OF
NEW YORK, a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and
in the name and behalf of said corporation; and further stated
and acknowledged that they had so signed, executed and delivered
said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On this 30th day of July, 1996, 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 30th day of July,
1996 within my jurisdiction, the within named GERARD F. GANEY and
MARGARET CIESMELEWSKI, who acknowledged that they are the Senior
Vice President and Assistant Vice President, respectively of
UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation,
and that for and on behalf of the said corporation, and as its
act and deed, they executed the above and foregoing instrument,
after first having been duly authorized by the corporation so to
do.
On this 30th day of July, 1996, before me personally came
GERARD F. GANEY, to me known, who, being by me duly sworn, did
depose and say that he resides at 45 Dawn Drive, Basking Ridge,
New Jersey 07920; that he is a Senior Vice President of UNITED
STATES TRUST COMPANY OF NEW YORK, the corporation described in
and which executed the above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Trustees of said corporation, and that he signed his name
thereto by like order.
Given under my hand and seal this 30th day of July, 1996.
/s/ Christine C. Collins
Christine C. Collins
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
Commission Expires March 30, 1998
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this 30th day of July, 1996, 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 30th day of July, 1996, 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 30th day of July, 1996
within my jurisdiction, the within named GERARD F. GANEY, who
acknowledged that he executed the above and foregoing instrument.
On this 30th day of July, 1996, 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 30th day of July, 1996.
/s/ Christine C. Collins
Christine C. Collins
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
My Commission Expires March 30, 1998
<PAGE>
ANNEX A
[FORM OF REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.28% Series due 1999
Due August 1, 1999
No. R $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received,
hereby promises to pay to ______________ or registered assigns,
on August 1, 1999, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, __________________
Million Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay to the registered owner hereof interest
thereon from the date hereof, at the rate of 7.28% per annum in
like coin or currency at said office or agency on February 1,
1997 for the period from August 1, 1996 to February 1, 1997 and
thereafter on February 1 and August 1 in each year, until the
principal of this bond shall have become due and payable, and to
pay interest on any overdue principal and on any overdue premium
and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at
the rate of 7.28% per annum, provided, that the interest so
payable on any February 1 or August 1 will, subject to certain
exceptions set out in the Twentieth 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 January 15 or July 15,
as the case may be, next preceding such interest payment date.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By............................
[Vice] President
Attest:
............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By..............................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.28% Series due 1999
Due August 1, 1999
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First
Mortgage Bonds, 7.28% Series due 1999, all bonds of all series
issued and to be issued under and equally secured (except insofar
as any sinking or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series and as
further specified therein) by a Mortgage and Deed of Trust
(herein, together with any indenture supplemental thereto
including the Twentieth 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, Nineteenth and Twentieth Supplemental
Indentures to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security
(including certain additional security not given to all bonds),
the rights of the holders of the bonds and of the Trustees in
respect thereof, the duties and immunities of the Trustees and
the terms and conditions upon which the bonds are and are to be
secured and the circumstances under which additional bonds may be
issued. With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or the rights of the holders of
the bonds and/or coupons and/or the terms and provisions of the
Mortgage may be modified or altered by such affirmative vote or
votes of the holders of bonds then outstanding as are specified
in the Mortgage.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by
the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, upon surrender and
cancellation of this bond, and, thereupon, a new fully registered
bond of the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided in the
Mortgage. Subject to the foregoing provisions as to the person
entitled to receive payment of interest hereon, the Company and
the Trustees may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series
for a period of ten (10) days next preceding any interest payment
date for bonds of said series, or next preceding any designation
of bonds of said series to be redeemed, and the Company shall not
be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
The bonds of this series shall not be redeemable at the
option of the Company.
The bonds of this series are redeemable at any time prior to
maturity at a Special Redemption Price equal to the principal
amount of the bonds to be redeemed, together with accrued
interest to the date fixed for redemption, all as more fully
provided in the Mortgage.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Corporate
Trustee by The Depository Trust Company (55 Water Street, New
York, New York) or its successor (the "Depositary"), this bond
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).]
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.28% Series due 1999
Due August 1, 1999
No. TR $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received,
hereby promises to pay to _______________ or registered assigns,
on August 1, 1999, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, ____________________
Million Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay to the registered owner hereof interest
thereon from the date hereof, at the rate of 7.28% per annum in
like coin or currency at said office or agency on February 1,
1997 for the period from August 1, 1996 to February 1, 1997 and
thereafter on February 1 and August 1 in each year, until the
principal of this bond shall have become due and payable, and to
pay interest on any overdue principal and on any overdue premium
and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at
the rate of 7.28% per annum, provided, that the interest so
payable on any February 1 or August 1 will, subject to certain
exceptions set out in the Twentieth 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 January 15 or July 15,
as the case may be, next preceding such interest payment date.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By...........................
[Vice] President
Attest:
..................................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By..............................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.28% Series due 1999
Due August 1, 1999
This bond is a temporary bond and is one of an issue of
bonds of the Company issuable in series and is one of a series
known as its First Mortgage Bonds, 7.28% Series due 1999, all
bonds of all series issued and to be issued under and equally
secured (except insofar as any sinking or other fund, established
in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series and as further specified therein) by a Mortgage
and Deed of Trust (herein, together with any indenture
supplemental thereto including the Twentieth 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,
Nineteenth and Twentieth 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 A-2(a)(2)
__________________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
UNITED STATES TRUST COMPANY OF NEW YORK
AND
GERARD F. GANEY
(Successor to Malcolm J. Hood),
Trustees.
___________________________________
Twenty-first Supplemental Indenture
Dated as of August 1, 1996
TO
MORTGAGE AND DEED OF TRUST
Dated as of June 15, 1977.
___________________________________
First Mortgage Bonds, 7.71% Series due 2001
__________________________________________________
Prepared by:
Reid & Priest LLP
40 West 57th Street
New York, New York 10019-4097
(212) 603-2000
<PAGE>
TWENTY-FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day
of August, 1996, 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
Nineteenth Supplemental Indenture April 1, 1994
Twentieth Supplemental Indenture August 1, 1996
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", "Eighteenth Supplemental Indenture", "Nineteenth
Supplemental Indenture" and "Twentieth 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 Nineteenth 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 None
Pollution Control Series B $95,643,750 None
11% Series due 2000 $300,000,000 None
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 None
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 None
8.25% Series due 2002 $70,000,000 $70,000,000
6% Series due 1998 $60,000,000 $60,000,000
7 5/8% Series due 1999 $60,000,000 $60,000,000
7.28% Series due 1999 $100,000,000 $100,000,000
which bonds are also sometimes called bonds of the First through
Eighteenth 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 Twentieth 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 Twentieth 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.
Availability Agreement shall mean the Availability
Agreement, dated as of June 21, 1974, as amended from time to
time, among the Company, Entergy Arkansas, Entergy Louisiana,
Entergy Mississippi and Entergy New Orleans.
Basic Agreements shall mean the Availability Agreement, the
Capital Funds Agreement, the Sales Agreement, the System
Agreement, the Thirty-first Supplementary Capital Funds Agreement
and the Thirty-first 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.
Eighteenth Series shall have the meaning set forth in
Section 2.01 of the Twentieth Supplemental Indenture.
Entergy shall mean Entergy Corporation, a Delaware
corporation (successor to Entergy Corporation, a Florida
corporation).
Entergy Arkansas shall mean Entergy Arkansas, Inc., formerly
Arkansas Power & Light Company, an Arkansas corporation.
Entergy Louisiana shall mean Entergy Louisiana, Inc.,
formerly Louisiana Power & Light Company, a Louisiana
corporation.
Entergy Mississippi shall mean Entergy Mississippi, Inc.,
formerly Mississippi Power & Light Company, a Mississippi
corporation.
Entergy New Orleans shall mean Entergy New Orleans, Inc.,
formerly New Orleans Public Service Inc., a Louisiana
corporation.
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.
Sales Agreement shall mean the Sales Agreement, dated as of
June 21, 1974, between Entergy Mississippi and the Company.
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.
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 Entergy Arkansas, Entergy
Louisiana, Entergy Mississippi and Entergy New Orleans, relating
to the sharing of generating capacity and other power resources.
System Companies shall mean Entergy Arkansas, Entergy
Louisiana, Entergy Mississippi, Entergy New Orleans 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, as amended) other than the Company which shall become a
party to the System Agreement.
Thirty-first Assignment of Availability Agreement shall mean
the Thirty-first Assignment of Availability Agreement, Consent
and Agreement, dated as of August 1, 1996, among the Company,
Entergy Arkansas, Entergy Louisiana, Entergy Mississippi, Entergy
New Orleans and the Trustees.
Thirty-first Supplementary Capital Funds Agreement shall
mean the Thirty-first Supplementary Capital Funds Agreement and
Assignment, dated as of August 1, 1996, 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 NINETEENTH SERIES
SECTION 2.01. Bonds of the Nineteenth Series. There shall be
a series of bonds issued pursuant to the Indenture designated
"7.71% Series due 2001" (herein sometimes referred to as the
"Nineteenth 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
Nineteenth Series shall mature on August 1, 2001, and shall be
issued as fully registered bonds in denominations of $1,000 and,
at the option of the Company, in any multiple or multiples of
$1,000 (the exercise of such option to be evidenced by the
execution and delivery thereof); they shall bear interest at the
rate of 7.71% per annum, until the principal of any such bond
shall have become due and payable, and shall thereafter bear
interest on any overdue principal, on any overdue premium and (to
the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the
rate of 7.71% per annum, the first interest payment to be made
February 1, 1997, for the period from August 1, 1996 to February
1, 1997, with subsequent interest payments to be made
semiannually on February 1 and August 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 Nineteenth Series shall not be
redeemable at the option of the Company.
(b) The bonds of the Nineteenth 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 Nineteenth 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
Nineteenth 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 Nineteenth 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 Nineteenth
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 Nineteenth Series.
ARTICLE III
ADDITIONAL BOND PROVISIONS
SECTION 3.01. Limit on Aggregate Amount. Bonds of the
Nineteenth Series shall be limited to One Hundred Thirty-Five
Million Dollars ($135,000,000) 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 Nineteenth Series shall be dated as provided in Section
2.03 of the Original Indenture and bear interest from August 1,
1996, provided that if any bond of the Nineteenth 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 Nineteenth
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 Nineteenth Series is registered at the close of
business on any record date for the Nineteenth 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 Nineteenth 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 Nineteenth 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 Nineteenth Series are registered on the
day immediately preceding the date of payment of such defaulted
interest. Any bond of the Nineteenth Series issued upon any
transfer or exchange subsequent to the record date for the
Nineteenth 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 Nineteenth Series" as
used with respect to any interest payment date shall mean July 15
for interest payable August 1 and shall mean January 15 for
interest payable February 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 Nineteenth
Series, and within sixty (60) days of such disposition of the
Mortgaged and Pledged Property it will redeem all of the bonds of
the Nineteenth 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
Nineteenth 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 Nineteenth 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 Nineteenth 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 Nineteenth 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 Thirty-first Supplementary Capital Funds Agreement and the
Thirty-first 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 Thirty-first
Supplementary Capital Funds Agreement, the Availability Agreement
and the Thirty-first 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 Thirty-first Supplementary Capital Funds
Agreement, the Availability Agreement or the Thirty-first
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 Thirty-first Supplementary
Capital Funds Agreement, the Availability Agreement and the
Thirty-first 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 Thirty-first
Supplementary Capital Funds Agreement, the Availability Agreement
or the Thirty-first 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 Nineteenth 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 Nineteenth Series then Outstanding at the
Special Redemption Price.
ARTICLE VI
ADDITIONAL DEFAULTS
SECTION 6.01. Additional Defaults so long as Nineteenth
Series Bonds Outstanding. The following events shall be
additional Defaults so long as the Nineteenth 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 Thirty-
first 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
Thirty-first 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 Nineteenth 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 Thirty-
first 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 Thirty-first
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 Nineteenth Series bonds then Outstanding;
(5) The Thirty-first Supplementary Capital Funds Agreement,
the Availability Agreement or the Thirty-first 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 Nineteenth 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 Entergy Arkansas, Entergy Louisiana, Entergy Mississippi
or Entergy New Orleans, 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 Entergy Arkansas or Entergy New
Orleans 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 NINETEENTH SERIES BONDS
SECTION 7.01. Additional Security. In addition to the
security provided under the Indenture, the Thirty-first
Assignment of Availability Agreement and the Thirty-first
Supplementary Capital Funds Agreement and all proceeds therefrom,
shall be for the sole and exclusive benefit of the holders of the
Nineteenth 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 Nineteenth Series bonds, and any
proceeds therefrom shall be applied for the exclusive benefit of
the holders of the Nineteenth 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 Nineteenth Series
bonds and interest obligations for the payment of which and bonds
of the Nineteenth 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 Nineteenth 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 Nineteenth
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 Nineteenth
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 Nineteenth Series bonds or by their
attorneys appointed in writing) of the holders of a majority or
more in aggregate principal amount of the Nineteenth Series bonds
then Outstanding, and no consent for any such waiver or amendment
shall be required by holders of bonds other than the Nineteenth
Series bonds; provided, however, that without the consent of the
holder of a Nineteenth 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 Nineteenth 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
Nineteenth Series bonds then Outstanding.
SECTION 9.05. Preconsent to Termination of Availability
Agreement, Thirty-first Assignment of Availability Agreement,
Capital Funds Agreement and Thirty-first Supplementary Capital
Funds Agreement. The Company reserves the right to terminate the
Availability Agreement, the Thirty-first Assignment of
Availability Agreement, the Capital Funds Agreement and the
Thirty-first Supplementary Capital Funds Agreement, and each
holder of the bonds of the Nineteenth Series hereby consents to
such termination without any other further action by any holder
of the bonds of the Nineteenth 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 Thirty-first Assignment of
Availability Agreement, the Capital Funds Agreement and the
Thirty-first 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) With respect to each series of bonds established prior
to June 1, 1992, either (i) no bonds of such series remain
Outstanding or (ii) 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
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
or one of its Assistant Vice Presidents and Gerard F. Ganey for
all like purposes has hereunto set his hand and affixed his seal,
all as of the 1st day of August, 1996.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ William J. Regan, Jr.
Vice President and Treasurer
Attest:
/s/ Steven C. McNeal
Assistant Treasurer
Executed, sealed and delivered by System
Energy Resources, Inc. in the presence of:
/s/ Ann G. Roy
/s/ Denise C. Redmann
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Gerard F. Ganey
Senior Vice President
Attest:
/s/ Margaret Ciesmelewski
Assistant Vice President
Executed, sealed and delivered by United States
Trust Company of New York in the presence of:
/s/ Cynthia Chaney
/s/ Robert Lee
/s/ Gerard F. Ganey [L.S.]
Gerard F. Ganey
Executed, sealed and delivered by Gerard F. Ganey
in the presence of:
/s/ Cynthia Chaney
/s/ Robert Lee
<PAGE>
STATE OF LOUISIANA )
) .ss:
PARISH OF ORLEANS )
On this 30th day of July, 1996, 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 WILLIAM J.
REGAN, JR. and STEVEN C. MCNEAL, to me personally well known, who
stated that they were the Vice President and Treasurer and an
Assistant Treasurer, 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 30th day of July, 1996, before me appeared WILLIAM
J. REGAN, JR., to me personally known, who, being by me duly
sworn, did say that he is the Vice President and Treasurer 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
WILLIAM J. REGAN, JR., 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 30th day of July,
1996, within my jurisdiction, the within named WILLIAM J. REGAN,
JR. and STEVEN C. MCNEAL, who acknowledged that they are the Vice
President and Treasurer and an Assistant Treasurer, 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 30th day of July, 1996, before me personally came
WILLIAM J. REGAN, JR., to me known, who, being by me duly sworn,
did depose and say that he resides at 108 English Turn Drive, New
Orleans, Louisiana 70113, State of Louisiana; that he is the
Vice President and Treasurer 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 30th day of July, 1996.
/s/ Connie H. Wise
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 30th day of July, 1996, before me, CHRISTINE C.
COLLINS, a Notary Public duly commissioned, qualified and acting
within and for said County and State, appeared GERARD F. GANEY
and MARGARET CIESMELEWSKI, to me personally well known, who
stated that they were a Senior Vice President and an Assistant
Vice President, respectively, of UNITED STATES TRUST COMPANY OF
NEW YORK, a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and
in the name and behalf of said corporation; and further stated
and acknowledged that they had so signed, executed and delivered
said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On this 30th day of July, 1996, 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 30th day of July,
1996 within my jurisdiction, the within named GERARD F. GANEY and
MARGARET CIESMELEWSKI, who acknowledged that they are the Senior
Vice President and Assistant Vice President, respectively of
UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation,
and that for and on behalf of the said corporation, and as its
act and deed, they executed the above and foregoing instrument,
after first having been duly authorized by the corporation so to
do.
On this 30th day of July, 1996, before me personally came
GERARD F. GANEY, to me known, who, being by me duly sworn, did
depose and say that he resides at 45 Dawn Drive, Basking Ridge,
New Jersey 07920; that he is a Senior Vice President of UNITED
STATES TRUST COMPANY OF NEW YORK, the corporation described in
and which executed the above instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Trustees of said corporation, and that he signed his name
thereto by like order.
Given under my hand and seal this 30th day of July, 1996.
