UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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:
In the Matter of :
:
Entergy Corporation : CERTIFICATE
: PURSUANT TO
File No. 70-8149 : RULE 24
:
(Public Utility Holding Company Act of 1935) :
:
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This is to certify, pursuant to Rule 24 under the Public
Utility Holding Company Act of 1935, as amended, that the
transactions proposed by Entergy Corporation ("Entergy") as
described in the Declaration on Form U-1, as amended, in the
above referenced File, have been carried out in accordance with
the terms and conditions of, and for the purposes represented by,
the Declaration and pursuant to the order of the Securities and
Exchange Commission dated July 27, 1995 with respect thereto
(Release No. 35-26343).
Attached hereto and incorporated by reference are:
Exhibit B Conformed copy of Credit
Agreement, dated as of October 10, 1995,
among Entergy, the Banks named therein and
Citibank, N.A., as Agent.
Exhibit F Opinion of Reid & Priest LLP.
IN WITNESS WHEREOF, Entergy has caused this certificate to
be executed this 20th day of October, 1995.
ENTERGY CORPORATION
By /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and
Treasurer
EXECUTION COPY
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U.S. $300,000,000
CREDIT AGREEMENT
Dated as of October 10, 1995
Among
ENTERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
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CREDIT AGREEMENT
Dated as of October 10, 1995
ENTERGY CORPORATION, a Delaware corporation
(the Borrower ), the banks (the Banks )
listed on the signature pages hereof, and
Citibank, N.A. ( Citibank ), as agent (the
Agent ), for the Lenders hereunder, agree as
follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As
used in this Agreement, the following terms
shall have the following meanings (such
meanings to be equally applicable to both
the singular and plural forms of the terms
defined):
Adjusted CD Rate means, for any Interest
Period for each Adjusted CD Rate Advance
made as part of the same Contract Borrowing,
an interest rate per annum equal to the sum
of:
(a) the rate per annum obtained by
dividing (i) the rate of interest
determined by the Agent to be the average
(rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the
consensus bid rate determined by each of
the Reference Banks for the bid rates per
annum, at 9:00 A.M. (New York City time)
(or as soon thereafter as practicable) on
the first day of such Interest Period, of
New York certificate of deposit dealers of
recognized standing selected by such
Reference Bank for the purchase at face
value of certificates of deposit of such
Reference Bank in an amount substantially
equal to such Reference Bank's Adjusted CD
Rate Advance made as part of such Contract
Borrowing and with a maturity equal to
such Interest Period, by (ii) a percentage
equal to 100% minus the Adjusted CD Rate
Reserve Percentage for such Interest
Period, plus
(b) the Assessment Rate for such Interest
Period.
The Adjusted CD Rate for the Interest
Period for each Adjusted CD Rate Advance
made as part of the same Contract
Borrowing shall be determined by the Agent
on the basis of applicable rates furnished
to and received by the Agent from the
Reference Banks on the first day of such
Interest Period, subject, however, to the
provisions of Section 2.09.
Adjusted CD Rate Advance means a Contract
Advance that bears interest as provided in
Section 2.07(b).
Adjusted CD Rate Reserve Percentage for
the Interest Period for each Adjusted CD
Rate Advance made as part of the same
Contract Borrowing means the reserve
percentage applicable on the first day of
such Interest Period under regulations
issued from time to time by the Board of
Governors of the Federal Reserve System
(or any successor) for determining the
maximum reserve requirement (including,
but not limited to, any emergency,
supplemental or other marginal reserve
requirement) for a member bank of the
Federal Reserve System in New York City
with deposits exceeding one billion
dollars with respect to liabilities
consisting of or including (among other
liabilities) U.S. dollar nonpersonal time
deposits in the United States with a
maturity equal to such Interest Period.
Advance means a Contract Advance or an
Auction Advance.
Affiliate means, as to any Person, any
other Person that, directly or indirectly,
controls, is controlled by or is under
common control with such Person or is a
director or officer of such Person.
AP&L means Arkansas Power & Light
Company, an Arkansas corporation.
Applicable Lending Office means, with
respect to each Lender, such Lender's
Domestic Lending Office in the case of a
Base Rate Advance, such Lender's CD
Lending Office in the case of an Adjusted
CD Rate Advance, and such Lender's
Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case
of an Auction Advance, the office of such
Lender notified by such Lender to the
Agent as its Applicable Lending Office
with respect to such Auction Advance.
Applicable Margin means, on any date, for
any Adjusted CD Rate Advance or Eurodollar
Rate Advance, the interest rate per annum
set forth below, determined by reference
to the combined Senior Debt Ratings from
time to time of the two Significant
Subsidiaries (other than SERI) having the
highest Senior Debt Ratings.