/s/ Christine C. Collins
Christine C. Collins
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
Commission Expires March 30, 1998
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this 30th day of July, 1996, 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 30th day of July, 1996, 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 30th day of July, 1996
within my jurisdiction, the within named GERARD F. GANEY, who
acknowledged that he executed the above and foregoing instrument.
On this 30th day of July, 1996, 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 30th day of July, 1996.
/s/ Christine C. Collins
Christine C. Collins
Notary Public, State of New York
No. 03-4624735
Qualified in Bronx County
My Commission Expires March 30, 1998
<PAGE>
ANNEX A
[FORM OF REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.71% Series due 2001
Due August 1, 2001
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 August 1, 2001, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, __________________
Million Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay to the registered owner hereof interest
thereon from the date hereof, at the rate of 7.71% per annum in
like coin or currency at said office or agency on February 1,
1997 for the period from August 1, 1996 to February 1, 1997 and
thereafter on February 1 and August 1 in each year, until the
principal of this bond shall have become due and payable, and to
pay interest on any overdue principal and on any overdue premium
and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at
the rate of 7.71% per annum, provided, that the interest so
payable on any February 1 or August 1 will, subject to certain
exceptions set out in the Twenty-first 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 January 15 or July 15,
as the case may be, next preceding such interest payment date.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By............................
[Vice] President
Attest:
............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By.............................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.71% Series due 2001
Due August 1, 2001
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First
Mortgage Bonds, 7.71% Series due 2001, all bonds of all series
issued and to be issued under and equally secured (except insofar
as any sinking or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series and as
further specified therein) by a Mortgage and Deed of Trust
(herein, together with any indenture supplemental thereto
including the Twenty-first 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, Nineteenth, Twentieth and Twenty-first
Supplemental Indentures to the Mortgage for a description of the
property mortgaged and pledged, the nature and extent of the
security (including certain additional security not given to all
bonds), the rights of the holders of the bonds and of the
Trustees in respect thereof, the duties and immunities of the
Trustees and the terms and conditions upon which the bonds are
and are to be secured and the circumstances under which
additional bonds may be issued. With the consent of the Company
and to the extent permitted by and as provided in the Mortgage,
the rights and obligations of the Company and/or the rights of
the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
outstanding as are specified in the Mortgage.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by
the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, upon surrender and
cancellation of this bond, and, thereupon, a new fully registered
bond of the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided in the
Mortgage. Subject to the foregoing provisions as to the person
entitled to receive payment of interest hereon, the Company and
the Trustees may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series
for a period of ten (10) days next preceding any interest payment
date for bonds of said series, or next preceding any designation
of bonds of said series to be redeemed, and the Company shall not
be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
The bonds of this series shall not be redeemable at the
option of the Company.
The bonds of this series are redeemable at any time prior to
maturity at a Special Redemption Price equal to the principal
amount of the bonds to be redeemed, together with accrued
interest to the date fixed for redemption, all as more fully
provided in the Mortgage.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Corporate
Trustee by The Depository Trust Company (55 Water Street, New
York, New York) or its successor (the "Depositary"), this bond
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).]
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.71% Series due 2001
Due August 1, 2001
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 August 1, 2001, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, ____________________
Million Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay to the registered owner hereof interest
thereon from the date hereof, at the rate of 7.71% per annum in
like coin or currency at said office or agency on February 1,
1997 for the period from August 1, 1996 to February 1, 1997 and
thereafter on February 1 and August 1 in each year, until the
principal of this bond shall have become due and payable, and to
pay interest on any overdue principal and on any overdue premium
and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at
the rate of 7.71% per annum, provided, that the interest so
payable on any February 1 or August 1 will, subject to certain
exceptions set out in the Twenty-first 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 January 15 or July 15,
as the case may be, next preceding such interest payment date.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By ........................
[Vice] President
Attest:
..............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By.............................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, 7.71% Series due 2001
Due August 1, 2001
This bond is a temporary bond and is one of an issue of
bonds of the Company issuable in series and is one of a series
known as its First Mortgage Bonds, 7.71% Series due 2001, all
bonds of all series issued and to be issued under and equally
secured (except insofar as any sinking or other fund, established
in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series and as further specified therein) by a Mortgage
and Deed of Trust (herein, together with any indenture
supplemental thereto including the Twenty-first 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,
Nineteenth, Twentieth and Twenty-first 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 A-2(b)(1)
SYSTEM ENERGY RESOURCES, INC.
AUTHORIZED OFFICER'S CERTIFICATE WITH RESPECT TO ISSUANCE
OF FIRST MORTGAGE BONDS
The undersigned, Steven C. McNeal, Assistant
Treasurer of SYSTEM ENERGY RESOURCES, INC. (the "Company"),
acting pursuant to the authorization contained in
resolutions of the Board of Directors duly adopted on May
13, 1996 (of which this certificate is a part), does hereby
(i) authorize, adopt and approve the following terms for the
Eighteenth Series of the Company's First Mortgage Bonds (the
"Bonds") to be issued under a Mortgage and Deed of Trust
dated as of June 15, 1977, as heretofore supplemented and
amended and as the same shall be supplemented by a Twentieth
Supplemental Indenture dated as of August 1, 1996, (the
"Mortgage") made by the Company to United States Trust
Company of New York and Gerard F. Ganey (successor to
Malcolm J. Hood), as Trustees, which Bonds have been
registered for sale with the Securities and Exchange
Commission ("SEC") pursuant to Registration Statements on
Form S-3 (Nos. 33-47662 and 333-06717) under the Securities
Act of 1933, as amended, and approved for issuance by the
SEC pursuant to the Public Utility Holding Company Act of
1935, as amended (No. 70-8511), (ii) certify that such terms
are within the authority granted to the undersigned in the
aforementioned resolutions, (iii) certify that the issuance
and sale of the Bonds by the Company on such terms has been
determined by the undersigned to be in the best interests of
the Company and (iv) certify that, to the best knowledge of
the undersigned, such terms are competitive market terms as
of the date hereof, in light of the credit rating of the
Company, nature of the Bonds and other relevant factors:
1. Title and Designation First Mortgage Bonds
of the Bonds: 7.28% Series due August 1, 1999.
2. Aggregate principal $100,000,000.
amount of the Bonds:
3. Date on which the August 1, 1999.
principal of the Bonds
shall become payable:
4. With respect to
interest on the Bonds:
(a) The rate or method of 7.28% per annum.
calculation thereof:
(b) The rate on overdue 7.28% per annum.
principal and overdue
interest:
(c) The date from which August 1, 1996.
such interest shall
accrue:
(d) Interest payment dates: February 1 and August 1 of each
year commencing February 1, 1997.
(e) Record date for January 15 and July 15 is next
interest payable on any preceding the applicable interest
payment date: payment date.
5. Place or places where The office or agency of the
the Bonds shall be Company in the Borough of
payable: Manhattan, The City of New York,
New York.
6. With respect to The Bonds shall not be redeemable
redemption, in whole or at the option of the Company prior
in part, of the Bonds: to maturity.
7. With respect to the
mandatory redemption,
purchase or payment of
the Bonds:
(a) any provision for a N/A.
sinking or analogous
fund or upon the
happening of a
specified event:
8. Denominations in which $1,000 and integral multiples
the Bonds are issuable: thereof.
9. (a) Whether Securities of Registered.
the Series are issuable
as Registered Securities,
Unregistered Securities
(with or without interest
coupons), or any
combination thereof:
(b) Any restrictions None.
applicable to the
offering, sale or
resale of Registered
or Unregistered
Securities:
(c) Terms, if any, upon None.
which Unregistered
Securities of the
Series may be exchanged
for Registered
Securities of the
Series and vice versa:
10.The form of the Bonds: Registered Bonds.
11.Extent to which the The Bonds will be issued in the
Bonds shall be issued form of one fully registered bond
in temporary or that will be deposited with, or on
permanent global form, behalf of, The Depository Trust
and the manner in which Company, New York, New York
payments on a temporary ("DTC"), or such other depository
or permanent global as may be subsequently designated,
Bond will be made: and registered in the name of Cede
& Co., as nominee for DTC.
Payments of principal and premium,
if any, and interest on the Bonds
will be made to DTC or its
nominee, as the case may be, as
the holder of the Bonds.
12.Form of Sale: Negotiated public offering of the
Bonds, pursuant to terms of the
Underwriting Agreement among the
Company and Morgan Stanley & Co.
Incorporated, Bear, Stearns & Co.
Inc., Goldman, Sachs & Co., and
Lehman Brothers Inc dated as of
July 29, 1996.
13.Issue price to public 100%.
of the Bonds:
14.Underwriters' .50%.
commission or discount
as a percentage of the
principal amount of the
Bonds to be issued:
15.Price to be paid to the 99.50%.
Company:
16.Trustee, Paying Agent United States Trust Company of New
and Registrar: York.
The capitalized terms used in this Certificate
(unless otherwise defined herein) have the meanings given to
them in the Indenture.
IN WITNESS WHEREOF the undersigned has executed
this Certificate this 29th day of July, 1996.
Name: _________________________________
Steven C. McNeal
Assistant Treasurer
The undersigned hereby acknowledges receipt of
this Certificate, this 29th day of July, 1996, and certifies
that Steven C. McNeal is the duly elected Assistant
Treasurer of System Energy Resources, Inc. and that the
signature set forth above is his true signature.
_____________________________
Christopher T. Screen
Assistant Secretary
Exhibit A-2(b)(2)
SYSTEM ENERGY RESOURCES, INC.
AUTHORIZED OFFICER'S CERTIFICATE WITH RESPECT TO ISSUANCE
OF FIRST MORTGAGE BONDS
The undersigned, Steven C. McNeal, Assistant
Treasurer of SYSTEM ENERGY RESOURCES, INC. (the "Company"),
acting pursuant to the authorization contained in
resolutions of the Board of Directors duly adopted on July
23, 1996 (of which this certificate is a part), does hereby
(i) authorize, adopt and approve the following terms for the
Nineteenth Series of the Company's First Mortgage Bonds (the
"Bonds") to be issued under a Mortgage and Deed of Trust
dated as of June 15, 1977, as heretofore supplemented and
amended and as the same shall be supplemented by a Twenty-
first Supplemental Indenture dated as of August 1, 1996,
(the "Mortgage") made by the Company to United States Trust
Company of New Yorkand Gerard F. Ganey (successor to Malcolm
J. Hood), as Trustees, which Bonds have been registered for
sale with the Securities and Exchange Commission ("SEC")
pursuant to Registration Statements on Form S-3 (Nos. 33-
47662 and 333-06717) under the Securities Act of 1933, as
amended, and approved for issuance by the SEC pursuant to
the Public Utility Holding Company Act of 1935, as amended
(No. 70-8511), (ii) certify that such terms are within the
authority granted to the undersigned in the aforementioned
resolutions, (iii) certify that the issuance and sale of the
Bonds by the Company on such terms has been determined by
the undersigned to be in the best interests of the Company
and (iv) certify that, to the best knowledge of the
undersigned, such terms are competitive market terms as of
the date hereof, in light of the credit rating of the
Company, nature of the Bonds and other relevant factors:
1. Title and Designation First Mortgage Bonds
of the Bonds: 7.71% Series due August 1, 2001.
2. Aggregate principal $135,000,000.
amount of the Bonds:
3. Date on which the August 1, 2001.
principal of the Bonds
shall become payable:
4. With respect to
interest on the Bonds:
(a) The rate or method of 7.71% per annum.
calculation thereof:
(b) The rate on overdue 7.71% per annum.
principal and overdue
interest:
(c) The date from which August 1, 1996.
such interest shall
accrue:
(d) Interest payment dates: February 1 and August 1 of each
year commencing February 1, 1997.
(e) Record date for January 15 and July 15 is next
interest payable on any preceding the applicable interest
payment date: payment date.
5. Place or places where The office or agency of the
the Bonds shall be Company in the Borough of
payable: Manhattan, The City of New York,
New York.
6. With respect to The Bonds shall not be redeemable
redemption, in whole or at the option of the Company prior
in part, of the Bonds: to maturity.
7. With respect to the
mandatory redemption,
purchase or payment of
the Bonds:
(a) any provision for a N/A.
sinking or analogous
fund or upon the
happening of a
specified event:
8. Denominations in which $1,000 and integral multiples
the Bonds are issuable: thereof.
9. (a) Whether Securities of Registered.
the Series are issuable
as Registered Securities,
Unregistered Securities
(with or without interest
coupons), or any
combination thereof:
(b) Any restrictions None.
applicable to the
offering, sale or
resale of Registered
or Unregistered
Securities:
(c) Terms, if any, upon None.
which Unregistered
Securities of the
Series may be exchanged
for Registered
Securities of the
Series and vice versa:
10.The form of the Bonds: Registered Bonds.
11.Extent to which the The Bonds will be issued in the
Bonds shall be issued form of one fully registered bond
in temporary or that will be deposited with, or on
permanent global form, behalf of, The Depository Trust
and the manner in which Company, New York, New York
payments on a temporary ("DTC"), or such other depository
or permanent global as may be subsequently designated,
Bond will be made: and registered in the name of Cede
& Co., as nominee for DTC.
Payments of principal and premium,
if any, and interest on the Bonds
will be made to DTC or its
nominee, as the case may be, as
the holder of the Bonds.
12.Form of Sale: Negotiated public offering of the
Bonds, pursuant to terms of the
Underwriting Agreement among the
Company and Morgan Stanley & Co.,
Incorporated, Bear, Stearns & Co.
Inc., Goldman, Sachs & Co. and
Lehman Brothers Inc. dated as of
July 29, 1996.
13.Issue price to public 100%.
of the Bonds:
14.Underwriters' .625%.
commission or discount
as a percentage of the
principal amount of the
Bonds to be issued:
15.Price to be paid to the 99.375%.
Company:
16.Trustee, Paying Agent United States Trust Company of New
and Registrar: York.
The capitalized terms used in this Certificate
(unless otherwise defined herein) have the meanings given to
them in the Indenture.
IN WITNESS WHEREOF the undersigned has executed
this Certificate this 29th day of July, 1996.
Name:_________________________________
Steven C. McNeal
Assistant Treasurer
The undersigned hereby acknowledges receipt of
this Certificate, this 29th day of July, 1996, and certifies
that Steven C. McNeal is the duly elected Assistant
Treasurer of System Energy Resources, Inc. and that the
signature set forth above is his true signature.
_____________________________
Christopher T. Screen
Assistant Secretary
Exhibit B-2(a)
THIRTIETH ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND
AGREEMENT
This Thirtieth Assignment of Availability Agreement,
Consent and Agreement (hereinafter referred to as "this
Assignment"), dated as of August 1, 1996, is made by and between
System Energy Resources, Inc. (formerly Middle South Energy,
Inc.) (the "Company"), Entergy Arkansas, Inc., formerly Arkansas
Power & Light Company ("Entergy Arkansas") (successor in interest
to Arkansas Power & Light Company and Arkansas-Missouri Power
Company ("Ark-Mo")), Entergy Louisiana, Inc., formerly Louisiana
Power & Light Company ("Entergy Louisiana"), Entergy Mississippi,
Inc., formerly Mississippi Power & Light Company ("Entergy
Mississippi") and Entergy New Orleans, formerly New Orleans
Public Service Inc. ("Entergy New Orleans") (hereinafter Entergy
Arkansas, Entergy Louisiana, Entergy Mississippi and Entergy New
Orleans are called individually a "System Operating Company" and
collectively, the "System Operating Companies"), United States
Trust Company of New York, as trustee (hereinafter called the
"Corporate Trustee"), and Gerard F. Ganey (successor to Malcolm
J. Hood), as trustee (hereinafter called the "Individual
Trustee") (the Corporate Trustee and the Individual Trustee being
hereinafter called the "Trustees").
WHEREAS:
A. Entergy Corporation (successor to Middle South
Utilities, Inc.) ("Entergy") owns all of the outstanding common
stock of the Company and each of the System Operating Companies,
and the Company has a 90% undivided ownership and leasehold
interest in Unit No. 1 of the Grand Gulf Nuclear Electric Station
project ("Project") (more fully described in the "Indenture"
hereinafter referred to).
B. Prior hereto, (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the "Domestic
Agent") and said banks entered into an Amended and Restated Bank
Loan Agreement dated as of June 30, 1977 (the "Amended and
Restated Agreement"), the First Amendment thereto dated as of
March 20, 1980 (the "First Bank Loan Amendment"), the Second
Amended and Restated Bank Loan Agreement dated as of June 15,
1981 as amended by the First Amendment dated as of February 5,
1982 (as so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment) dated as of
June 30, 1977, between the Company, the System Operating
Companies, Ark-Mo and the Domestic Agent (the "First Assignment
of Availability Agreement"), the Company assigned to the Domestic
Agent (for the benefit of such banks), as collateral security for
the above loans, certain of the Company's rights under an
Availability Agreement dated as of June 21, 1974, as amended by
the First Amendment thereto dated as of June 30, 1977 (the
"Original Availability Agreement") between the Company, the
System Operating Companies and Ark-Mo; (iii) the First Bank Loan
Amendment, among other things, increased the amount of the loans
to be made by the banks party thereto to $808,000,000 and
pursuant to the Fourth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of March 20, 1980 (the "Fourth Assignment
of Availability Agreement"), the Company's same rights under the
Original Availability Agreement were further assigned as
collateral security for the loans made under the Amended and
Restated Agreement as amended by the First Bank Loan Agreement;
(iv) the Second Amended and Restated Bank Loan Agreement
provided, among other things, for (a) the making of revolving
credit loans by the banks named therein to the Company from time
to time in an aggregate amount not in excess of $1,311,000,000 at
any one time outstanding, and (b) the making of a term loan by
said banks in an aggregate amount not to exceed $1,311,000,000,
and pursuant to the Fifth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 15, 1981 (the "Fifth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement; and (v) the Second Bank Loan
Second Amendment, among other things, increased the amount of the
loans to be made by the banks party thereto to $1,711,000,000 and
pursuant to the Eighth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 30, 1983 (the "Eighth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement, as amended by the Second Bank
Loan Second Amendment.