Significant Subsidiary with
highest Senior Debt Rating
Senior
Debt Ratings
A- and A3
or above
BBB+ and
Baa1 or
BBB and Baa2
or split rated
above
BBB- and Baa3
or
split rated
above
BB+ and/or
Ba1 or below
or unrated
A- and A3
or above
E--0.35%
CD--0.475%
E--0.40%
CD--0.525%
E--0.48%
CD--0.605%
E--0.75%
CD--0.875%
Significant
Subsidiary
with next
highest Senior Debt
Rating
BBB+ and
Baa1 or
BBB and Baa2
or
split rated above
E--0.40%
CD--0.525%
E--0.45%
CD--0.575%
E--0.50%
CD--0.655%
E--0.80%
CD--0.925%
BBB- and Baa3
or
split rated above
E--0.48%
CD--0.605%
E--0.50%
CD--0.655%
E--0.55%
CD--0.675%
E--0.875%
CD--1.00%
BB+ and/or Ba1
or below or unrated
E--0.75%
CD--0.875%
E--0.80%
CD--0.925%
E--0.875%
CD--1.00%
E--0.875%
CD--1.00%
E = Eurodollar Rate Advance Margin
CD = Adjusted CD Rate Advance Margin
Any change in the Applicable Margin will be
effective as of the date on which S&P or
Moody's, as the case may be, announces the
applicable change in any Senior Debt Rating.
Assessment Rate for the Interest Period for
each Adjusted CD Rate Advance made as part
of the same Contract Borrowing means the
annual assessment rate estimated by the
Agent on the first day of such Interest
Period for determining the then current
annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or
any successor) for insuring U.S. dollar
deposits of Citibank in the United States.
Assignment and Acceptance means an
assignment and acceptance entered into by a
Lender and an assignee of that Lender, and
accepted by the Agent, in substantially the
form of Exhibit C hereto.
Auction Advance means an advance by a
Lender to the Borrower as part of an Auction
Borrowing resulting from the auction bidding
procedure described in Section 2.03.
Auction Borrowing means a borrowing
consisting of simultaneous Auction Advances
from each of the Lenders whose offer to make
one or more Auction Advances as part of such
borrowing has been accepted by the Borrower
under the auction bidding procedure
described in Section 2.03.
Auction Note means a promissory note of the
Borrower payable to the order of any Lender,
in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from an
Auction Advance made by such Lender.
Auction Reduction has the meaning specified
in Section 2.01.
Base Rate means, for any period, a
fluctuating interest rate per annum at all
times equal to the higher of:
(a) the rate of interest announced
publicly by Citibank in New York, New
York, from time to time, as Citibank's
base rate; and
(b) 1/2 of 1% per annum above the Federal
Funds Rate in effect from time to time.
Base Rate Advance means a Contract Advance
which bears interest as provided in Section
2.07(a).
Borrowing means a Contract Borrowing or an
Auction Borrowing.
Business Day means a day of the year on
which banks are not required or authorized
to close in New York City and, if the
applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings
are carried on in the London interbank
market.
CD Lending Office means, with respect to
any Lender, the office of such Lender
specified as its CD Lending Office
opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such
office is specified, its Domestic Lending
Office), or such other office of such Lender
as such Lender may from time to time specify
to the Borrower and the Agent.
Commitment has the meaning specified in
Section 2.01.
Consolidated Net Worth means the sum of the
capital stock (excluding treasury stock and
capital stock subscribed for and unissued)
and surplus (including earned surplus,
capital surplus and the balance of the
current profit and loss account not
transferred to surplus) accounts of the
Borrower and its subsidiaries appearing on a
consolidated balance sheet of the Borrower
and its subsidiaries prepared as of the date
of determination in accordance with
generally accepted accounting principles
consistent with those applied in the
preparation of the financial statements
referred to in Section 4.01(e), after
eliminating all intercompany transactions
and all amounts properly attributable to
minority interests, if any, in the stock and
surplus of subsidiaries.
Contract Advance means an advance by a
Lender to the Borrower as part of a Contract
Borrowing and refers to an Adjusted CD Rate
Advance, a Base Rate Advance or a Eurodollar
Rate Advance, each of which shall be a Type
of Contract Advance.
Contract Borrowing means a borrowing
consisting of simultaneous Contract Advances
of the same Type made by each of the Lenders
pursuant to Section 2.01 or Converted
pursuant to Section 2.09 or 2.10.
Contract Note means a promissory note of
the Borrower payable to the order of any
Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender
resulting from the Contract Advances made by
such Lender.
Convert , Conversion and Converted each
refers to a conversion of Contract Advances
of one Type into Contract Advances of
another Type or the selection of a new, or
the renewal of the same, Interest Period for
Eurodollar Rate Advances or CD Rate
Advances, as the case may be, pursuant to
Section 2.09 or 2.10.
Debt of any Person means (without
duplication) all liabilities, obligations
and indebtedness (whether contingent or
otherwise) of such Person (i) for borrowed
money or evidenced by bonds, indentures,
notes, or other similar instruments, (ii) to
pay the deferred purchase price of property
or services (other than such obligations
incurred in the ordinary course of business
on customary trade terms, provided that such
obligations are not more than 30 days past
due), (iii) as lessee under leases which
shall have been or should be, in accordance
with generally accepted accounting
principles, recorded as capital leases, (iv)
under reimbursement agreements or similar
agreements with respect to the issuance of
letters of credit (other than obligations in
respect of letters of credit opened to
provide for the payment of goods or services
purchased in the ordinary course of
business), (v) under any Guaranty
Obligations and (vi) liabilities in respect
of unfunded vested benefits under plans
covered by Title IV of ERISA.
Domestic Lending Office means, with respect
to any Lender, the office of such Lender
specified as its Domestic Lending Office
opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to
which it became a Lender, or such other
office of such Lender as such Lender may
from time to time specify to the Borrower
and the Agent.
Eligible Assignee means a Person (a) (i)
that is (A) a commercial bank organized
under the laws of the United States, or any
State thereof, and having total assets in
excess of $500,000,000; (B) a commercial
bank organized under the laws of any other
country which is a member of the OECD, or a
political subdivision of any such country,
and having total assets in excess of
$500,000,000, provided that such bank is
acting through a branch or agency located in
the United States or another country which
is also a member of OECD; or c a Lender or a
commercial bank Affiliate of any Lender
immediately prior to an assignment and (ii)
whose long-term public senior debt
securities are rated at least BBB- by
Standard & Poor's Corporation or at least
Baa3 by Moody's Investors Service, Inc.; or
(b) that is approved by the Borrower (whose
approval shall not be unreasonably
withheld), the Agent and the Majority
Lenders.
Environmental Laws means any federal, state
or local laws, ordinances or codes, rules,
orders, or regulations relating to pollution
or protection of the environment, including,
without limitation, laws relating to
hazardous substances, laws relating to
reclamation of land and waterways and laws
relating to emissions, discharges, releases
or threatened releases of pollutants,
contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into
the environment (including, without
limitation, ambient air, surface water,
ground water, land surface or subsurface
strata) or otherwise relating to the
manufacture, processing, distribution, use,
treatment, storage, disposal, transport or
handling of pollution, contaminants,
chemicals, or industrial, toxic or hazardous
substances or wastes.
ERISA means the Employee Retirement Income
Security Act of 1974, as amended from time
to time, and the regulations promulgated and
rulings issued thereunder, each as amended
and modified from time to time.
ERISA Affiliate of a person or entity means
any trade or business (whether or not
incorporated) that is a member of a group of
which such person or entity is a member and
that is under common control with such
person or entity within the meaning of
Section 414 of the Internal Revenue Code of
1986, and the regulations promulgated and
rulings issued thereunder, each as amended
or modified from time to time.
ERISA Plan means an employee benefit plan
maintained for employees of any Person or
any ERISA Affiliate of such Person subject
to Title IV of ERISA.
ERISA Termination Event means (i) a
Reportable Event described in Section 4043
of ERISA and the regulations issued
thereunder (other than a Reportable Event
not subject to the provision for 30-day
notice to PBGC), or (1) the withdrawal of
the Borrower or any of its ERISA Affiliates
from an ERISA Plan during a plan year in
which the Borrower or any of its ERISA
Affiliates was a substantial employer as
defined in Section 4001(a)(2) of ERISA, or
(2) the filing of a notice of intent to
terminate an ERISA Plan or the treatment of
an ERISA Plan amendment as a termination
under Section 4041 of ERISA, or (3) the
institution of proceedings to terminate an
ERISA Plan by the PBGC or to appoint a
trustee to administer any ERISA Plan, or (4)
any other event or condition that would
constitute grounds under Section 4042 of
ERISA for the termination of, or the
appointment of a trustee to administer any
ERISA Plan.
Eurocurrency Liabilities has the meaning
assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve
System, as in effect from time to time.
Eurodollar Lending Office means, with
respect to any Lender, the office of such
Lender specified as its Eurodollar Lending
Office opposite its name on Schedule I
hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if
no such office is specified, its Domestic
Lending Office), or such other office of
such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
Eurodollar Rate means, for the Interest
Period for each Eurodollar Rate Advance made
as part of the same Contract Borrowing, an
interest rate per annum equal to the average
(rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars
are offered by the principal office of each
of the Reference Banks in London, England,
to prime banks in the London interbank
market at 11:00 A.M. (London time) two
Business Days before the first day of such
Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar
Rate Advance made as part of such Contract
Borrowing and for a period equal to such
Interest Period. The Eurodollar Rate for
the Interest Period for each Eurodollar Rate
Advance made as part of the same Contract
Borrowing shall be determined by the Agent
on the basis of applicable rates furnished
to and received by the Agent from the
Reference Banks two Business Days before the
first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
Eurodollar Rate Advance means a Contract
Advance that bears interest as provided in
Section 2.07c.
Eurodollar Rate Reserve Percentage of any
Lender for the Interest Period for any
Eurodollar Rate Advance means the reserve
percentage applicable during such Interest
Period (or if more than one such percentage
shall be so applicable, the daily average of
such percentages for those days in such
Interest Period during which any such
percentage shall be so applicable) under
regulations issued from time to time by the
Board of Governors of the Federal Reserve
System (or any successor) for determining
the maximum reserve requirement (including,
without limitation, any emergency,
supplemental or other marginal reserve
requirement) for such Lender with respect to
liabilities or assets consisting of or
including Eurocurrency Liabilities having a
term equal to such Interest Period.
Events of Default has the meaning specified
in Section 6.01.