C. Prior hereto (i) the Company, the System Operating
Companies, Ark-Mo, and the Trustees, as 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, an Eighteenth Supplemental Indenture
dated as of April 1, 1993, and a Nineteenth Supplemental
Indenture dated as of April 1, 1994 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; (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;
and (xv) 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, 7-5/8%
Series due 1999 (the "Seventeenth Series Bonds") issued under the
Mortgage, as supplemented by a Nineteenth Supplemental Indenture
dated as of April 1, 1994 between the Company and the Trustees,
entered into a Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement dated as of April 1, 1994 (the "Twenty-
ninth Assignment of Availability Agreement") (also substantially
in the form of this Agreement) to secure the Seventeenth Series
Bonds.
D. The Original Availability Agreement has been
amended by the First Amendment thereto dated as of June 30, 1977,
the Second Amendment thereto dated June 15, 1981, the Third
Amendment thereto dated June 28, 1984 and the Fourth Amendment
thereto dated as of June 1, 1989 (the Original Availability
Agreement, as so amended and as it may be further amended and
supplemented, is hereinafter referred to as the "Availability
Agreement").
E. Unit No. 1 and Unit No. 2 of the Project have been
designated by the Company and the System Operating Companies as
being subject to the Availability Agreement and as being System
Energy Generating Units (as defined in the Availability
Agreement) thereunder.
F. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent"), and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Assignment of Availability Agreement, Consent and
Agreement (substantially in the form of this Assignment) dated as
of February 5, 1982 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Sixth Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of said banks), as collateral security for
the above loans, certain of the Company's rights under the
Availability Agreement. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of February 18, 1983
between the Company, the System Operating Companies and the
Eurodollar Agent (the "Seventh Assignment of Availability
Agreement"), the Company assigned to the Eurodollar Agent (for
the benefit of the Eurodollar Banks), as collateral security for
such loans, certain of the Company's rights under the
Availability Agreement.
G. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement"),
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1983
between the Company, the System Operating Companies, the Bank and
Deposit Guaranty National Bank, as trustee (the "Ninth Assignment
of Availability Agreement"), the Company assigned to the Bank and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series A
Reimbursement Agreement and the Series A Bonds, certain of the
Company's rights under the Availability Agreement.
H. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement"), which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of June 1, 1984 between the Company, the
System Operating Companies, the Bank and Deposit Guaranty
National Bank, as trustee (the "Tenth Assignment of Availability
Agreement"), the Company assigned to the Bank and Deposit
Guaranty National Bank, as trustee, as collateral security for
the Company's obligations under the Series B Reimbursement
Agreement and the Series B Bonds, certain of the Company's rights
under the Availability Agreement.
I. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks"), were parties to a
letter of credit and reimbursement agreement dated as of
December 1, 1984 (the "Series C Reimbursement Agreement") which
provided, among other things, for the issuance by the Banks for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series C (the "Series C Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1984 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Twelfth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1984
between the Company, the System Operating Companies, the Banks
and Deposit Guaranty National Bank, as trustee (the "Twelfth
Assignment of Availability Agreement"), the Company assigned to
the Banks and Deposit Guaranty National Bank, as trustee, as
collateral security for the Company's obligations under the
Series C Reimbursement Agreement and the Series C Bonds, certain
of the Company's rights under the Availability Agreement.
J. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$47,208,334 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series A (the "Fifth Series
Bonds") issued under the Mortgage, as supplemented by a Seventh
Supplemental Indenture dated as of June 15, 1985 between the
Company and the Trustees, entered into the Fourteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
June 15, 1985 (the "Fourteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (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) Series E (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 refinance that part of the
capital costs related to the Project heretofore financed and, to
that end, (i) the Company has entered into an Underwriting
Agreement, dated as of July 29, 1996 (the "Underwriting
Agreement"), with Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., Goldman, Sachs & Co. and Lehman Brothers
Inc., providing, among other things, for the issue and sale by
the Company of $100,000,000 aggregate principal amount of First
Mortgage Bonds, 7.28% Series due 1999 (the "Eighteenth Series
Bonds"), to be issued under and secured pursuant to the Indenture
as heretofore supplemented and as further supplemented by a
Twentieth Supplemental Indenture dated as of August 1, 1996 (the
"Twentieth Supplemental Indenture").
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. 70-8511, 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
I.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 Eighteenth Series Bonds (whether at
maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), (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 Eighteenth 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 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 above being hereinafter
sometimes called the "Collateral").
I.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, the Sixteenth Series
Bonds, and the Seventeenth 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, Twenty-seventh and Twenty-ninth 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-ninth 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
Eighteenth 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 Eighteenth Series Bonds or the Trustees (or either of the
Trustees).
(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 Trustees 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.
I.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.
I.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.
I.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
II.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 Corporate
Trustee 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 (as defined in the Indenture)
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.
II.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, as amended), (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, the Twentieth Supplemental Indenture
or the Eighteenth 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 or
the Trustees (or either of them), or any holder, or
representative of any holder of the Eighteenth 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 the holders of the Eighteenth 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
Eighteenth 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 Eighteenth
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 Eighteenth 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
V.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 Eighteenth
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
Eighteenth 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 holder of all the
Eighteenth 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 or the Trustees or either of them.
V.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 the Trustees), shall be fully protected in
relying upon the aforesaid opinion.
ARTICLE VI.
Notices
VI.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 Entergy Arkansas, Inc., to:
425 West Capitol Avenue
Little Rock, Arkansas 72201
Attention: President
If to Entergy Louisiana, Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Mississippi, Inc., to:
308 East Pearl Street
Jackson, Mississippi 39201
Attention: President
If to Entergy New Orleans, 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.
VI.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
VII.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.
VII.2 Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, they, it or
he may proceed, either in their, its or his own name and 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.
VII.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 (as defined in 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
Thirtieth Assignment to be duly executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
ENTERGY LOUISIANA, INC.
ENTERGY MISSISSIPPI, INC.
ENTERGY NEW ORLEANS, INC.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ William J. Regan, Jr.
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
as Corporate Trustee
By: /s/ Gerard F. Ganey
Name:
Title:
GERARD F. GANEY, as
Individual Trustee
/s/ Gerard F. Ganey
Exhibit B-2(b)
THIRTY-FIRST ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND
AGREEMENT
This Thirty-first Assignment of Availability Agreement,
Consent and Agreement (hereinafter referred to as "this
Assignment"), dated as of August 1, 1996, is made by and between
System Energy Resources, Inc. (formerly Middle South Energy,
Inc.) (the "Company"), Entergy Arkansas, Inc., formerly Arkansas
Power & Light Company ("Entergy Arkansas") (successor in interest
to Arkansas Power & Light Company and Arkansas-Missouri Power
Company ("Ark-Mo")), Entergy Louisiana, Inc., formerly Louisiana
Power & Light Company ("Entergy Louisiana"), Entergy Mississippi,
Inc., formerly Mississippi Power & Light Company ("Entergy
Mississippi") and Entergy New Orleans, formerly New Orleans
Public Service Inc. ("Entergy New Orleans") (hereinafter Entergy
Arkansas, Entergy Louisiana, Entergy Mississippi and Entergy New
Orleans are called individually a "System Operating Company" and
collectively, the "System Operating Companies"), United States
Trust Company of New York, as trustee (hereinafter called the
"Corporate Trustee"), and Gerard F. Ganey (successor to Malcolm
J. Hood), as trustee (hereinafter called the "Individual
Trustee") (the Corporate Trustee and the Individual Trustee being
hereinafter called the "Trustees").
WHEREAS:
A. Entergy Corporation (successor to Middle South
Utilities, Inc.) ("Entergy") owns all of the outstanding common
stock of the Company and each of the System Operating Companies,
and the Company has a 90% undivided ownership and leasehold
interest in Unit No. 1 of the Grand Gulf Nuclear Electric Station
project ("Project") (more fully described in the "Indenture"
hereinafter referred to).
B. Prior hereto, (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the "Domestic
Agent") and said banks entered into an Amended and Restated Bank
Loan Agreement dated as of June 30, 1977 (the "Amended and
Restated Agreement"), the First Amendment thereto dated as of
March 20, 1980 (the "First Bank Loan Amendment"), the Second
Amended and Restated Bank Loan Agreement dated as of June 15,
1981 as amended by the First Amendment dated as of February 5,
1982 (as so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment) dated as of
June 30, 1977, between the Company, the System Operating
Companies, Ark-Mo and the Domestic Agent (the "First Assignment
of Availability Agreement"), the Company assigned to the Domestic
Agent (for the benefit of such banks), as collateral security for
the above loans, certain of the Company's rights under an
Availability Agreement dated as of June 21, 1974, as amended by
the First Amendment thereto dated as of June 30, 1977 (the
"Original Availability Agreement") between the Company, the
System Operating Companies and Ark-Mo; (iii) the First Bank Loan
Amendment, among other things, increased the amount of the loans
to be made by the banks party thereto to $808,000,000 and
pursuant to the Fourth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of March 20, 1980 (the "Fourth Assignment
of Availability Agreement"), the Company's same rights under the
Original Availability Agreement were further assigned as
collateral security for the loans made under the Amended and
Restated Agreement as amended by the First Bank Loan Agreement;
(iv) the Second Amended and Restated Bank Loan Agreement
provided, among other things, for (a) the making of revolving
credit loans by the banks named therein to the Company from time
to time in an aggregate amount not in excess of $1,311,000,000 at
any one time outstanding, and (b) the making of a term loan by
said banks in an aggregate amount not to exceed $1,311,000,000,
and pursuant to the Fifth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 15, 1981 (the "Fifth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement; and (v) the Second Bank Loan
Second Amendment, among other things, increased the amount of the
loans to be made by the banks party thereto to $1,711,000,000 and
pursuant to the Eighth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 30, 1983 (the "Eighth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement, as amended by the Second Bank
Loan Second Amendment.
C. Prior hereto (i) the Company, the System Operating
Companies, Ark-Mo, and the Trustees, as 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, an Eighteenth Supplemental Indenture
dated as of April 1, 1993, a Nineteenth Supplemental Indenture
dated as of April 1, 1994, and a Twentieth Supplemental Indenture
dated as of August 1, 1996 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; (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;
(xv) 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, 7-5/8%
Series due 1999 (the "Seventeenth Series Bonds") issued under the
Mortgage, as supplemented by a Nineteenth Supplemental Indenture
dated as of April 1, 1994 between the Company and the Trustees,
entered into a Twenty-ninth Assignment of Availability Agreement,
Consent and Agreement dated as of April 1, 1994 (the "Twenty-
ninth Assignment of Availability Agreement") (also substantially
in the form of this Agreement) to secure the Seventeenth Series
Bonds; and (xvi) the Company, the System Operating Companies and
the Trustee, as trustees for the holders of $100,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
7.28% Series due 1999 (the "Eighteenth Series Bonds") issued
under the Mortgage, as supplemented by a Twentieth Supplemental
Indenture dated as of August 1, 1996 between the Company and the
Trustees, entered into the Thirtieth Assignment of Availability
Agreement, Consent and Agreement dated as of August 1, 1996 (the
"Thirtieth Assignment of Availability Agreement") (also
substantially in the form of this Agreement) to secure the
Eighteenth Series Bonds.
D. The Original Availability Agreement has been
amended by the First Amendment thereto dated as of June 30, 1977,
the Second Amendment thereto dated June 15, 1981, the Third
Amendment thereto dated June 28, 1984 and the Fourth Amendment
thereto dated as of June 1, 1989 (the Original Availability
Agreement, as so amended and as it may be further amended and
supplemented, is hereinafter referred to as the "Availability
Agreement").
E. Unit No. 1 and Unit No. 2 of the Project have been
designated by the Company and the System Operating Companies as
being subject to the Availability Agreement and as being System
Energy Generating Units (as defined in the Availability
Agreement) thereunder.
F. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent"), and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Assignment of Availability Agreement, Consent and
Agreement (substantially in the form of this Assignment) dated as
of February 5, 1982 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Sixth Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of said banks), as collateral security for
the above loans, certain of the Company's rights under the
Availability Agreement. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of February 18, 1983
between the Company, the System Operating Companies and the
Eurodollar Agent (the "Seventh Assignment of Availability
Agreement"), the Company assigned to the Eurodollar Agent (for
the benefit of the Eurodollar Banks), as collateral security for
such loans, certain of the Company's rights under the
Availability Agreement.
G. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement"),
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1983
between the Company, the System Operating Companies, the Bank and
Deposit Guaranty National Bank, as trustee (the "Ninth Assignment
of Availability Agreement"), the Company assigned to the Bank and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series A
Reimbursement Agreement and the Series A Bonds, certain of the
Company's rights under the Availability Agreement.
H. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement"), which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of June 1, 1984 between the Company, the
System Operating Companies, the Bank and Deposit Guaranty
National Bank, as trustee (the "Tenth Assignment of Availability
Agreement"), the Company assigned to the Bank and Deposit
Guaranty National Bank, as trustee, as collateral security for
the Company's obligations under the Series B Reimbursement
Agreement and the Series B Bonds, certain of the Company's rights
under the Availability Agreement.
I. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks"), were parties to a
letter of credit and reimbursement agreement dated as of
December 1, 1984 (the "Series C Reimbursement Agreement") which
provided, among other things, for the issuance by the Banks for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series C (the "Series C Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1984 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Twelfth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1984
between the Company, the System Operating Companies, the Banks
and Deposit Guaranty National Bank, as trustee (the "Twelfth
Assignment of Availability Agreement"), the Company assigned to
the Banks and Deposit Guaranty National Bank, as trustee, as
collateral security for the Company's obligations under the
Series C Reimbursement Agreement and the Series C Bonds, certain
of the Company's rights under the Availability Agreement.
J. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$47,208,334 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series A (the "Fifth Series
Bonds") issued under the Mortgage, as supplemented by a Seventh
Supplemental Indenture dated as of June 15, 1985 between the
Company and the Trustees, entered into the Fourteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
June 15, 1985 (the "Fourteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (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) Series E (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 refinance that part of the
capital costs related to the Project heretofore financed and, to
that end, (i) the Company has entered into an Underwriting
Agreement, dated as of July 29, 1996 (the "Underwriting
Agreement"), with Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., Goldman, Sachs & Co. and Lehman Brothers
Inc., providing, among other things, for the issue and sale by
the Company of $135,000,000 aggregate principal amount of First
Mortgage Bonds, 7.71% Series due 2001 (the "Nineteenth Series
Bonds"), to be issued under and secured pursuant to the Indenture
as heretofore supplemented and as further supplemented by a
Twenty-first Supplemental Indenture dated as of August 1, 1996
(the "Twenty-first Supplemental Indenture").
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. 70-8511, 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
I.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 Nineteenth Series Bonds (whether at
maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), (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 Nineteenth 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 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 above being hereinafter
sometimes called the "Collateral").
I.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, the Sixteenth Series
Bonds, the Seventeenth Series Bonds, and the Eighteenth 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, Twenty-seventh, Twenty-ninth and Thirtieth
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 Thirtieth 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 Nineteenth 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 Nineteenth Series Bonds or
the Trustees (or either of the Trustees).
(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 Trustees 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.
I.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.
I.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.
I.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
II.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 Corporate
Trustee 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 (as defined in the Indenture)
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.
II.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, as amended), (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, the Twenty-first Supplemental
Indenture or the Nineteenth 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 or
the Trustees (or either of them), or any holder, or
representative of any holder of the Nineteenth 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 the holders of the Nineteenth 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
Nineteenth 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 Nineteenth
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 Nineteenth 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
V.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 Nineteenth
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
Nineteenth 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 holder of all the
Nineteenth 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 or the Trustees or either of them.
V.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 the Trustees), shall be fully protected in
relying upon the aforesaid opinion.
ARTICLE VI.
Notices
VI.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 Entergy Arkansas, Inc., to:
425 West Capitol Avenue
Little Rock, Arkansas 72201
Attention: President
If to Entergy Louisiana, Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Mississippi, Inc., to:
308 East Pearl Street
Jackson, Mississippi 39201
Attention: President
If to Entergy New Orleans, 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.
VI.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
VII.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.
VII.2 Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, they, it or
he may proceed, either in their, its or his own name and 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.
VII.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 (as defined in 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
Thirty-first Assignment to be duly executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
ENTERGY LOUISIANA, INC.
ENTERGY MISSISSIPPI, INC.
ENTERGY NEW ORLEANS, INC.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ William J. Regan, Jr.
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
as Corporate Trustee
By:/s/ Gerard F. Ganey
Name:
Title:
GERARD F. GANEY, as
Individual Trustee
/s/ Gerard F. Ganey
Exhibit B-3(a)
THIRTIETH SUPPLEMENTARY CAPITAL FUNDS AGREEMENT
AND ASSIGNMENT
This Thirtieth Supplementary Capital Funds Agreement
and Assignment (hereinafter referred to as "this Agreement")
dated as of August 1, 1996, is made by and between Entergy
Corporation (successor to Middle South Utilities, Inc.)