Federal Funds Rate means, for any period, a
fluctuating interest rate per annum equal
for each day during such period to the
weighted average of the rates on overnight
Federal funds transactions with members of
the Federal Reserve System arranged by
Federal funds brokers, as published for such
day (or, if such day is not a Business Day,
for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if
such rate is not so published for any day
which is a Business Day, the average of the
quotations for such day on such transactions
received by the Agent from three Federal
funds brokers of recognized standing
selected by it.
Fee Letter means that certain letter
agreement, dated October 10, 1995, between
the Borrower and the Agent.
GSU means Gulf States Utilities Company, a
Texas corporation.
Guaranty Obligations means (i) direct or
indirect guaranties in respect of, and
obligations to purchase or otherwise
acquire, or otherwise to assure a creditor
against loss in respect of, Debt of any
Person and (ii) other guaranty or similar
obligations in respect of the financial
obligations of others, including, without
limitation, Support Obligations.
Interest Period means, for each Contract
Advance made as part of the same Contract
Borrowing, the period commencing on the date
of such Contract Advance or the date of the
Conversion of any Contract Advance into such
a Contract Advance and ending on the last
day of the period selected by the Borrower
pursuant to the provisions below and,
thereafter, each subsequent period
commencing on the last day of the
immediately preceding Interest Period and
ending on the last day of the period
selected by the Borrower pursuant to the
provisions below. The duration of each such
Interest Period shall be 30, 60, 90 or 180
days in the case of an Adjusted CD Rate
Advance, and 1, 2, 3 or 6 months in the case
of a Eurodollar Rate Advance, in each case
as the Borrower may, upon notice received by
the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day
prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any
Interest Period that ends after the
Termination Date;
(ii) Interest Periods commencing on the
same date for Contract Advances made as
part of the same Contract Borrowing
shall be of the same duration; and
(iii) whenever the last day of any
Interest Period would otherwise occur
on a day other than a Business Day, the
last day of such Interest Period shall
be extended to occur on the next
succeeding Business Day, provided, in
the case of any Interest Period for a
Eurodollar Rate Advance, that if such
extension would cause the last day of
such Interest Period to occur in the
next following calendar month, the last
day of such Interest Period shall occur
on the next preceding Business Day.
Lenders means the Banks listed on the
signature pages hereof and each Person that
shall become a party hereto pursuant to
Section 8.07.
Lien means, with respect to any asset, any
mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in
respect of such asset. For the purposes of
this Agreement, a Person or any of its
subsidiaries shall be deemed to own, subject
to a Lien, any asset that it has acquired or
holds subject to the interest of a vendor or
lessor under any conditional sale agreement,
capital lease or other title retention
agreement relating to such asset.
LP&L means Louisiana Power & Light Company,
a Louisiana corporation.
Majority Lenders means at any time Lenders
holding at least 66-2/3% of the then
aggregate unpaid principal amount of the
Contract Notes held by Lenders, or, if no
such principal amount is then outstanding,
Lenders having at least 66-2/3% of the
Commitments (without giving effect to any
termination in whole of the Commitments
pursuant to Section 6.02), provided, that
for purposes hereof, neither the Borrower,
nor any of its Affiliates, if a Lender,
shall be included in (i) the Lenders holding
such amount of the Contract Advances or
having such amount of the Commitments or
(ii) determining the aggregate unpaid
principal amount of the Contract Advances or
the total Commitments.
Moody's means Moody's Investors Service,
Inc. or any successor thereto.
MP&L means Mississippi Power and Light
Company, a Mississippi corporation.
Multiemployer Plan means a multiemployer
plan as defined in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA
Affiliate is making or accruing an
obligation to make contributions, or has
within any of the preceding three plan years
made or accrued an obligation to make
contributions.
NOPSI means New Orleans Public Service
Inc., a Louisiana corporation.
Note means a Contract Note or an Auction
Note.
Notice of Contract Borrowing has the
meaning specified in Section 2.02(a).
Notice of Auction Borrowing has the meaning
specified in Section 2.03(a).
OECD means the Organization for Economic
Cooperation and Development.
PBGC means the Pension Benefit Guaranty
Corporation and any entity succeeding to any
or all of its functions under ERISA.
Person means an individual, partnership,
corporation (including a business trust),
joint stock company, trust, unincorporated
association, joint venture or other entity,
or a government or any political subdivision
or agency thereof.
Prepayment Event means the occurrence of
any event or the existence of any condition
under any agreement or instrument relating
to any Debt of the Borrower or of a
Significant Subsidiary that, in either case,
is outstanding in a principal amount in
excess of $50,000,000 in the aggregate,
which occurrence or event results in the
declaration of such Debt being due and
payable, or required to be prepaid (other
than by a regularly scheduled required
prepayment), prior to the stated maturity
thereof.
Reference Banks means Citibank, The Bank of
New York and Union Bank of Switzerland.
Register has the meaning specified in
Section 8.07c.
Reportable Event has the meaning assigned
to that term in Title IV of ERISA.
S&P means Standard & Poor's Rating Group or
any successor thereto.
SEC means the United States Securities and
Exchange Commission.
SEC Order has the meaning specified in
Section 3.01(a)(iii).