("Entergy"), System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
and Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee") (the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock of
the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit No. 1 of the Grand Gulf Nuclear
Electric Station project ("Project") (more fully described in the
"Indenture" hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers Hanover
Trust Company, as agent for certain banks (the "Domestic Agent"),
and said banks entered into an Amended and Restated Bank Loan
Agreement dated as of June 30, 1977 (the "Amended and Restated
Agreement"), the First Amendment thereto, dated as of March 20,
1980 (the "First Bank Loan Amendment"), the Second Amended and
Restated Bank Loan Agreement dated as of June 15, 1981, as
amended by the First Amendment dated as of February 5, 1982 (as
so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of June
30, 1977 between Entergy, the Company and the Domestic Agent (the
"First Supplementary Capital Funds Agreement"), the Company and
Entergy supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Domestic Agent and such banks;
(iii) the First Bank Loan Amendment, among other things,
increased the amount of the loans made by the banks party thereto
to $808,000,000 and pursuant to the Fourth Supplementary Capital
Funds Agreement and Assignment (also substantially in the form of
this Agreement) dated as of March 20, 1980 (the "Fourth
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Domestic Agent and the banks under the Amended
and Restated Agreement as amended by the First Bank Loan
Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees, as 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,
an Eighteenth Supplemental Indenture dated as of April 1, 1993,
and a Nineteenth Supplemental Indenture dated as of April 1, 1994
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;
(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; and
(xv) 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, 7-5/8% Series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1994 (the "Twenty-ninth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Seventeenth Series
Bonds.
E. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent") and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the Eurodollar
Agent (the "Sixth Supplementary Capital Funds Agreement"), the
Company and Entergy supplemented their undertakings under the
Capital Funds Agreement for the benefit of the Eurodollar Agent
and said banks. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially in the
form of this Agreement) dated as of February 18, 1983 (the
"Seventh Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Eurodollar Agent and the Eurodollar
Banks.
F. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement")
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of December 1, 1983 (the "Ninth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement") which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of June 1,
1984 (the "Tenth Supplementary Capital Funds Agreement"), Entergy
and the Company further supplemented their undertakings under the
Capital Funds Agreement for the Bank and Deposit Guaranty
National Bank as trustee under the indenture relating to the
Series B Bonds.
H. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement (also substantially in the form of this Agreement)
dated as of December 1, 1984 (the "Twelfth Supplementary Capital
Funds Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under the
indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $47,208,334 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series A (the "Fifth Series Bonds") issued under the
Mortgage, as supplemented by a Seventh Supplemental Indenture
dated as of June 15, 1985 between the Company and the Trustees,
entered into the Fourteenth Supplementary Capital Funds Agreement
and Assignment dated as of June 15, 1985 (the "Fourteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifth Series Bonds. The
Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (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) Series E (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 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.
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 refinance that part of the
capital costs related to the Project with borrowed funds, and, to
that end, (i) the Company has entered into an Underwriting
Agreement, dated as of July 29, 1996 (the "Underwriting
Agreement"), with Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., Goldman, Sachs & Co. & Lehman Brothers Inc.,
providing, among other things, for the issue and sale by the
Company of $100,000,000 aggregate principal amount of First
Mortgage Bonds, 7.28% Series due 1999 (the "Eighteenth Series
Bonds"), to be issued under and secured pursuant to the Indenture
as heretofore supplemented and as further supplemented by a
Twentieth Supplemental Indenture dated as of August 1, 1996 (the
"Twentieth Supplemental Indenture").
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. 70-8511, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Agreement and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of the execution and delivery hereof.
R. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Obligations of Entergy and the Company.
1.1. Commercial Operation of the Project. The Company
shall (and Entergy shall cause the Company to) use its best
efforts to maintain the Project in commercial operation and, in
connection therewith, take all such action, including, without
limitation, all actions before governmental authorities, as shall
be necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall
supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required from
time to time by the Company in order to maintain that portion of
the Capitalization (as defined in Section 1.6 hereof) of the
Company as shall be represented by the aggregate of the par value
of, or stated capital represented by, the outstanding shares of
all classes of capital stock and the surplus of the Company, paid
in, earned and other, if any, at an amount equal to at least 35%
of the Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy in
exchange for shares of the Company's common stock and (ii) the
capital made available to the Company at any time in question
through the incurrence by the Company of Indebtedness for
Borrowed Money (as defined in Section 1.6 hereof) as shall be
required in order for the Company to continue to own its
undivided ownership interest in the Project, to provide (without
limitation) for interest charges of the Company, to permit the
commercial operation of Unit No. 1, to permit the continuation of
such commercial operation and to pay in full all payments of the
principal of, and premium, if any, and interest on Indebtedness
for Borrowed Money, as defined in Section 1.6 hereof (whether due
at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), it being understood and agreed that,
in connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor) and
the entering into by the Company of industrial development
revenue bond financing with respect to pollution control
facilities and the issuance and sale by the Company of debt
securities, and, to the extent necessary or desirable, preferred
stock, to banks, institutions and the public may constitute some
of the means by which required capital can be made available to
the Company.
1.3. Manner of Performance. If, with respect to any
amount of capital which Entergy shall, at any time in question,
be obligated under the provisions of Section 1.2 to supply or
cause to be supplied to the Company, Entergy and the Company
shall fail to agree on the type, or terms, of any particular
security to be issued by the Company and sold to Entergy or to
others for the purpose of securing such required capital or if
requisite regulatory approvals are not obtained for any issuance
and sale so agreed upon or if such issuance and sale cannot for
any other reason be carried out, then and in such event, Entergy
shall supply such capital to the Company in the form of a cash
capital contribution.
1.4. Payments in Respect of the Eighteenth Series
Bonds. If at any time the Company shall require funds to pay
(i) 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 Eighteenth Series
Bonds (whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (ii) the expenses,
commitment fees, financing charges, trustees' fees and
administration expenses attributable to the Eighteenth Series
Bonds, and the funds of the Company available for such purpose or
purposes shall be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of, funds
under any loan agreement or similar instrument or instruments to
which the Company is now or hereafter becomes a party, Entergy
will pay to the Company in cash as a capital contribution the
funds necessary to enable the Company to pay the amounts referred
to above in this Section 1.4.
1.5. Subordination of Claims of Entergy Against the
Company. Entergy hereby agrees that (i) all amounts advanced by
Entergy to the Company (other than by way of purchases of capital
stock of the Company or capital contributions to the Company)
shall, for the purposes of this Agreement and so long as this
Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of the Company (as defined in Section
1.6 hereof) and (ii) no such Subordinated Indebtedness of the
Company shall be transferred or assigned (including by way of
security) to any person (other than to a successor of Entergy by
way of merger or consolidation or the acquisition by such person
of all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of the
Company as such on its books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of the
Company (exclusive of Short Term Debt), secured or unsecured,
then outstanding, and the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of the Company and the surplus of the
Company, paid in, earned and other, if any;
(b) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed Money
created or incurred by the Company which matures by its terms not
more than 12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the option
of the Company for a period of more than 12 months from the date
of the creation or incurrence thereof pursuant to any revolving
credit or similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to the
Obligations Secured Hereby (as defined in Section 5.1 hereof) to
the extent and in the manner set forth below:
(i) if there shall occur a Default (as defined in
the Indenture), 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 Eighteenth Series Bonds having
relied on such authorization in accepting the Eighteenth Series
Bonds as security for the Company's obligations, 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 Eighteenth Series Bonds
Outstanding (as defined in the Indenture) at the time of such
consent, the obligations of Entergy hereunder shall not be
increased by any amendment to, or modification of, the terms and
provisions of the Indenture, the Twentieth Supplemental Indenture
or the Eighteenth 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) 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 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 Eighteenth 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 Eighteenth 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), the holders of the Eighteenth
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 respective
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 Eighteenth 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
Eighteenth 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 either 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, the Sixteenth Series Bonds, and the
Seventeenth 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, Twenty-seventh and
Twenty-ninth 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-ninth 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 Eighteenth 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 Eighteenth Series
Bonds or the Trustees (or either of the Trustees).
(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 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
Eighteenth 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
Eighteenth 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
Eighteenth 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 the Trustees) 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 the Trustees) enter into and accept this Agreement upon
the terms and conditions set forth in Article XVII of the
Indenture, respectively, with the same force and effect as if
those terms and conditions were repeated at length herein and
made applicable to Trustees (or either of the Trustees)
hereunder. Nothing in this Agreement shall affect any right or
remedy of the Company or Entergy against the Trustees (or either
of the Trustees) (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 the Trustees) 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 By Trustees. 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 of 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 Trustee, 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 the Trustees) 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 (as defined in 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 the Trustees) may seem necessary or
advisable in the premises.
ARTICLE IX.
Severability
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ENTERGY CORPORATION
By: /s/ William J. Regan, Jr.
Name:
Title:
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Steven C. McNeal
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Corporate Trustee
By: /s/ Gerard F. Ganey
Name:
Title:
GERARD F. GANEY,
as Individual Trustee
/s/ Gerard F. Ganey
Exhibit B-3(b)
THIRTY-FIRST SUPPLEMENTARY CAPITAL FUNDS AGREEMENT
AND ASSIGNMENT
This Thirty-first Supplementary Capital Funds Agreement
and Assignment (hereinafter referred to as "this Agreement")
dated as of August 1, 1996, is made by and between Entergy
Corporation (successor to Middle South Utilities, Inc.)
("Entergy"), System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
and Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee") (the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock of
the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit No. 1 of the Grand Gulf Nuclear
Electric Station project ("Project") (more fully described in the
"Indenture" hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers Hanover
Trust Company, as agent for certain banks (the "Domestic Agent"),
and said banks entered into an Amended and Restated Bank Loan
Agreement dated as of June 30, 1977 (the "Amended and Restated
Agreement"), the First Amendment thereto, dated as of March 20,
1980 (the "First Bank Loan Amendment"), the Second Amended and
Restated Bank Loan Agreement dated as of June 15, 1981, as
amended by the First Amendment dated as of February 5, 1982 (as
so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of June
30, 1977 between Entergy, the Company and the Domestic Agent (the
"First Supplementary Capital Funds Agreement"), the Company and
Entergy supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Domestic Agent and such banks;
(iii) the First Bank Loan Amendment, among other things,
increased the amount of the loans made by the banks party thereto
to $808,000,000 and pursuant to the Fourth Supplementary Capital
Funds Agreement and Assignment (also substantially in the form of
this Agreement) dated as of March 20, 1980 (the "Fourth
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Domestic Agent and the banks under the Amended
and Restated Agreement as amended by the First Bank Loan
Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees, as 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,
an Eighteenth Supplemental Indenture dated as of April 1, 1993, a
Nineteenth Supplemental Indenture dated as of April 1, 1994, and
a Twentieth Supplemental Indenture dated as of August 1, 1996 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;
(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;
(xv) 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, 7-5/8% Series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1994 (the "Twenty-ninth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Seventeenth Series
Bonds; and (xvi) 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, 7.28% Series due
1999 (the "Eighteenth Series Bonds") issued under the Mortgage,
as supplemented by a Twentieth Supplemental Indenture dated as of
August 1, 1996 between the Company and the Trustees, entered into
the Thirtieth Supplementary Capital Funds Agreement and
Assignment dated as of August 1, 1996 (the "Thirtieth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Eighteenth Series
Bonds.
E. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent") and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the Eurodollar
Agent (the "Sixth Supplementary Capital Funds Agreement"), the
Company and Entergy supplemented their undertakings under the
Capital Funds Agreement for the benefit of the Eurodollar Agent
and said banks. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially in the
form of this Agreement) dated as of February 18, 1983 (the
"Seventh Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Eurodollar Agent and the Eurodollar
Banks.
F. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement")
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of December 1, 1983 (the "Ninth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement") which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of June 1,
1984 (the "Tenth Supplementary Capital Funds Agreement"), Entergy
and the Company further supplemented their undertakings under the
Capital Funds Agreement for the Bank and Deposit Guaranty
National Bank as trustee under the indenture relating to the
Series B Bonds.
H. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement (also substantially in the form of this Agreement)
dated as of December 1, 1984 (the "Twelfth Supplementary Capital
Funds Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under the
indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $47,208,334 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series A (the "Fifth Series Bonds") issued under the
Mortgage, as supplemented by a Seventh Supplemental Indenture
dated as of June 15, 1985 between the Company and the Trustees,
entered into the Fourteenth Supplementary Capital Funds Agreement
and Assignment dated as of June 15, 1985 (the "Fourteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifth Series Bonds. The
Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (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) Series E (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 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.
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 refinance that part of the
capital costs related to the Project with borrowed funds, and, to
that end, (i) the Company has entered into an Underwriting
Agreement, dated as of July 29, 1996 (the "Underwriting
Agreement"), with Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., Goldman, Sachs & Co. & Lehman Brothers Inc.,
providing, among other things, for the issue and sale by the
Company of $135,000,000 aggregate principal amount of First
Mortgage Bonds, 7.71% Series due 2001 (the "Nineteenth Series
Bonds"), to be issued under and secured pursuant to the Indenture
as heretofore supplemented and as further supplemented by a
Twenty-first Supplemental Indenture dated as of August 1, 1996
(the "Twenty-first Supplemental Indenture").
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. 70-8511, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Agreement and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of the execution and delivery hereof.
R. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Obligations of Entergy and the Company.
1.1. Commercial Operation of the Project. The Company
shall (and Entergy shall cause the Company to) use its best
efforts to maintain the Project in commercial operation and, in
connection therewith, take all such action, including, without
limitation, all actions before governmental authorities, as shall
be necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall
supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required from
time to time by the Company in order to maintain that portion of
the Capitalization (as defined in Section 1.6 hereof) of the
Company as shall be represented by the aggregate of the par value
of, or stated capital represented by, the outstanding shares of
all classes of capital stock and the surplus of the Company, paid
in, earned and other, if any, at an amount equal to at least 35%
of the Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy in
exchange for shares of the Company's common stock and (ii) the
capital made available to the Company at any time in question
through the incurrence by the Company of Indebtedness for
Borrowed Money (as defined in Section 1.6 hereof) as shall be
required in order for the Company to continue to own its
undivided ownership interest in the Project, to provide (without
limitation) for interest charges of the Company, to permit the
commercial operation of Unit No. 1, to permit the continuation of
such commercial operation and to pay in full all payments of the
principal of, and premium, if any, and interest on Indebtedness
for Borrowed Money, as defined in Section 1.6 hereof (whether due
at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), it being understood and agreed that,
in connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor) and
the entering into by the Company of industrial development
revenue bond financing with respect to pollution control
facilities and the issuance and sale by the Company of debt
securities, and, to the extent necessary or desirable, preferred
stock, to banks, institutions and the public may constitute some
of the means by which required capital can be made available to
the Company.
1.3. Manner of Performance. If, with respect to any
amount of capital which Entergy shall, at any time in question,
be obligated under the provisions of Section 1.2 to supply or
cause to be supplied to the Company, Entergy and the Company
shall fail to agree on the type, or terms, of any particular
security to be issued by the Company and sold to Entergy or to
others for the purpose of securing such required capital or if
requisite regulatory approvals are not obtained for any issuance
and sale so agreed upon or if such issuance and sale cannot for
any other reason be carried out, then and in such event, Entergy
shall supply such capital to the Company in the form of a cash
capital contribution.
1.4. Payments in Respect of the Nineteenth Series
Bonds. If at any time the Company shall require funds to pay
(i) 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 Nineteenth Series
Bonds (whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (ii) the expenses,
commitment fees, financing charges, trustees' fees and
administration expenses attributable to the Nineteenth Series
Bonds, and the funds of the Company available for such purpose or
purposes shall be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of, funds
under any loan agreement or similar instrument or instruments to
which the Company is now or hereafter becomes a party, Entergy
will pay to the Company in cash as a capital contribution the
funds necessary to enable the Company to pay the amounts referred
to above in this Section 1.4.
1.5. Subordination of Claims of Entergy Against the
Company. Entergy hereby agrees that (i) all amounts advanced by
Entergy to the Company (other than by way of purchases of capital
stock of the Company or capital contributions to the Company)
shall, for the purposes of this Agreement and so long as this
Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of the Company (as defined in Section
1.6 hereof) and (ii) no such Subordinated Indebtedness of the
Company shall be transferred or assigned (including by way of
security) to any person (other than to a successor of Entergy by
way of merger or consolidation or the acquisition by such person
of all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of the
Company as such on its books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of the
Company (exclusive of Short Term Debt), secured or unsecured,
then outstanding, and the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of the Company and the surplus of the
Company, paid in, earned and other, if any;
(b) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed Money
created or incurred by the Company which matures by its terms not
more than 12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the option
of the Company for a period of more than 12 months from the date
of the creation or incurrence thereof pursuant to any revolving
credit or similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to the
Obligations Secured Hereby (as defined in Section 5.1 hereof) to
the extent and in the manner set forth below:
(i) if there shall occur a Default (as defined in
the Indenture), 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 Nineteenth Series Bonds having
relied on such authorization in accepting the Nineteenth Series
Bonds as security for the Company's obligations, 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 Nineteenth Series Bonds
Outstanding (as defined in the Indenture) at the time of such
consent, the obligations of Entergy hereunder shall not be
increased by any amendment to, or modification of, the terms and
provisions of the Indenture, the Twenty-first Supplemental
Indenture or the Nineteenth 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) 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 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 Nineteenth 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 Nineteenth 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), the holders of the Nineteenth
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 respective
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 Nineteenth 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
Nineteenth 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 either 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, the Sixteenth Series Bonds, the
Seventeenth Series Bonds, and the Eighteenth 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, Twenty-seventh, Twenty-ninth and Thirtieth
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 Thirtieth 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 Nineteenth 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 Nineteenth Series
Bonds or the Trustees (or either of the Trustees).