Senior Debt Rating means, as to any Person,
the rating assigned by Moody's or S&P to the
senior secured long-term debt of such
Person.
SERI means Systems Energy Resources, Inc.,
an Arkansas corporation.
Significant Subsidiary means LP&L, SERI,
AP&L, MP&L, GSU, and any other subsidiary of
the Borrower: (i) the total assets (after
intercompany eliminations) of which exceed
5% of the total assets of the Borrower and
its subsidiaries or (ii) the net worth of
which exceeds 5% of the Consolidated Net
Worth of the Borrower and its subsidiaries,
in each case as shown on the most recent
audited consolidated balance sheet of the
Borrower and its subsidiaries.
Support Obligations means any financial
obligation, contingent or otherwise, of any
Person guaranteeing or otherwise supporting
any Debt or other obligation of any other
Person in any manner, whether directly or
indirectly, and including, without
limitation, any obligation of such Person,
direct or indirect, (i) to purchase or pay
(or advance or supply funds for the purchase
or payment of) such Debt or to purchase (or
to advance or supply funds for the purchase
of) any security for the payment of such
Debt, (ii) to purchase property, securities
or services for the purpose of assuring the
owner of such Debt of the payment of such
Debt, (iii) to maintain working capital,
equity capital, available cash or other
financial statement condition of the primary
obligor so as to enable the primary obligor
to pay such Debt, (iv) to provide equity
capital under or in respect of equity
subscription arrangements so as to assure
any Person with respect to the payment of
such Debt or the performance of such
obligation, or (v) to provide financial
support for the performance of, or to
arrange for the performance of, any non-
monetary obligations or non-funded debt
payment obligations (including, without
limitation, guaranties of payments under
power purchase or other similar
arrangements) of the primary obligor.
Termination Date means October 10, 1998, or
such later date that may be established from
time to time pursuant to Section 2.17
hereof, or, in either case, the earlier date
of termination in whole of the Commitments
pursuant to Section 2.05 or Section 6.02
hereof.
Yield means, for any Auction Advance, the
effective rate per annum at which interest
on such Auction Advance is payable, computed
on the basis of a year of 360 days for the
actual number of days (including the first
day but excluding the last day) occurring in
the period for which such interest is
payable.
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of
periods of time from a specified date to a
later specified date, the word from means
from and including and the words to and
until each means to but excluding .
SECTION 1.03. Accounting Terms. All
accounting terms not specifically defined
herein shall be construed in accordance with
generally accepted accounting principles
consistent with those applied in the
preparation of the financial statements
referred to in Section 4.01(e) hereof.
ARTICLE II.
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Contract Advances. Each
Lender severally agrees, on the terms and
conditions hereinafter set forth, to make
Contract Advances to the Borrower from time
to time on any Business Day during the
period from the date hereof until the
Termination Date in an aggregate amount not
to exceed at any time outstanding the amount
set opposite such Lender's name on the
signature pages hereof or, if such Lender
has entered into any Assignment and
Acceptance, set forth for such Lender in the
Register maintained by the Agent pursuant to
Section 8.07c, as such amount may be reduced
pursuant to Section 2.05 (such Lender's
Commitment ), provided that the aggregate
amount of the Commitments of the Lenders
shall be deemed used from time to time to
the extent of the aggregate amount of the
Auction Advances then outstanding and such
deemed use of the aggregate amount of the
Commitments shall be applied to the Lenders
ratably according to their respective
Commitments (such deemed use of the
aggregate amount of the Commitments being an
Auction Reduction ). Each Contract
Borrowing shall be in an amount not less
than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall
consist of Contract Advances of the same
Type and, in the case of Eurodollar Rate
Advances or Adjusted CD Rate Advances,
having the same Interest Period made or
Converted on the same day by the Lenders
ratably according to their respective
Commitments. Within the limits of each
Lender's Commitment, the Borrower may from
time to time borrow, prepay pursuant to
Section 2.11 and reborrow under this Section
2.01; provided, however, that at no time may
the principal amount outstanding hereunder
exceed the aggregate amount of the
Commitments.
SECTION 2.02. Making the Contract Advances.
(a) Each Contract Borrowing shall be made
on notice, given (i) in the case of a
Contract Borrowing comprising Adjusted CD
Rate Advances or Eurodollar Rate Advances,
not later than 11:00 A.M. (New York City
time) on the third Business Day prior to
the date of the proposed Contract
Borrowing, and (ii) in the case of a
Contract Borrowing comprising Base Rate
Advances, not later than 11:00 A.M. (New
York City time) on the date of the
proposed Contract Borrowing, by the
Borrower to the Agent, which shall give to
each Lender prompt notice thereof. Each
such notice of a Contract Borrowing (a
Notice of Contract Borrowing ) shall be by
telecopier, telex or cable, confirmed
immediately in writing, in substantially
the form of Exhibit B-1 hereto, specifying
therein the requested (A) date of such
Contract Borrowing, (B) Type of Contract
Advances to be made in connection with
such Contract Borrowing, c aggregate
amount of such Contract Borrowing, and (D)
in the case of a Contract Borrowing
comprising Adjusted CD Rate Advances or
Eurodollar Rate Advances, initial Interest
Period for each such Contract Advance.
Each Lender shall, before (x) 12:00 noon
(New York City time) on the date of any
Contract Borrowing comprising Adjusted CD
Rate Advances or Eurodollar Rate Advances,
and (y) 1:00 P.M. (New York City time) on
the date of any Contract Borrowing
comprising Base Rate Advances, make
available for the account of its
Applicable Lending Office to the Agent at
its address referred to in Section 8.02,
in same day funds, such Lender's ratable
portion of such Contract Borrowing. After
the Agent's receipt of such funds and upon
fulfillment of the applicable conditions
set forth in Article III, the Agent will
make such funds available to the Borrower
at the Agent's aforesaid address.
(b) Each Notice of Contract Borrowing
shall be irrevocable and binding on the
Borrower. In the case of any Notice of
Contract Borrowing requesting Adjusted CD
Rate Advances or Eurodollar Rate Advances,
the Borrower shall indemnify each Lender
against any loss, cost or expense incurred
by such Lender as a result of any failure
to fulfill on or before the date specified
in such Notice of Contract Borrowing for
such Contract Borrowing the applicable
conditions set forth in Article III,
including, without limitation, any loss,
cost or expense incurred by reason of the
liquidation or reemployment of deposits or
other funds acquired by such Lender to
fund the Contract Advance to be made by
such Lender as part of such Contract
Borrowing when such Contract Advance, as a
result of such failure, is not made on
such date.
(c) Unless the Agent shall have received
notice from a Lender prior to the date of
any Contract Borrowing that such Lender
will not make available to the Agent such
Lender's ratable portion of such Contract
Borrowing, the Agent may assume that such
Lender has made such portion available to
the Agent on the date of such Contract
Borrowing in accordance with subsection
(a) of this Section 2.02 and the Agent
may, in reliance upon such assumption,
make available to the Borrower on such
date a corresponding amount. If and to
the extent that such Lender shall not have
so made such ratable portion available to
the Agent, such Lender and the Borrower
(following the Agent's demand on such
Lender for the corresponding amount)
severally agree to repay to the Agent
forthwith on demand such corresponding
amount together with interest thereon, for
each day from the date such amount is made
available to the Borrower until the date
such amount is repaid to the Agent, at (i)
in the case of the Borrower, the interest
rate applicable at the time to Contract
Advances made in connection with such
Contract Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such
corresponding amount, such amount so
repaid shall constitute such Lender's
Contract Advance as part of such Contract
Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the
Contract Advance to be made by it as part
of any Contract Borrowing shall not
relieve any other Lender of its
obligation, if any, hereunder to make its
Contract Advance on the date of such
Contract Borrowing, but no Lender shall be
responsible for the failure of any other
Lender to make the Contract Advance to be
made by such other Lender on the date of
any Contract Borrowing.
SECTION 2.03. The Auction Advances. (a)
Each Lender severally agrees that the
Borrower may request Auction Borrowings under
this Section 2.03 from time to time on any
Business Day during the period from the date
hereof until the date occurring 15 days prior
to the Termination Date in the manner set
forth below; provided that, following the
making of each Auction Borrowing, the
aggregate amount of the Advances then
outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders
(computed without regard to any Auction
Reduction).
(i) The Borrower may request an
Auction Borrowing by delivering to the
Agent (A) by telecopier, telex or
cable, confirmed immediately in
writing, a notice of an Auction
Borrowing (a Notice of Auction
Borrowing ), in substantially the form
of Exhibit B-2 hereto, specifying the
date and aggregate amount of the
proposed Auction Borrowing, the
maturity date for repayment of each
Auction Advance to be made as part of
such Auction Borrowing (which maturity
date may not be earlier than the date
occurring 14 days after the date of
such Auction Borrowing or later than
the earlier to occur of (1) 180 days
after the date of the proposed Auction
Borrowing and (2) the Termination
Date), the interest payment date or
dates relating thereto (which shall
occur at least every 90 days), and any
other terms to be applicable to such
Auction Borrowing, not later than 10:00
A.M. (New York City time) (x) at least
one Business Day prior to the date of
the proposed Auction Borrowing, if the
Borrower shall specify in the Notice of
Auction Borrowing that the rates of
interest to be offered by the Lenders
shall be fixed rates per annum and (y)
at least five Business Days prior to
the date of the proposed Auction
Borrowing, if the Borrower shall
specify in the Notice of Auction
Borrowing the basis (such as a quoted
London interbank offered rate or the
Federal Funds Rate) to be used by the
Lenders in determining the rates of
interest to be offered by them and (B)
payment in full to the Agent of the
aggregate auction administration fee
specified in Section 2.04(b) hereof.
The Agent shall in turn promptly notify
each Lender of each request for an
Auction Borrowing received by it from
the Borrower by sending such Lender a
copy of the related Notice of Auction
Borrowing.
(ii) Each Lender may, in its sole
discretion, if it elects to do so,
irrevocably offer to make one or more
Auction Advances to the Borrower as
part of such proposed Auction Borrowing
at a rate or rates of interest
specified by such Lender in its sole
discretion, by notifying the Agent
(which shall give prompt notice thereof
to the Borrower), before 10:00 A.M.