(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 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
Nineteenth 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
Nineteenth 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
Nineteenth 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 the Trustees) 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 the Trustees) enter into and accept this Agreement upon
the terms and conditions set forth in Article XVII of the
Indenture, respectively, with the same force and effect as if
those terms and conditions were repeated at length herein and
made applicable to Trustees (or either of the Trustees)
hereunder. Nothing in this Agreement shall affect any right or
remedy of the Company or Entergy against the Trustees (or either
of the Trustees) (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 the Trustees) 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 By Trustees. 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 of 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 Trustee, 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 the Trustees) 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 (as defined in 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 the Trustees) may seem necessary or
advisable in the premises.
ARTICLE IX.
Severability
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ENTERGY CORPORATION
By:/s/ William J. Regan, Jr.
Name:
Title:
SYSTEM ENERGY RESOURCES, INC.
By:/s/ Steven C. McNeal
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Corporate Trustee
By: /s/ Gerard F. Ganey
Name:
Title:
GERARD F. GANEY,
as Individual Trustee
/s/ Gerard F. Ganey
Exhibit B-12(a)
$235,000,000
System Energy Resources, Inc.
$100,000,000 First Mortgage Bonds, 7.28% Series due 1999
$135,000,000 First Mortgage Bonds, 7.71% Series due 2001
UNDERWRITING AGREEMENT
July 29, 1996
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies & Gentlemen:
The undersigned, System Energy Resources, Inc., an
Arkansas corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits, shall also include any
underwriters substituted as hereinafter in Section 11 provided),
an aggregate of $100,000,000 principal amount of the Company's
First Mortgage Bonds, 7.28% Series due 1999 (the "1999 Series
Bonds") and $135,000,000 principal amount of the Company's First
Mortgage Bonds, 7.71% Series due 2001 (the "2001 Series Bonds"
and, together with the 1999 Series Bonds, the "Bonds"), as
follows:
1. SECTION Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, at a purchase price of, in
the case of the 1999 Series Bonds, 99.500%, and, in the case of
the 2001 Series Bonds, 99.375%, of the principal amount thereof,
the respective principal amounts of the Bonds set forth opposite
the name of such Underwriter in Schedule I attached hereto.
1. SECTION Description of Bonds. The Bonds shall
be issued under and pursuant to the Company's Mortgage and Deed
of Trust, dated as of June 15, 1977, with United States Trust
Company of New York, as Corporate Trustee (the "Corporate
Trustee"), and Gerard F. Ganey (successor to Malcolm J. Hood), as
Co-Trustee (the Co-Trustee and, together with the Corporate
Trustee, the "Trustees"), as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto
including the Twentieth Supplemental Indenture, dated as of
August 1, 1996, with respect to the 1999 Series Bonds (the
"Twentieth Supplemental Indenture"), and the Twenty-first
Supplemental Indenture, dated as of August 1, 1996, with respect
to the 2001 Series Bonds (the "Twenty-first Supplemental
Indenture" and, together with the Twentieth Supplemental
Indenture, the "Supplemental Indentures"). Said Mortgage and
Deed of Trust as so amended and supplemented is hereinafter
referred to as the "Mortgage". The Bonds and the Supplemental
Indentures shall have the terms and provisions described in the
Prospectus (as defined herein), provided that subsequent to the
date hereof and prior to the Closing Date (as defined herein) the
forms of the Supplemental Indentures may be amended by mutual
agreement between the Company and the Underwriters.
1. SECTION Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly
existing as a corporation in good standing under the laws of the
State of Arkansas and has the necessary corporate power and
authority to conduct the business that it is described in the
Prospectus as conducting and to own and operate the properties
owned and operated by it in such business.
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 33-47662) (the "1992 Registration
Statement") for the registration of $500,000,000 aggregate
principal amount of the Company's First Mortgage Bonds (the
"First Mortgage Bonds") under the Securities Act of 1933, as
amended (the "Securities Act"), and the 1992 Registration
Statement has become effective. The Company has also filed with
the Commission a registration statement on Form S-3 (File No. 33-
61189), as amended (the "1995 Registration Statement"), for the
registration of $265,000,000 aggregate principal amount of the
Company's Debt Securities (the "Debt Securities") under the
Securities Act, and the 1995 Registration Statement has become
effective. While $160,000,000 aggregate principal amount of First
Mortgage Bonds remained unsold under the 1992 Registration
Statement and $235,000,000 aggregate principal amount of Debt
Securities remained unsold under the 1995 Registration Statement,
the Company also filed with the Commission a registration
statement on Form S-3 (File No. 333-06717) (the "1996
Registration Statement") for the registration of $300,000,000
aggregate principal amount of First Mortgage Bonds and/or Debt
Securities under the Securities Act, and the 1996 Registration
Statement has become effective. The Company qualifies for use of
Form S-3 for the registration of the Bonds, and the Bonds are
registered under the Securities Act. The combined prospectus
forming a part of the 1996 Registration Statement, and relating,
pursuant to Rule 429 under the Securities Act, to $695,000,000
aggregate principal amount of First Mortgage Bonds and/or Debt
Securities (all of which First Mortgage Bonds and/or Debt
Securities remain unsold), including the Bonds, at the time the
1996 Registration Statement (or the most recent amendment thereto
filed prior to the time of effectiveness of this Underwriting
Agreement) became effective, including all documents incorporated
by reference therein at that time pursuant to Item 12 of Form
S-3, is hereinafter referred to as the "Basic Prospectus." In
the event that (i) the Basic Prospectus shall have been amended,
revised or supplemented (but excluding supplements to the Basic
Prospectus relating solely to First Mortgage Bonds other than the
Bonds or relating solely to Debt Securities) prior to the time of
effectiveness of this Underwriting Agreement, including without
limitation by any preliminary prospectus supplement relating to
the Bonds or (ii) the Company shall have filed documents pursuant
to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the time the 1996
Registration Statement became effective and prior to the time of
effectiveness of this Underwriting Agreement (but excluding
documents incorporated therein by reference relating solely to
First Mortgage Bonds other than the Bonds or relating solely to
Debt Securities), which are deemed to be incorporated by
reference in the Basic Prospectus pursuant to Item 12 of Form S-
3, the term "Basic Prospectus" as used herein shall also mean
such prospectus as so amended, revised or supplemented and
reflecting such incorporation by reference. The 1996
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including, for these purposes, as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Bonds by a prospectus supplement (a
"Prospectus Supplement") to be filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)"), are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively.
(i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the 1992
Registration Statement, the 1995 Registration Statement or the
Registration Statement or any supplement to the Prospectus
(except any amendment or supplement relating solely to First
Mortgage Bonds other than the Bonds or relating solely to Debt
Securities), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document that is to be incorporated by reference in, or
any supplement to, the Prospectus, in either case, without prior
notice to the Underwriters and to Winthrop, Stimson, Putnam &
Roberts ("Counsel for the Underwriters"), or any such amendment
or supplement to which said Counsel shall reasonably object on
legal grounds in writing. For purposes of this Underwriting
Agreement, any document that is filed with the Commission after
the time of effectiveness of this Underwriting Agreement and is
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to First Mortgage Bonds
other than the Bonds or relating solely to Debt Securities)
pursuant to Item 12 of Form S-3 shall be deemed a supplement to
the Prospectus.
(a) The 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement, in the
forms in which they became effective (or the latest post-
effective amendment thereto), and the Mortgage, at such times,
fully complied, and the Prospectus, when delivered to the
Underwriters for their use in making confirmations of sales of
the Bonds and at the Closing Date, as it may then be amended or
supplemented, will fully comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder or pursuant to
said rules and regulations did or will be deemed to comply
therewith. The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date filed
with the Commission pursuant to the Exchange Act, fully complied
or will fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of
the Commission thereunder or pursuant to said rules and
regulations are or will be deemed to comply therewith. On the
later of (i) the date the Registration Statement was declared
effective by the Commission under the Securities Act and (ii) the
date that the Company's most recent Annual Report on Form 10-K
was filed with the Commission under the Exchange Act (the date
described in either clause (i) or (ii) is hereinafter referred to
as the "Effective Date"), the 1992 Registration Statement, the
1995 Registration Statement and the Registration Statement did
not, and on the date that any post-effective amendment to the
1992 Registration Statement, the 1995 Registration Statement and
the Registration Statement became or becomes effective (but
excluding any post-effective amendment relating solely to First
Mortgage Bonds other than the Bonds or relating solely to Debt
Securities), the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement as amended
by any such post-effective amendment, did not or will not, as the
case may be, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the
time the Prospectus is delivered to the Underwriters for their
use in making confirmations of sales of the Bonds and at the
Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The documents incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3,
on the date filed with the Commission pursuant to the Exchange
Act, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The
foregoing representations and warranties in this paragraph (d)
shall not apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the
Company by the Underwriters or on behalf of any Underwriter
specifically for use in connection with the preparation of the
1992 Registration Statement, the 1995 Registration Statement and
the Registration Statement or the Prospectus, as they may be
amended or supplemented, or to any statements in or omissions
from the statements of eligibility of the Trustees on Form T-1
and Form T-2, as they may then be amended, under the Trust
Indenture Act filed as exhibits to the 1992 Registration
Statement, the 1995 Registration Statement and the Registration
Statement (the "Statements of Eligibility").
(a) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Mortgage or any indenture, other
mortgage, deed of trust or other agreement or instrument to which
the Company is now a party.
(a) Except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, the
Company has obtained all material licenses, permits, and other
governmental or regulatory authorizations currently required for
the conduct of its business, and is in all material respects
complying therewith, and the Company is not aware of any fact
that would lead it to believe that any material license, permit
or other governmental or regulatory authorization would not
remain in effect or be renewed in its ordinary course of
business.
1. SECTION Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the effectiveness
of this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the Bonds
will be offered to the public at the respective initial public
offering prices specified in the Prospectus Supplement.
1. SECTION Time and Place of Closing. Delivery of
the Bonds and payment of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on August 1, 1996, or at such
other time on the same or such other day as shall be agreed upon
by the Company and Morgan Stanley & Co. Incorporated, or as may
be established in accordance with Section 11 hereof. The hour
and date of such delivery and payment are herein called the
"Closing Date".
The Bonds shall be delivered to the Underwriters in
book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the Bonds
shall be in the form of one or more typewritten bonds in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York Time, on the last business day preceding the
Closing Date at such place as may be agreed upon among the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon among the Underwriters and the Company.
1. SECTION Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company
will deliver to the Underwriters a copy of the 1992 Registration
Statement, the 1995 Registration Statement and the Registration
Statement, each as originally filed with the Commission, and of
all amendments or supplements thereto relating to the Bonds, or a
conformed copy thereof, certified by an officer of the Company to
be in the form filed.
(a) The Company will deliver to the Underwriters
as many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriters may reasonably request.
(a) The Company will cause the Prospectus to be
filed with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424(b) and will advise Morgan
Stanley & Co. Incorporated promptly of the issuance of any stop
order under the Securities Act with respect to the 1992
Registration Statement, the 1995 Registration Statement or the
Registration Statement or the institution of any proceedings
therefor of which the Company shall have received notice. The
Company will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof if
issued.
(a) During such period of time after this
Underwriting Agreement has become effective as the Underwriters
are required by law to deliver a prospectus, if any event
relating to or affecting the Company, or of which the Company
shall be advised by the Underwriters in writing, shall occur that
in the Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Bonds, the Company will amend or supplement
the Prospectus by either (i) preparing and filing with the
Commission and furnishing to the Underwriters a reasonable number
of copies of a supplement or supplements or an amendment or
amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading. Unless such event relates solely to the
activities of the Underwriters (in which case the Underwriters
shall assume the expense of preparing any such amendment or
supplement), the expenses of complying with this Section 6(d)
shall be borne by the Company until the expiration of nine months
from the time of effectiveness of this Underwriting Agreement,
and such expenses shall be borne by the Underwriters thereafter.
(a) The Company will make generally available to
its security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of at
least twelve months beginning after the "effective date of the
registration statement" within the meaning of Rule 158 under the
Securities Act, which earning statement shall be in such form,
and be made generally available to security holders in such a
manner so as to meet the requirements of the last paragraph of
Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
(a) At any time within six months of the date
hereof, the Company will furnish such proper information as may
be lawfully required, and will otherwise cooperate in qualifying
the Bonds for offer and sale, under the blue sky laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(a) The Company will, except as herein provided,
pay all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the 1992
Registration Statement, the 1995 Registration Statement and the
Registration Statement, (ii) the printing, issuance and delivery
of the Bonds and the preparation, execution, printing and
recordation of the Supplemental Indentures, (iii) legal counsel
relating to the qualification of the Bonds under the blue sky
laws of various jurisdictions and the determination of the
eligibility of the Bonds for investment under the laws of various
jurisdictions, in an amount not to exceed $4,500, (iv) the
printing and delivery to the Underwriters of reasonable
quantities of copies of the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement, the
preliminary (and any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Bonds and the
Prospectus and any amendment or supplement thereto, except as
otherwise provided in paragraph (d) of this Section 6, (v) the
rating of the Bonds by one or more nationally recognized
statistical rating agencies and (vi) filings or other notices (if
any) with or to, as the case may be, the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering. Except as provided above,
the Company shall not be required to pay any expenses of the
Underwriters, except that, if this Underwriting Agreement shall
be terminated in accordance with the provisions of Section 7, 8
or 12 hereof, the Company will reimburse the Underwriters for
(i) the reasonable fees and expenses of Counsel for the
Underwriters, whose fees and expenses the Underwriters agree to
pay in any other event, and (ii) reasonable out-of-pocket
expenses, in an amount not exceeding in the aggregate $15,000,
incurred in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated
profits.
(a) The Company will not sell any additional
First Mortgage Bonds without the consent of the Underwriters
until the earlier to occur of (i) the Closing Date or (ii) the
date of the termination of the fixed price offering restrictions
applicable to the Underwriters. The Underwriters agree to notify
the Company of such termination if it occurs prior to the Closing
Date.
1. SECTION Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and on
the Closing Date of the representations and warranties made
herein on the part of the Company and of any certificates
furnished by the Company on the Closing Date and to the following
conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Company and the
Underwriters.
(a) No stop order suspending the effectiveness of
the 1992 Registration Statement, the 1995 Registration Statement
or the Registration Statement shall be in effect at or prior to
the Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Company or the
Underwriters, threatened by, the Commission on the Closing Date;
and the Underwriters shall have received a certificate, dated the
Closing Date and signed by the President, a Vice President, the
Treasurer or an Assistant Treasurer of the Company, to the effect
that no such stop order has been or is in effect and that no
proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(a) At the Closing Date, there shall have been
issued, and there shall be in full force and effect, to the
extent legally required for the issuance and sale of the Bonds,
orders of the Commission under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), authorizing the
issuance and sale of the Bonds on the terms set forth in, or
contemplated by, this Underwriting Agreement, the Supplemental
Indentures and the Prospectus.
(a) At the Closing Date, the Underwriters shall
have received from Wise Carter Child & Caraway, Professional
Association, Reid & Priest LLP, Friday, Eldredge & Clark, and
counsel for Entergy Arkansas, Inc. ("Entergy Arkansas"), Entergy
Louisiana, Inc. ("Entergy Louisiana"), Entergy Mississippi, Inc.
("Entergy Mississippi") and Entergy New Orleans, Inc. ("Entergy
New Orleans"), respectively, opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A, B, C and D
hereto, respectively, (i) with such changes therein as may be
agreed upon by the Company and the Underwriters with the approval
of Counsel for the Underwriters, and (ii) if the Prospectus shall
be supplemented after being furnished to the Underwriters for use
in offering the Bonds, with changes therein to reflect such
supplementation.
(a) At the Closing Date, the Underwriters shall
have received from Counsel for the Underwriters an opinion, dated
the Closing Date, substantially in the form set forth in Exhibit
E hereto, with such changes therein as may be necessary to
reflect any supplementation of the Prospectus prior to the
Closing Date.