(New York City time) (A) on the date of
such proposed Auction Borrowing, in the
case of a Notice of Auction Borrowing
delivered pursuant to clause (A)(x) of
paragraph (i), above, and (B) three
Business Days before the date of such
proposed Auction Borrowing, in the case
of a Notice of Auction Borrowing
delivered pursuant to clause (A)(y) of
paragraph (i), above, of the minimum
amount and maximum amount of each
Auction Advance that such Lender would
be willing to make as part of such
proposed Auction Borrowing (which
amounts may, subject to the proviso to
the first sentence of this Section
2.03(a), exceed such Lender's
Commitment), the rate or rates of
interest therefor, the basis, rate and
margin used by such Lender (if
applicable) in determining the rate or
rates of interest so offered and the
Yield (if different from such rate or
rates), the interest period relating
thereto and such Lender's Applicable
Lending Office with respect to such
Auction Advance; provided that if the
Agent in its capacity as a Lender
shall, in its sole discretion, elect to
make any such offer, it shall notify
the Borrower of such offer before 9:00
A.M. (New York City time) on the date
on which notice of such election is to
be given to the Agent by the other
Lenders. If any Lender shall elect not
to make such an offer, such Lender
shall so notify the Agent, before 10:00
A.M. (New York City time) on the date
on which notice of such election is to
be given to the Agent by the other
Lenders, and such Lender shall not be
obligated to, and shall not, make any
Auction Advance as part of such Auction
Borrowing; provided that the failure by
any Lender to give such notice shall
not cause such Lender to be obligated
to make any Auction Advance as part of
such proposed Auction Borrowing.
(iii) The Borrower shall, in turn, (A)
before 11:00 A.M. (New York City
time) on the date of such proposed
Auction Borrowing, in the case of a
Notice of Auction Borrowing delivered
pursuant to clause (A)(x) of
paragraph (i), above and (B) before
1:00 P.M. (New York City time) three
Business Days before the date of such
proposed Auction Borrowing, in the
case of a Notice of Auction Borrowing
delivered pursuant to clause (A)(y)
of paragraph (i), above, either (1)
cancel such Auction Borrowing by
giving the Agent notice to that
effect, or (2) irrevocably accept one
or more of the offers made by any
Lender or Lenders pursuant to
paragraph (ii) above, in its sole
discretion, subject only to the
provisions of this paragraph (iii),
by giving notice to the Agent of the
amount of each Auction Advance (which
amount shall be equal to or greater
than the minimum amount, and equal to
or less than the maximum amount,
notified to the Borrower by the Agent
on behalf of such Lender for such
Auction Advance pursuant to paragraph
(ii) above) to be made by each Lender
as part of such Auction Borrowing,
and reject any remaining offers made
by Lenders pursuant to paragraph (ii)
above by giving the Agent notice to
that effect; provided, however, that
(w) the Borrower shall not accept an
offer made pursuant to paragraph (ii)
above, at any Yield if the Borrower
shall have, or shall be deemed to
have, rejected any other offer made
pursuant to paragraph (ii) above, at
a lower Yield, (x) if the Borrower
declines to accept, or is otherwise
restricted by the provisions of this
Agreement from accepting, the maximum
aggregate principal amount of Auction
Borrowings offered at the same Yield
pursuant to paragraph (ii) above,
then the Borrower shall accept a pro
rata portion of each offer made at
such Yield, based as nearly as
possible on the ratio of the
aggregate principal amount of such
offers to be accepted by the Borrower
to the maximum aggregate principal
amount of such offers made pursuant
to paragraph (ii) above (rounding up
or down to the next higher or lower
multiple of $1,000,000), (y) no offer
made pursuant to paragraph (ii) above
shall be accepted unless the Auction
Borrowing in respect of such offer is
in an integral multiple of $1,000,000
and the aggregate amount of such
offers accepted by the Borrower is
equal to at least $5,000,000, and (z)
no offer made pursuant to paragraph
(ii) above shall be accepted at any
interest rate in excess of the Base
Rate then in effect plus 2% per annum
(or such higher rate as may be
permitted by applicable law,
regulation or order).
Any offer or offers made pursuant to
paragraph (ii) above not expressly accepted
or rejected by the Borrower in accordance
with this paragraph (iii)shall be deemed to
have been rejected by the Borrower.
(iv) If the Borrower notifies the Agent
that such Auction Borrowing is canceled
pursuant to clause (1) of paragraph (iii)
above, the Agent shall give prompt notice
thereof to the Lenders and such Auction
Borrowing shall not be made.