(a) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P., the Company's independent certified
public accountants (the "Accountants"), a letter dated the date
hereof and addressed to the Underwriters to the effect that (i)
they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 1995, to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter, and accordingly that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations thereunder; (B) any
material modifications should be made to said unaudited financial
statements for them to be in conformity with generally accepted
accounting principles; and (C) at a specified date not more than
five days prior to the date of the letter, there was any change
in the capital stock or long-term debt of the Company, or
decrease in its net assets, in each case as compared with amounts
shown in the most recent balance sheet incorporated by reference
in the Prospectus, except in all instances for changes or
decreases which the Prospectus discloses have occurred or may
occur, for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of premium or
discount on long-term debt, or for changes or decreases as set
forth in such letter, identifying the same and specifying the
amount thereof; and (iv) stating that they have compared specific
dollar amounts, percentages of revenues and earnings and other
financial information pertaining to the Company (x) set forth in
the Prospectus and (y) set forth in documents filed by the
Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
as specified in Exhibit F hereto, in each case, to the extent
that such amounts, numbers, percentages and information may be
derived from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
(a) At the Closing Date, the Underwriters shall
have received (i) a certificate, dated the Closing Date and
signed by the President, a Vice President, the Treasurer or an
Assistant Treasurer of the Company, to the effect that (A) the
representations and warranties of the Company contained herein
are true and correct, (B) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (C) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented and (ii) a certificate, dated the Closing Date and
signed by the President, a Vice President, the Treasurer or an
Assistant Treasurer of Entergy Corporation ("Entergy") to the
effect that (A) except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, Entergy,
Entergy Arkansas, Entergy Louisiana, Entergy Mississippi and
Entergy New Orleans have obtained all material licenses, permits,
approvals and other governmental or regulatory authorizations
required to enable them to fulfill their obligations to the
Company under the terms of, with respect to Entergy, the Capital
Funds Agreement, dated as of June 21, 1974, as amended, and the
Thirtieth and Thirty-first Supplementary Capital Funds Agreements
and Assignments, each dated as of August 1, 1996 (collectively,
the "Supplementary Capital Funds Agreements"), among the Company,
the Trustees and Entergy, and, with respect to Entergy Arkansas,
Entergy Louisiana, Entergy Mississippi and Entergy New Orleans,
the Availability Agreement, dated as of June 21, 1974, as
amended, and the Thirtieth and Thirty- first Assignments of
Availability Agreement, Consents and Agreements, each dated as of
August 1, 1996 (collectively, the "Assignments of Availability
Agreement"), among the Company, the Trustees, Entergy Arkansas,
Entergy Louisiana, Entergy Mississippi and Entergy New Orleans,
each as described in the Prospectus and (B) since the most recent
date as of which information is given in the Prospectus, there
has not been any material adverse change in the business,
property or financial condition of Entergy and its subsidiaries
considered as a whole.
(a) At the Closing Date, the Underwriters shall
have received duly executed counterparts of (i) the Assignments
of Availability Agreement, (ii) the Supplementary Capital Funds
Agreements and (iii) the Supplemental Indentures.
(a) At the Closing Date, the Underwriters shall
have received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior to
the Closing Date, the statements contained in the letter
delivered pursuant to Section 7(f) hereof.
(a) Between the date hereof and the Closing Date,
no Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under the
Mortgage shall have occurred.
(a) Between the date hereof and the Closing Date,
no event shall have occurred with respect to or otherwise
affecting the Company, or Entergy and its various direct and
indirect subsidiaries taken as a whole as it affects the Company,
which in the reasonable opinion of the Underwriters materially
impairs the investment quality of the Bonds.
(a) On or prior to the Closing Date, the
Underwriters shall have received from the Company evidence
reasonably satisfactory to Morgan Stanley & Co. Incorporated that
the Bonds have received ratings of Baa3 or better from Moody's
Investors Service, Inc. and BBB- or better from Standard &
Poor's.
(a) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard & Poor's
shall have lowered its rating of the Company's outstanding First
Mortgage Bonds in any respect.
(a) All legal matters in connection with the
issuance and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(a) The Company will furnish the Underwriters
with such additional conformed copies of such opinions,
certificates, letters and documents as may be reasonably
requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
1. SECTION Conditions of Company's Obligations.
The obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of
the 1992 Registration Statement, the 1995 Registration Statement
or the Registration Statement shall be in effect at or prior to
the Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) There shall have been issued and, at the
Closing Date, there shall be in full force and effect orders of
the Commission under the 1935 Act authorizing the issuance and
sale of the Bonds on the terms set forth in, or contemplated by,
this Underwriting Agreement, the Supplemental Indentures and the
Prospectus.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to Morgan
Stanley & Co. Incorporated. Any such termination shall be
without liability of any party to the other party, except as
otherwise provided in paragraph (g) of Section 6 and in Section
10.
1. SECTION Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the 1992
Registration Statement, the 1995 Registration Statement or the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of the 1992 Registration Statement, the 1995
Registration Statement, the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) or the Prospectus or any amendment or supplement to
any thereof or arising out of, or based upon, statements in or
omissions from the Statements of Eligibility; and provided
further, that the indemnity agreement contained in this
subsection shall not inure to the benefit of any Underwriter or
to the benefit of any person controlling any Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Bonds to any
person in respect of the Basic Prospectus or the Prospectus, as
supplemented or amended, furnished by any Underwriter to a person
to whom any of the Bonds were sold (excluding in both cases,
however, any document then incorporated or deemed incorporated by
reference therein), insofar as such indemnity relates to any
untrue or misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied prior to
the consummation of such sale in the Prospectus, or any amendment
or supplement thereto, furnished on a timely basis by the Company
to the Underwriters pursuant to Section 6(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating to any
First Mortgage Bonds other than the Bonds or to Debt Securities
and any document then incorporated or deemed incorporated by
reference in the Prospectus or such amendment or supplement) is
furnished by such Underwriter to such person (i) with or prior to
the written confirmation of the sale involved or (ii) as soon as
available after such written confirmation (if it is made
available to the Underwriters prior to settlement of such sale).
(a) Each Underwriter shall indemnify, defend and
hold harmless the Company, its directors and officers and each
person who controls the foregoing within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the 1992 Registration Statement, the
1995 Registration Statement or the Registration Statement, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements, in the light of the circumstances under which they
were made, not misleading, in each case, if, but only if, such
statement or omission was made in reliance upon and in conformity
with information furnished herein or in writing to the Company by
any Underwriter specifically for use in connection with the
preparation of the 1992 Registration Statement, the 1995
Registration Statement, the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424(b)) or the Prospectus,
or any amendment or supplement thereto.
(a) In case any action shall be brought, based
upon the 1992 Registration Statement, the 1995 Registration
Statement, the Registration Statement, the Basic Prospectus or
the Prospectus (including amendments or supplements thereto),
against any party in respect of which indemnity may be sought
pursuant to any of the preceding paragraphs, such party
(hereinafter called the indemnified party) shall promptly notify
the party or parties against whom indemnity shall be sought
hereunder (hereinafter called the indemnifying party) in writing,
and the indemnifying party shall have the right to participate at
its own expense in the defense or, if it so elects, to assume (in
conjunction with any other indemnifying party) the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all fees
and expenses. If the indemnifying party shall elect not to
assume the defense of any such action, the indemnifying party
shall reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by such indemnified party. Such
indemnified party shall have the right to employ separate counsel
in any such action in which the defense has been assumed by the
indemnifying party and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel has
been specifically authorized by the indemnifying party or (ii)
the named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment)).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatening action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(a) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and such
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
1. SECTION Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
1. SECTION Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Bonds that it has
agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds that such defaulting Underwriter agreed
but failed or refused to purchase is not more than one-tenth of
the aggregate principal amount of the Bonds, the other
Underwriters shall be obligated to purchase the Bonds that such
defaulting Underwriter agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Bonds
that any Underwriter has agreed to purchase pursuant to Schedule
I hereof be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such principal amount of Bonds without
written consent of such Underwriter. If any Underwriter shall
fail or refuse to purchase Bonds and the aggregate principal
amount of Bonds with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of the Bonds,
the Company shall have the right (a) to require the non-
defaulting Underwriters to purchase and pay for the respective
principal amount of Bonds that it had severally agreed to
purchase hereunder, and, in addition, the principal amount of
Bonds that the defaulting Underwriter shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of
the respective principal amount of Bonds that such non-defaulting
Underwriters have otherwise agreed to purchase hereunder, and/or
(b) to procure one or more others, members of the NASD (or, if
not members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who agree
in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall
give written notice thereof to the Underwriters within 24 hours
(excluding any Saturday, Sunday, or legal holiday) of the time
when the Company learns of the failure or refusal of any
Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as
the Company shall determine. In the event the Company shall be
entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this
Underwriting Agreement. In the absence of such election by the
Company, this Underwriting Agreement will, unless otherwise
agreed by the Company and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
1. SECTION Termination. This Underwriting
Agreement shall be subject to termination by notice given by
written notice from Morgan Stanley & Co. Incorporated to the
Company if (a) after the execution and delivery of this
Underwriting Agreement and prior to the Closing Date (i) trading
in securities generally shall have been suspended or materially
limited on the New York Stock Exchange (excluding existing
"circuit breaker" provisions in effect under the rules of said
exchange on the date hereof, except if, in the reasonable
judgment of Morgan Stanley & Co. Incorporated, it becomes
impracticable to market the Bonds) by The New York Stock
Exchange, Inc., the Commission or other governmental authority,
(ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange (excluding
existing "circuit breaker" provisions in effect under the rules
of said exchange on the date hereof, except if, in the reasonable
judgment of Morgan Stanley & Co. Incorporated, it becomes
impracticable to market the Bonds) by The New York Stock
Exchange, Inc., the Commission or other governmental authority,
(iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak
or escalation of hostilities or any calamity or crisis that, in
the judgment of Morgan Stanley & Co. Incorporated, is material
and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of
Morgan Stanley & Co. Incorporated, impracticable to market the
Bonds. This Underwriting Agreement shall also be subject to
termination, upon notice by Morgan Stanley & Co. Incorporated as
provided above, if, in the judgment of Morgan Stanley & Co.
Incorporated, the subject matter of any amendment or supplement
(prepared by the Company) to the Prospectus (except for
information relating solely to the manner of public offering of
the Bonds, to the activity of the Underwriters or to the terms of
any series of First Mortgage Bonds not included in the Bonds or
to Debt Securities) filed or issued after the effectiveness of
this Underwriting Agreement by the Company shall have materially
impaired the marketability of the Bonds. Any termination hereof,
pursuant to this Section 12, shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
1. SECTION Miscellaneous. THIS UNDERWRITING
AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND
INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. This Underwriting Agreement shall become effective when a
fully executed copy thereof is delivered to the Company and to
Morgan Stanley & Co. Incorporated. This Underwriting Agreement
may be executed in any number of separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an
original and all of which, taken together, shall constitute but
one and the same agreement. This Underwriting Agreement shall
inure to the benefit of each of the Company, the Underwriters
and, with respect to the provisions of Section 9, each director,
officer and other person referred to in Section 9, and their
respective successors. Should any part of this Underwriting
Agreement for any reason be declared invalid, such declaration
shall not affect the validity of any remaining portion, which
remaining portion shall remain in full force and effect as if
this Underwriting Agreement had been executed with the invalid
portion thereof eliminated. Nothing herein is intended or shall
be construed to give to any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of
any provision in this Underwriting Agreement. The term
"successor" as used in this Underwriting Agreement shall not
include any purchaser, as such purchaser, of any Bonds from the
Underwriters.
1. SECTION Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Morgan Stanley & Co. Incorporated at the address
set forth at the beginning of this Underwriting Agreement (to the
attention of its General Counsel) or, if to the Company, shall be
mailed or delivered to it at 1340 Echelon Parkway, Jackson,
Mississippi 39213, Attention: Treasurer, or, if to Entergy
Services, Inc., shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
System Energy Resources, Inc.
By:
Name:
Title:
Accepted as of the date first above written:
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
By: Morgan Stanley & Co. Incorporated
By:
Name:
Title:
<PAGE>
SCHEDULE I
$235,000,000
System Energy Resources, Inc.
$100,000,000 First Mortgage Bonds, 7.28% Series due 1999
$135,000,000 First Mortgage Bonds, 7.71% Series due 2001
Name Amount of 1999 Amount of 2001
Series Bonds Series Bonds
Morgan Stanley & Co. Incorporated $25,000,000 $33,750,000
Bear, Stearns & Co. Inc. 25,000,000 33,750,000
Goldman, Sachs & Co. 25,000,000 33,750,000
Lehman Brothers Inc. 25,000,000 33,750,000
____________ ____________
Total $100,000,000 $135,000,000
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
August __, 1996
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for System Energy Resources, Inc.
(the "Company") in connection with the issuance and sale to each
of you, pursuant to the Underwriting Agreement effective July 29,
1996 (the "Underwriting Agreement"), between the Company and you,
of $100,000,000 aggregate principal amount of its First Mortgage
Bonds, 7.28% Series due 1999 (the "1999 Series Bonds") and
$135,000,000 aggregate principal amount of its First Mortgage
Bonds, 7.71% Series due 2001 (the "2001 Series Bonds" and,
together with the 1999 Series Bonds, the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
June 15, 1977, with United States Trust Company of New York, as
Corporate Trustee (the "Corporate Trustee"), and Gerard F. Ganey
(successor to Malcolm J. Hood), as Co-Trustee (the "Co-Trustee"
and, together with the Corporate Trustee, the "Trustees"), as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the Twentieth
Supplemental Indenture, dated as of August 1, 1996, with respect
to the 1999 Series Bonds (the "Twentieth Supplemental
Indenture"), and the Twenty-first Supplemental Indenture, dated
as of August 1, 1996, with respect to the 2001 Series Bonds (the
"Twenty-first Supplemental Indenture" and, together with the
Twentieth Supplemental Indenture, the "Supplemental Indentures")
(the Mortgage and Deed of Trust as so amended and supplemented
being hereinafter referred to as the "Mortgage"). This opinion
is rendered to you at the request of the Company. Capitalized
terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Mortgage; (d) the 1992 Registration Statement,
the 1995 Registration Statement, the Registration Statement and
the Prospectus filed under the Securities Act; (e) the
Availability Agreement dated as of June 21, 1974, as amended (the
"Availability Agreement"), between the Company, Entergy Arkansas,
Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc. and
Entergy New Orleans, Inc.; (f) the Assignments of Availability
Agreement; (g) the Capital Funds Agreement dated as of June 21,
1974, as amended (the "Capital Funds Agreement"), between the
Company and Entergy Corporation; (h) the Supplementary Capital
Funds Agreements; (i) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Bonds by the Company and the execution and delivery by the
Company of the Supplemental Indentures, the Availability
Agreement, the Assignments of Availability Agreement, the Capital
Funds Agreement, the Supplementary Capital Funds Agreements and
the Underwriting Agreement; and (j) the proceedings before and
the orders entered by the Commission under the 1935 Act relating
to the issuance and sale of the Bonds by the Company and the
execution and delivery by the Company of the Supplemental
Indentures, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Corporate
Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly
existing as a corporation in good standing under the laws of the
State of Arkansas, has due corporate power and authority to
conduct the business that it is described as conducting in the
Prospectus and to own and operate the properties owned and
operated by it in such business and is duly qualified to conduct
such business in the States of Arkansas and Mississippi.
(1) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except (i) as the same may be limited by the laws of the State of
Mississippi, where the property covered thereby is located,
affecting the remedies for the enforcement of the security
provided for therein, which laws do not, in our opinion, make
inadequate the remedies provided by the Mortgage for the
realization of the benefits of such security, and (ii) as the
same may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(1) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds" and "Description of the Offered Bonds," respectively,
insofar as they purport to constitute summaries of the documents
referred to therein, or of the benefits purported to be afforded
by such documents (including, without limitation, the lien of the
Mortgage), constitute accurate summaries of the terms of such
documents and of such benefits in all material respects.
(1) The Bonds are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, or other similar laws
affecting the enforcement of mortgagees' and other creditors'
rights and general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security afforded by
the Mortgage.
(1) The Availability Agreement, the Assignments
of Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreements have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(1) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(1) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the Company
of the Mortgage, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement (a) will not violate any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, (b) will not violate any provisions of, or constitute
a default under, or result in the creation or imposition of any
lien, charge or encumbrance on or security interest in (except as
contemplated by the Mortgage, the Assignments of Availability
Agreement and the Supplementary Capital Funds Agreements) any of
the assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other undertaking
known to us (having made due inquiry with respect thereto) to
which the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not violate
any provision of any law or regulation applicable to the Company
or, to the best of our knowledge (having made due inquiry with
respect thereto), any provision of any order, writ, judgment or
decree of any governmental instrumentality applicable to the
Company (except that various approvals, authorizations, orders,
licenses, permits, franchises and consents of, and registrations,
declarations and filings with, governmental authorities may be
required to be obtained or made, as the case may be, (1) in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction, (2) in connection with the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station and (3) as
set forth in the exceptions to the opinion set forth in paragraph
(9) below).
(1) Except in each case as to the financial
statements and other financial or statistical data included or
incorporated by reference therein, upon which we do not pass, the
1992 Registration Statement, the 1995 Registration Statement and
the Registration Statement, when each became effective, and the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b), complied as to
form in all material respects with the applicable requirements of
the Securities Act and (except with respect to the Statements of
Eligibility, upon which we do not pass) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date they were first filed with the
Commission, complied as to form in all material respects with the
applicable provisions of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; the 1992 Registration Statement, the
1995 Registration Statement and the Registration Statement have
become, and on the date hereof are effective under the Securities
Act, and, to the best of our knowledge, no stop order suspending
the effectiveness of the 1992 Registration Statement, the 1995
Registration Statement or the Registration Statement has been
issued and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
(1) Appropriate orders have been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds and the execution, delivery and (except to the
extent indicated below) performance by the Company of the
Assignments of Availability Agreement and the Supplementary
Capital Funds Agreements; to the best of our knowledge, said
orders are in full force and effect; no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act, which has been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale by the Company of the
Bonds pursuant to the Underwriting Agreement; and no further
approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
(other than that relating to the construction, acquisition,
ownership, operation and maintenance of the Grand Gulf Nuclear
Electric Generating Station) by the Company of its obligations
with respect to the Bonds or under the Mortgage, the Availability
Agreement, the Assignments of Availability Agreement, the Capital
Funds Agreement, the Supplementary Capital Funds Agreements and
the Underwriting Agreement, except (1) appropriate orders or the
taking of other action by governmental regulatory authorities
having jurisdiction pursuant to valid statutory enactments as to
the issuance by the Company, and the acquisition by Entergy, of
any securities to be issued by the Company to Entergy pursuant to
the Capital Funds Agreement and the Supplementary Capital Funds
Agreements after the date hereof, and as to the issuance by the
Company of any securities to others other than Entergy pursuant
to the Capital Funds Agreement and the Supplementary Capital
Funds Agreements after the date hereof and (2) with respect to
the Availability Agreement and the Assignments of Availability
Agreement (other than each respective Section 2.2.(b) thereof),
in the event that the Company shall determine to sell capacity
and/or energy from any generating unit pursuant to the terms of
the Availability Agreement or the Assignments of Availability
Agreement, appropriate orders, or the taking of other action, by
governmental regulatory authorities having jurisdiction pursuant
to valid statutory enactments as to the specific terms and
provisions under which such capacity and/or energy shall be made
available.
(1) The Company has good and sufficient title to
the properties described as owned by it in and as subject to the
lien of the Mortgage (except properties released under the terms
of the Mortgage), subject only to Excepted Encumbrances, as
defined in the Mortgage, and to minor defects and encumbrances
customarily found in properties of like size and character that
do not materially impair the use of such properties by the
Company. The description of such properties set forth in the
Mortgage is adequate to constitute the Mortgage a lien thereon.
The recording of the Mortgage in the office of the Chancery Clerk
of Claiborne County, Mississippi, which recording has been duly
effected, and the filing of Uniform Commercial Code financing
statements covering the personal property and fixtures described
in the Mortgage as subject to the lien thereof in the offices of
the Secretary of State of the State of Mississippi and the
Chancery Clerk of Claiborne County, Mississippi, which filings
have been duly effected, and the filing of continuation
statements within six months prior to the expiration of each five-
year period from the date of original filing with respect to such
financing statements, are the only recordings, filings,
rerecordings and refilings required by law in order to perfect
and maintain the lien of the Mortgage on any of the property
described therein as subject thereto; as a result of the
recording and filings referred to above, the Mortgage creates as
security for the Bonds (i) a valid, first lien on all real
property and interests in real property and the improvements
thereon specifically described in the granting clauses of the
Mortgage (and not excepted from the lien of the Mortgage by the
provisions thereof or released under the terms of the Mortgage)
and (ii) a first perfected security interest in all personal
property, interests in personal property and fixtures
specifically described in the granting clauses of the Mortgage
(and not excepted from the lien of the Mortgage by the provisions
thereof or released under the terms of the Mortgage), in each
case subject to no liens, charges or encumbrances, other than
minor defects of the character aforesaid and Excepted
Encumbrances, subject, however, to liens, defects and
encumbrances, if any, existing or placed thereon at the time of
acquisition thereof by the Company; and the provisions of the
Mortgage are effective to extend the lien thereof to all
properties and interests in properties which the Company may
acquire after the date of the Mortgage, which are of the type
referred to in the Mortgage as intended to be mortgaged thereby
when acquired, and the lien of the Mortgage will extend to all
such properties and interests in properties and will constitute a
valid first lien on all such real property and interests therein
and a first perfected security interest in all such personal
property and interests therein (subject, however, to Excepted
Encumbrances, and to liens, defects and encumbrances, if any,
existing or placed thereon at the time of acquisition thereof by
the Company and except as limited by bankruptcy law) without the
execution and delivery of any supplemental indenture or other
instrument specifically extending the lien to such real property
or interests therein or the taking of any other action
specifically extending the lien of the Mortgage to such personal
property or interests therein, other than the filing of the
continuation statements within six months prior to the expiration
of each five-year period from the date of original filing with
respect to the financing statements as described above.
(2) The filing of Uniform Commercial Code
financing statements in the offices of the Secretary of State of
the State of Mississippi and the Chancery Clerk of the First
Judicial District of Hinds County, Mississippi, which has been
duly effected, and the filing of continuation statements within
six months prior to the expiration of each five-year period from
the date of original filing with respect to such financing
statements, are the only recordings, filings, rerecordings or
refilings in the State of Mississippi required by law in order to
perfect and maintain in favor of the Trustees (a) the security
interest created by the Supplementary Capital Funds Agreements in
the Company's right, title and interest in and to the Company's
rights to receive moneys described in clause (x) of Section 5.1
thereof and the Collateral described in Section 5.1 thereof or
(b) the security interest created by the Assignments of
Availability Agreement in the Company's right, title and interest
in and to the Collateral described in Section 1.1 thereof.
(1) (a) The Supplementary Capital Funds
Agreements create in favor of the Trustees a perfected security
interest in the Company's right, title and interest in and to the
Company's rights to receive the moneys described in clause (x) of
Section 5.1 thereof; the Supplementary Capital Funds Agreements
create in favor of the Trustees a perfected security interest in
the Company's right, title and interest in and to the Collateral
described in Section 5.1 thereof pari passu with the security
interest of each Additional Assignee under an Additional
Supplementary Agreement (as such terms are defined in the
Supplementary Capital Funds Agreements) in such Collateral; and
(b) the Assignments of Availability Agreement create in favor of
the Trustees a perfected security interest in the Company's
right, title and interest in and to the Collateral described in
Section 1.1 thereof pari passu with the security interest of each
Additional Assignee under an Additional Assignment (as such terms
are defined in the Assignments of Availability Agreement) in such
Collateral.
(1) No legal or governmental proceedings to
which the Company is a party, or of which its property is the
subject, that are of a character required to be disclosed in the
1992 Registration Statement, the 1995 Registration Statement, the
Registration Statement and the Prospectus and which are not
disclosed and properly described therein as required are pending
or, to our knowledge, threatened; and we do not know of any
contracts or other documents of the Company of a character
required to be filed as exhibits to the 1992 Registration
Statement, the 1995 Registration Statement or the Registration
Statement which are not so filed, or any contracts or other
documents of the Company of a character required to be disclosed
in the 1992 Registration Statement, the 1995 Registration
Statement and the Registration Statement which are not disclosed
and properly described therein as required; the descriptions in
the 1992 Registration Statement, the 1995 Registration Statement,
the Registration Statement and Prospectus of statutes, legal and
government proceedings and contracts and other documents are
accurate and fairly present the information required to be shown.
Except as disclosed in the Prospectus, there is no action, suit,
proceeding or investigation pending against or affecting the
Company or any of its assets the result of which would, in our
opinion, have a materially adverse effect on the issuance and
sale of the Bonds in accordance with the Underwriting Agreement.
In passing upon the forms of the 1992 Registration
Statement, the 1995 Registration Statement, the Registration
Statement and the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and information included or incorporated by reference in
the 1992 Registration Statement, the 1995 Registration Statement,
the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the 1992 Registration Statement, the 1995 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement. Neither
our examination of the 1992 Registration Statement, the 1995
Registration Statement, the Registration Statement and the
Prospectus nor our discussions disclosed to us any information
which gives us reason to believe that the 1992 Registration
Statement, the 1995 Registration Statement or the Registration
Statement, at the Effective Date, contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the time first filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b) and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the 1992
Registration Statement, the 1995 Registration Statement, the
Registration Statement or the Prospectus, as to the Statements of
Eligibility or as to the information contained in the Prospectus
under the caption "Book-Entry Securities."
With respect to the opinions set forth in paragraphs
(2) and (4) above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
As to matters set forth in paragraphs (10) and (11)
above and with respect to the maintaining of the security
interests created by the Supplementary Capital Funds Agreements
and the Assignments of Availability Agreement referred to in
paragraph (12) above, we have assumed that there will be no
change in the identity of the Company or in the place(s) of
business or the chief executive office of the Company.
We have examined the portions of the information
contained in the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement that are
stated therein to have been made on our authority, and we believe
such information to be correct. We are members of the
Mississippi Bar and do not hold ourselves out as experts on the
laws of any other state. We have examined the opinions of even
date herewith rendered to you by Reid & Priest LLP and Winthrop,
Stimson, Putnam & Roberts, and we concur in the conclusions
expressed therein insofar as they involve questions of
Mississippi law. As to all matters of Arkansas and New York law,
we have relied, in the case of Arkansas law, upon the opinion of
even date herewith addressed to us by Friday, Eldredge & Clark of
Little Rock, Arkansas, and, in the case of New York law, upon the
opinion of even date herewith addressed to you by Reid & Priest
LLP.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose without our prior written
consent, except that Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Mississippi law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
By:
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
August __, 1996
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
c/o Morgan Stanley & Co., Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We, together with Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi, have acted as
counsel for System Energy Resources, Inc. (the "Company") in
connection with the issuance and sale to each of you pursuant to
the Underwriting Agreement effective July 29, 1996 (the
"Underwriting Agreement"), between the Company and you, of
$100,000,000 aggregate principal amount of its First Mortgage
Bonds, 7.28% Series due 1999 (the "1999 Series Bonds") and
$135,000,000 aggregate principal amount of its First Mortgage
Bonds, 7.71% Series due 2001 (the "2001 Series Bonds" and,
together with the 1999 Series Bonds, the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
June 15, 1977, with United States Trust Company of New York, as
Corporate Trustee (the "Corporate Trustee"), and Gerard F. Ganey
(successor to Malcolm J. Hood), as Co-Trustee (the "Co-Trustee"
and, together with the Corporate Trustee, the "Trustees"), as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto including the Twentieth
Supplemental Indenture, dated as of August 1, 1996, with respect
to the 1999 Series Bonds (the "Twentieth Supplemental
Indenture"), and the Twenty-first Supplemental Indenture, dated
as of August 1, 1996, with respect to the 2001 Series Bonds (the
"Twenty-first Supplemental Indenture" and, together with the
Twentieth Supplemental Indenture, the "Supplemental Indentures")
(the Mortgage and Deed of Trust as so amended and supplemented
being hereinafter referred to as the "Mortgage"). We have also
acted as counsel to Entergy Corporation ("Entergy") in connection
with the participation by Entergy in certain transactions related
to the issuance and sale of the Bonds by the Company. This
opinion is rendered to you at the request of the Company.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and By-Laws, each as amended, and Entergy's
Certificate of Incorporation and By-Laws, each as amended;
(b) the Underwriting Agreement; (c) the Mortgage; (d) the 1992
Registration Statement, the 1995 Registration Statement, the
Registration Statement and the Prospectus filed under the
Securities Act; (e) the Availability Agreement dated as of June
21, 1974, as amended (the "Availability Agreement"), between the
Company, Entergy Arkansas, Inc., Entergy Louisiana, Inc., Entergy
Mississippi, Inc. and Entergy New Orleans, Inc.; (f) the
Assignments of Availability Agreement; (g) the Capital Funds
Agreement dated as of June 21, 1974, as amended (the "Capital
Funds Agreement"), between the Company and Entergy Corporation
("Entergy"); (h) the Supplementary Capital Funds Agreements; (i)
the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company, the
execution and delivery by the Company of the Supplemental
Indentures, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement and the execution and delivery by Entergy of the
Capital Funds Agreement and the Supplementary Capital Funds
Agreements; and (j) the proceedings before and orders entered by
the Commission under the 1935 Act relating to the issuance and
sale of the Bonds by the Company, the execution and delivery by
the Company of the Supplemental Indentures, the Availability
Agreement, the Assignments of Availability Agreement, the Capital
Funds Agreement, the Supplementary Capital Funds Agreements and
the Underwriting Agreement and the execution and delivery by
Entergy of the Capital Funds Agreement and the Supplementary
Capital Funds Agreements. We have also examined or caused to be
examined such other documents and have satisfied ourselves as to
such other matters as we have deemed necessary in order to render
this opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Corporate
Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds" and "Description of the Offered Bonds," respectively,
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(3) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security afforded by
the Mortgage.
(4) The Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreements have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) Entergy is duly organized and validly existing as
a corporation in good standing under the laws of the State of
Delaware and has due corporate power and authority to conduct its
business and to own and operate the properties owned and operated
by it in such business.
(7) The Capital Funds Agreement and the Supplementary
Capital Funds Agreements have been duly authorized, executed and
delivered by Entergy and constitute legal, valid and binding
obligations of Entergy enforceable against Entergy in accordance
with their respective terms, except as limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(8) The issuance and sale by the Company of the Bonds,
the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement and the execution, delivery and performance by Entergy
of the Capital Funds Agreement and the Supplementary Capital
Funds Agreements (a) will not violate any provision of the
Company's Amended and Restated Articles of Incorporation or By-
laws, each as amended, or Entergy's Certificate of Incorporation
or By-laws, each as amended, (b) will not violate any provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance on or security
interest in (except as contemplated by the Mortgage, the
Assignments of Availability Agreement and the Supplementary
Capital Funds Agreements) any of the assets of the Company or
Entergy pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having made
due inquiry with respect thereto) to which the Company or Entergy
is a party or which purports to be binding upon the Company or
Entergy or upon any of their respective assets, and (c) will not
violate any provision of any law or regulation applicable to the
Company or Entergy or, to the best of our knowledge (having made
due inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
applicable to the Company (except that various approvals,
authorizations, orders, licenses, permits, franchises and
consents of, and registrations, declarations and filings with,
governmental authorities may be required to be obtained or made,
as the case may be, (1) in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction, (2) in connection with the construction,
acquisition, ownership, operation and maintenance of the Grand
Gulf Nuclear Electric Generating Station and (3) as set forth in
the exceptions to the opinion set forth in paragraph (10) below).
(9) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the 1992
Registration Statement, the 1995 Registration Statement and the
Registration Statement, when each became effective, and the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b), complied as to
form in all material respects with the applicable requirements of
the Securities Act and (except with respect to the Statements of
Eligibility, upon which we do not pass) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date they were first filed with the
Commission, complied as to form in all material respects with the
applicable provisions of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; the 1992 Registration Statement, the
1995 Registration Statement and the Registration Statement have
become and on the date hereof are, effective under the Securities
Act, and, to the best of our knowledge, no stop order suspending
the effectiveness of the 1992 Registration Statement, the 1995
Registration Statement or the Registration Statement has been
issued and no proceedings for that purpose are pending or
threatened under Section 8(d) of said Securities Act.
(10) Appropriate orders have been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds, the execution, delivery and (except to the extent
indicated below) performance by the Company of the Assignments of
Availability Agreement and the Supplementary Capital Funds
Agreements and the execution, delivery and (except to the extent
indicated below) performance by Entergy of the Supplementary
Capital Funds Agreements; to the best of our knowledge, said
orders are in full force and effect; no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act, which has been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale by the Company of the
Bonds pursuant to the Underwriting Agreement; and no further
approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
(other than that relating to the construction, acquisition,
ownership, operation and maintenance of the Grand Gulf Nuclear
Electric Generating Station) by the Company of its obligations
with respect to the Bonds or under the Mortgage, the Availability
Agreement, the Assignments of Availability Agreement, the Capital
Funds Agreement, the Supplementary Capital Funds Agreements and
the Underwriting Agreement or the performance by Entergy of its
obligations under the Capital Funds Agreement and the
Supplementary Capital Funds Agreements, except (1) appropriate
orders or the taking of other action by governmental regulatory
authorities having jurisdiction pursuant to valid statutory
enactments as to the issuance by the Company, and the acquisition
by Entergy, of any securities to be issued by the Company to
Entergy pursuant to the Capital Funds Agreement and the
Supplementary Capital Funds Agreements after the date hereof, and
as to the issuance by the Company of any securities to others
other than Entergy pursuant to the Capital Funds Agreement and
the Supplementary Capital Funds Agreements after the date hereof
and (2) with respect to the Availability Agreement and the
Assignments of Availability Agreement (other than each respective
Section 2.2(b) thereof), in the event that the Company shall
determine to sell capacity and/or energy from any generating unit
pursuant to the terms of the Availability Agreement or the
Assignments of Availability Agreement, appropriate orders, or the
taking of other action, by governmental regulatory authorities
having jurisdiction pursuant to valid statutory enactments as to
the specific terms and provisions under which such capacity
and/or energy shall be made available.
In passing upon the forms of the 1992 Registration
Statement, the 1995 Registration Statement, the Registration
Statement and the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and information included or incorporated by reference in
the 1992 Registration Statement, the 1995 Registration Statement,
the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (2) above. In connection
with the 1992 Registration Statement, the 1995 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information which
gives us reason to believe that the 1992 Registration Statement,
the 1995 Registration Statement or the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) and at the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the 1992 Registration
Statement, the 1995 Registration Statement or the Registration
Statement or the Prospectus, as to the Statements of Eligibility
or as to the information contained in the Prospectus under the
caption "Book-Entry Securities."
We have examined the portions of the information
contained in the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement that are
stated therein to have been made on our authority, and we believe
such information to be correct. We are members of the New York
Bar and do not hold ourselves out as experts on the laws of any
other state. As to all matters of Arkansas and Mississippi law,
we have relied upon the below-named opinions of counsel to the
extent that such opinions state an opinion with regard to the
matters covered by this opinion. As to matters of Arkansas law
relating to the Company, we have, with your consent, relied upon
an opinion of even date herewith addressed to us of Friday,
Eldredge & Clark of Little Rock, Arkansas. As to matters of
Mississippi law related to the Company, we have, with your
consent, relied upon the opinion of even date herewith of Wise
Carter Child & Caraway, Professional Association, that has been
delivered to you pursuant to the Underwriting Agreement.