(v) If the Borrower accepts one or more
of the offers made by any Lender or
Lenders pursuant to clause (2) of
paragraph (iii) above, the Agent shall in
turn promptly notify (A) each Lender that
has made an offer as described in
paragraph (ii) above, of the date and
aggregate amount of such Auction Borrowing
and whether or not any offer or offers
made by such Lender pursuant to paragraph
(ii) above have been accepted by the
Borrower, (B) each Lender that is to make
an Auction Advance as part of such Auction
Borrowing of the amount of each Auction
Advance to be made by such Lender as part
of such Auction Borrowing, and c each
Lender that is to make an Auction Advance
as part of such Auction Borrowing, upon
receipt, that the Agent has received forms
of documents appearing to fulfill the
applicable conditions set forth in Article
III. Each Lender that is to make an
Auction Advance as part of such Auction
Borrowing shall, before 12:00 noon (New
York City time) on the date of such
Auction Borrowing specified in the notice
received from the Agent pursuant to clause
(A) of the preceding sentence or any later
time when such Lender shall have received
notice from the Agent pursuant to clause c
of the preceding sentence, make available
for the account of its Applicable Lending
Office to the Agent at its address
referred to in Section 8.02 such Lender's
portion of such Auction Borrowing, in same
day funds. Upon fulfillment of the
applicable conditions set forth in Article
III and after receipt by the Agent of such
funds, the Agent will make such funds
available to the Borrower at the Agent's
aforesaid address. Promptly after each
Auction Borrowing the Agent will notify
each Lender of the amount of the Auction
Borrowing, the consequent Auction
Reduction and the dates upon which such
Auction Reduction commenced and will
terminate.
(vi) If the Borrower accepts one or more
of the offers made by any Lender pursuant
to clause (B) of paragraph (iii) above,
the Borrower shall indemnify such Lender
against any loss, cost or expense incurred
by such Lender as a result of any failure
by the Borrower to fulfill on or before
the date specified for such Auction
Borrowing the applicable conditions set
forth in Article III, including, without
limitation, any loss, cost or expense
incurred by reason of the liquidation or
redeployment of deposits or other funds
acquired by such Lender to fund the
Auction Advance to be made by such Lender
as part of such Auction Borrowing when
such Auction Advance, as a result of such
failure, is not made on such date.
(b) Each Auction Borrowing shall be in an
amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess
thereof and, following the making of each
Auction Borrowing, the Borrower shall be in
compliance with the limitation set forth in
the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the
conditions set forth in this Section
2.03, the Borrower may from time to time
borrow under this Section 2.03, repay or
prepay pursuant to subsection (d) below,
and reborrow under this Section 2.03,
provided that an Auction Borrowing shall
not be made within three Business Days of
the date of any other Auction Borrowing.
(d) The Borrower shall repay to the Agent
for the account of each
Lender that has made an Auction Advance,
or each other holder of an Auction Note,
on the maturity date of each Auction
Advance (such maturity date being that
specified by the Borrower for repayment of
such Auction Advance in the related Notice
of Auction Borrowing delivered pursuant to
subsection (a)(i) above and provided in
the Auction Note evidencing such Auction
Advance), the then unpaid principal amount
of such Auction Advance. The Borrower
shall have no right to prepay any
principal amount of any Auction Advance
unless, and then only on the terms,
specified by the Borrower for such Auction
Advance in the related Notice of Auction
Borrowing delivered pursuant to subsection
(a)(i)(A) above and set forth in the
Auction Note evidencing such Auction
Advance.
(e) The Borrower shall pay interest on
the unpaid principal amount of each
Auction Advance from the date of such
Auction Advance to the date the principal
amount of such Auction Advance is repaid
in full, at the rate of interest for such
Auction Advance specified by the Lender
making such Auction Advance in its notice
with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the
interest payment date or dates specified
by the Borrower for such Auction Advance
in the related Notice of Auction Borrowing
delivered pursuant to subsection (a)(i)
above, as provided in the Auction Note
evidencing such Auction Advance; provided,
however, that, if and for so long as a
Prepayment Event or an Event of Default
shall have occurred and be continuing, the
unpaid principal amount of each Auction
Advance shall (to the fullest extent
permitted by law) bear interest until paid
in full at a rate per annum equal at all
times to the Base Rate plus 2% per annum,
payable upon demand.
(f) The indebtedness of the Borrower
resulting from each Auction
Advance made to the Borrower as part of an
Auction Borrowing shall be evidenced by a
separate Auction Note of the Borrower
payable to the order of the Lender making
such Auction Advance.
SECTION 2.04. Fees. (a) The Borrower
agrees to pay to the Agent for the account
of each Lender a commitment fee on the
average daily unused portion of such
Lender's Commitment (without giving effect
to any Auction Reduction) from the date
hereof in the case of each Bank, and from
the effective date specified in the
Assignment and Acceptance pursuant to
which it became a Lender, in the case of
each other Lender, until the earlier to
occur of the Termination Date and, in the
case of the termination in whole of a
Lender's Commitment pursuant to Section
2.05, the date of such termination,
payable on the last day of each March,
June, September and December during such
period, and on the Termination Date, at
the rate per annum set forth below
determined by reference to combined Senior
Debt Ratings from time to time of the two
Significant Subsidiaries (other than SERI)
having the highest Senior Debt Ratings:
Significant Subsidiary with highest Senior
Debt Rating
Senior
Debt Rating
A- and A3
or above
BBB+ and
Baa1 or
BBB and Baa2
or split rated
above
BBB- and Baa3
or split rated
above
BB+ and/or
Ba1 or below
or unrated
A- and A3
or above
.125%
.1375%
.18%
.23%
Significant
Subsidiary with
next highest
Senior