We have not examined into and are not passing upon
matters relating to incorporation of the Company, titles to
property, the lien of the Mortgage, the priority of the security
interests intended to be created by the Supplementary Capital
Funds Agreements and the Assignments of Availability Agreement,
or the filing of any document with respect to the Capital Funds
Agreement, Supplementary Capital Funds Agreements, the
Availability Agreement and the Assignments of Availability
Agreement.
With respect to the opinions set forth in paragraphs
(1) and (3) above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose without our prior written
consent, except that Wise Carter Child & Caraway, Professional
Association, may rely on this opinion as to all matters of New
York law in rendering their opinion related to the Company
required to be delivered under the Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Friday, Eldredge & Clark]
August __, 1996
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
Wise Carter Child & Caraway,
Professional Association
Heritage Building
P.O. Box 651
Jackson, Mississippi 39205
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc. (the "Company") in connection with the issuance
and sale by it, pursuant to the Underwriting Agreement, effective
July 29, 1996 (the "Underwriting Agreement") between the Company
and the underwriters named therein of $100,000,000 aggregate
principal amount of its First Mortgage Bonds, 7.28% Series due
1999 (the "1999 Series Bonds") and $135,000,000 aggregate
principal amount of its First Mortgage Bonds, 7.71% Series due
2001 (the "2001 Series Bonds" and, together with the 1999 Series
Bonds, the "Bonds"), issued pursuant to the Company's Mortgage
and Deed of Trust, dated as of June 15, 1977, with United States
Trust Company of New York, as Corporate Trustee (the "Corporate
Trustee"), and Gerard F. Ganey (successor to Malcolm J. Hood), as
Co-Trustee (the "Co-Trustee" and, together with the Corporate
Trustee, the "Trustees"), as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto
including the Twentieth Supplemental Indenture, dated as of
August 1, 1996, with respect to the 1999 Series Bonds (the
"Twentieth Supplemental Indenture"), and the Twenty-first
Supplemental Indenture, dated as of August 1, 1996, with respect
to the 2001 Series Bonds (the "Twenty-first Supplemental
Indenture" and, together with the Twentieth Supplemental
Indenture, the "Supplemental Indentures") (the Mortgage and Deed
of Trust as so amended and supplemented being hereinafter
referred to as the "Mortgage"). Capitalized terms used herein
and not otherwise defined have the meanings ascribed to such
terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and By-Laws, each as amended; (b) the
Underwriting Agreement; (c) the Mortgage; (d) the 1992
Registration Statement, the 1995 Registration Statement and the
Registration Statement and Prospectus filed under the Securities
Act; (e) the Availability Agreement dated as of June 21, 1974, as
amended (the "Availability Agreement"), between the Company,
Entergy Arkansas, Inc., Entergy Louisiana, Inc., Entergy
Mississippi, Inc. and Entergy New Orleans, Inc.; (f) the
Assignments of Availability Agreement; (g) the Capital Funds
Agreement dated as of June 21, 1974, as amended (the "Capital
Funds Agreement"), between the Company and Entergy Corporation
("Entergy"); (h) the Supplementary Capital Funds Agreements; and
(i) the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and
the execution and delivery by the Company of the Supplemental
Indentures, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Corporate
Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and is duly qualified to conduct its business in such
State.
(2) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company and
is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as the same may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(3) The Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreements have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security afforded by
the Mortgage.
(6) There is no recording or filing required under the
laws of the State of Arkansas in order to perfect and maintain in
favor of the Trustees (a) the security interest created by the
Supplementary Capital Funds Agreements in the Company's right,
title and interest in and to the Company's rights to receive
moneys described in clause (x) of Section 5.1 thereof and the
Collateral described in Section 5.1 thereof or (b) the security
interest created by the Assignments of Availability Agreement in
the Company's right, title and interest in and to the Collateral
described in Section 1.1 thereof.
(7) The issuance and sale by the Company of the Bonds
and the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement (a) will not violate any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, and (b) will not violate any provision of any law or
regulation of the State of Arkansas or any subdivision thereof
applicable to the Company or, to the best of our knowledge
(having made due inquiry with respect thereto), any provision of
any order, writ, judgment or decree of any governmental
instrumentality of the State of Arkansas or any subdivision
thereof applicable to the Company.
(8) No approval, authorization, order, license,
permit, franchise or consent of or registration, declaration or
filing with any Arkansas governmental authority is required in
connection with the issuance and sale of the Bonds or the
execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignments of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreements and the Underwriting
Agreement.
With respect to the opinions set forth in paragraphs
(2) and (5) above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
Since we have acted herein only as Arkansas counsel for
the Company, the opinions set forth herein relate only to matters
governed by the laws of the State of Arkansas. You may rely upon
this opinion in rendering your respective opinions required to be
delivered under the Underwriting Agreement, and the underwriters
to whom your respective opinions are addressed may rely upon this
opinion in connection with the Underwriting Agreement and the
transactions contemplated thereunder as though it were addressed
and delivered to such underwriters. This opinion may not be
relied upon in any other manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT D
[Letterhead of System Operating Company Counsel]
August ___, 1996
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as counsel for (the
"Company") in connection with the transactions contemplated by
the Underwriting Agreement, effective July 29, 1996 (the
"Underwriting Agreement"), between System Energy Resources, Inc.
("System Energy") and you, relating to the issuance and sale to
you of $100,000,000 aggregate principal amount of its First
Mortgage Bonds, 7.28% Series due 1999 (the "1999 Series Bonds")
and $135,000,000 aggregate principal amount of its First Mortgage
Bonds, 7.71% Series due 2001 (the "2001 Series Bonds" and,
together with the 1999 Series Bonds, the "Bonds"). This opinion
is rendered to you at the request of the Company. Capitalized
terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have reviewed: (a) the
Availability Agreement dated as of June 21, 1974, as amended (the
"Availability Agreement"), among System Energy, the Company and
[insert other system operating companies]; (b) the Assignments of
Availability Agreement; (c) the records of various corporate
proceedings relating to the Company's participation in the
Availability Agreement and the Assignments of Availability
Agreement; (d) the proceedings before and orders entered by the
Commission under the 1935 Act relating to the Company's
participation in the Availability Agreement and the Assignments
of Availability Agreement; and (e) the 1992 Registration
Statement, the 1995 Registration Statement, the Registration
Statement and Prospectus filed under the Securities Act. We have
also examined such other matters as we have deemed necessary in
order to render this opinion.
Subject to the foregoing, we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of and
has the corporate power and authority to conduct its business in
the State(s) of and to own and operate the properties owned and
operated by it in such business.
(2) The Availability Agreement and the Assignments of
Availability Agreement have been duly authorized, executed and
delivered by the Company and constitute legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(3) Appropriate orders have been entered by the
Commission under the 1935 Act authorizing the Company's
participation in the Availability Agreement and the Assignments
of Availability Agreement; to the best of our knowledge, such
orders are in full force and effect; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the execution, delivery and
performance by the Company of the Availability Agreement and the
Assignments of Availability Agreement, except (other than with
respect to Section 2.2(b) of the Assignments of Availability
Agreement) in the event that System Energy shall determine to
sell capacity and/or energy from any generating unit under the
terms of the Availability Agreement or the Assignments of
Availability Agreement, appropriate orders, or the taking of
other action, by governmental regulatory authorities having
jurisdiction pursuant to valid statutory enactments as to the
specific terms and provisions under which capacity and/or energy
shall be made available.
(4) The execution, delivery and performance by the
Company of the Availability Agreement and the Assignments of
Availability Agreement (a) will not violate any provision of the
Company's [charter name] or By-laws, each as amended, (b) will
not violate any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any of the assets of the
Company pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having made
due inquiry with respect thereto) to which the Company is a party
or which purports to be binding upon the Company or upon any of
its assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except as
set forth in the exceptions to the opinion set forth in paragraph
(3) above).
We have examined the portions of the information
contained or incorporated by reference in the 1992 Registration
Statement, the 1995 Registration Statement and the Registration
Statement which are stated therein to have been made on our
authority, and we believe such information to be correct.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose without our prior written
consent.
Very truly yours,
[SYSTEM OPERATING COMPANY COUNSEL]
<PAGE>
EXHIBIT E
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
August __, 1996
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $100,000,000 aggregate principal amount of First
Mortgage Bonds, 7.28% Series due 1999 (the "1999 Series Bonds")
and $135,000,000 aggregate principal amount of First Mortgage
Bonds, 7.71% Series due 2001 (the "2001 Series Bonds" and,
together with the 1999 Series Bonds, the "Bonds"), issued by
System Energy Resources, Inc. (the "Company") under the Company's
Mortgage and Deed of Trust, dated as of June 15, 1977, with
United States Trust Company of New York, as Corporate Trustee
(the "Corporate Trustee"), and Gerard F. Ganey (successor to
Malcolm J. Hood), as Co-Trustee (the "Co-Trustee" and, together
with the Corporate Trustee, the "Trustees"), as heretofore
amended and supplemented by all indentures amendatory thereof and
supplemental thereto, including the Twentieth Supplemental
Indenture, dated as of August 1, 1996, with respect to the 1999
Series Bonds (the "Twentieth Supplemental Indenture"), and the
Twenty-first Supplemental Indenture, dated as of August 1, 1996,
with respect to the 2001 Series Bonds (the "Twenty-first
Supplemental Indenture" and, together with the Twentieth
Supplemental Indenture, the "Supplemental Indentures") (the
Mortgage and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"), pursuant to the
Underwriting Agreement between you and the Company effective July
29, 1996 (the "Underwriting Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America and the General Corporation Law of the State of
Delaware. We have, with your consent, relied upon opinions of
even date herewith addressed to you (or upon which it is stated
that you may rely) of (i) Friday, Eldredge & Clark, (ii) Wise
Carter Child & Caraway, Professional Association, and
(iii) [System Operating Company Counsel] as to the matters
covered in such opinions relating to Arkansas, Mississippi and
Louisiana law. We have reviewed said opinions and believe that
they are satisfactory. We have also reviewed the opinion of Reid
& Priest LLP required by Section 7(d) of the Underwriting
Agreement, and we believe said opinion to be satisfactory.
We have also examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and statements in the 1992
Registration Statement, the 1995 Registration Statement and the
Registration Statement hereinafter mentioned. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals
and the conformity to the originals of the documents submitted to
us as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of the Corporate Trustee as to the authentication and
delivery thereof. We have not examined into, and are expressing
no opinion or belief as to matters relating to, incorporation of
the Company, titles to property, franchises or the lien of the
Mortgage. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law)
and is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds" and "Description of the Offered Bonds," respectively,
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(3) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law) and are entitled to the benefit
of the security purported to be afforded by the Mortgage.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) The Assignments of Availability Agreement have
been duly authorized, executed and delivered by the Company,
Entergy Arkansas, Inc., Entergy Louisiana, Inc., Entergy
Mississippi, Inc. and Entergy New Orleans, Inc.; the
Supplementary Capital Funds Agreements have been duly authorized,
executed and delivered by the Company and Entergy Corporation.
(6) Appropriate orders have been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds, and to the best of our knowledge, such orders are
in full force and effect; and no further approval, authorization,
consent or other order of any governmental body (other than under
the Securities Act, which has been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Bonds by the Company pursuant to the
Underwriting Agreement.
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the 1992
Registration Statement, the 1995 Registration Statement and the
Registration Statement, when each became effective, and the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) complied as to
form in all material respects with the applicable requirements of
the Securities Act and (except with respect to the Statements of
Eligibility, upon which we do not pass) the Trust Indenture Act,
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date they were first filed with the
Commission, complied as to form in all material respects with the
applicable provisions of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, to the best of our knowledge,
the 1992 Registration Statement, the 1995 Registration Statement
and the Registration Statement have become, and on the date
hereof are, effective under the Securities Act and no stop order
suspending the effectiveness of the 1992 Registration Statement,
the 1995 Registration Statement or the Registration Statement has
been issued and no proceedings for that purpose are pending or
threatened under Section 8 of the Securities Act.
In passing upon the form of the 1992 Registration
Statement, the 1995 Registration Statement and the Registration
Statement and the form of the Prospectus, we necessarily assume
the correctness, completeness and fairness of statements made by
the Company and the information included or incorporated by
reference in the 1992 Registration Statement, the 1995
Registration Statement and the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (2)
hereof. In the course of the preparation by the Company of the
Registration Statement and the Prospectus, we have had
discussions with certain officers, employees and representatives
of the Company and Entergy Services, Inc., with counsel for the
Company and with your representatives. Our review of the 1992
Registration Statement, the 1995 Registration Statement, the
Registration Statement and the Prospectus, and such discussions
did not disclose to us any information that gives us reason to
believe that the 1992 Registration Statement, the 1995
Registration Statement or the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424(b) and at the
date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the 1992 Registration Statement, the
1995 Registration Statement, the Registration Statement or
Prospectus, as to the Statements of Eligibility or as to the
information contained in the Prospectus under the caption "Book-
Entry Securities."
With respect to the opinions set forth in paragraphs
(1) and (3) above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT F
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
Caption Page Items
Quarterly Report on
Form 10-Q for the
quarter ended March 31,
1996
"MANAGEMENT'S FINANCIAL 4 The amount of first mortgage
DISCUSSION AND bonds issuable by the Company
ANALYSIS, LIQUIDITY AND at March 31, 1996 based upon
CAPITAL RESOURCES" the Company's most
restrictive applicable tests
and the assumed annual
interest rate stated therein.
[LETTERHEAD OF WISE CARTER CHILD & CARAWAY]
August 8, 1996
EXHIBIT F-1(b)
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration on Form U-1
(File No. 70-8511), as amended (the "Application-Declaration"),
filed with the Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of
1935, as amended, by System Energy Resources, Inc. (the
"Company") and the other companies named therein contemplating,
among other things, the issuance and sale by the Company of one
or more series of the Company's First Mortgage Bonds; (2) the
Commission's order dated May 9, 1995 ("Order"), permitting the
Application-Declaration to become effective with respect to the
issuance and sale of said First Mortgage Bonds; and (3) the
issuance and sale by the Company on August 1, 1996, of (i)
$100,000,000 in aggregate principal amount of its First Mortgage
Bonds, 7.28% Series due August 1, 1999 (the "1999 Bonds") and
(ii) $135,000,000 in aggregate principal amount of its First
Mortgage Bonds, 7.71% Series due August 1, 2001 (the "2001
Bonds") (collectively, the 1999 Bonds and the 2001 Bonds referred
to as the "Bonds"), we advise you that in our opinion:
(a) the Company is a corporation duly organized and
validly existing under the laws of the State of
Arkansas;
(b) the issuance and sale of the Bonds have been
consummated in accordance with the Application-
Declaration and the Order;
(c) all state laws that relate or are applicable to
the issuance and sale of the Bonds (other than so-
called "blue sky" or similar laws, upon which we do not
pass herein) have been complied with;
(d) the Bonds are valid and binding obligations of the
Company in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of mortgagees'
and other creditors' rights; and
(e) the consummation of the issuance and sale of the
Bonds has not violated the legal rights of the holders
of any securities issued by the Company.
In giving this opinion, we have relied, as to all matters
governed by the laws of the State of New York, upon an opinion of
even date herein of Reid & Priest LLP of New York, New York,
which is to be filed as an exhibit to the Certificate pursuant to
Rule 24.
We hereby consent to the use of this opinion as an exhibit
to the Certificate pursuant to Rule 24.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
BY: /s/Betty Toon Collins
Betty Toon Collins
BTC:sm
Exhibit F-2(b)
[Letterhead of Reid & Preist LLP]
New York, New York
August 8, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File
No. 70-8511), filed by System Energy Resources, Inc.
("Company") with the Securities and Exchange Commission
("Commission") under the Public Utility Holding Company Act
of 1935, as amended, contemplating, among other things, the
issuance and sale by the Company of one or more new series
of the Company's First Mortgage Bonds; (2) the Commission's
order dated May 9, 1995 ("Order") permitting the Application-
Declaration, as amended, to become effective with respect to
the issuance and sale of said First Mortgage Bonds; and (3)
the issuance and sale by the Company on August 1, 1996 of
(i) $100,000,000 in aggregate principal amount of its First
Mortgage Bonds, 7.28% Series due August 1, 1999 (the "1999
Bonds") and (ii) $135,000,000 in aggregate principal amount
of its First Mortgage Bonds, 7.71% Series due August 1, 2001
(the "2001 Bonds") (collectively, the 1999 Bonds and the
2001 Bonds referred to as the "Bonds"), we advise you that
in our opinion:
(a) the Company is a corporation duly
organized and validly existing under the laws of
the State of Arkansas;
(b) the issuance and sale of the Bonds have
been consummated in accordance with the
Application-Declaration, as amended, and the
Order;
(c) all state laws that relate or are
applicable to the issuance and sale of the Bonds
(other than so-called "blue sky" or similar laws,
upon which we do not pass herein) have been complied
with;
(d) the Bonds are valid and binding
obligations of the Company in accordance with their
terms, except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors'
rights; and
(e) the consummation of the issuance and sale
of the Bonds has not violated the legal rights of
the holders of any securities issued by the Company
or any associate company thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. In
giving this opinion, we have relied, as to all matters
governed by the laws of the State of Arkansas and of the State
of Mississippi, upon the opinion of Wise Carter Child &
Caraway, Professional Association, counsel for the Company,
which is to be filed as an exhibit to the Certificate pursuant
to Rule 24.
Our consent is hereby given to the use of this
opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
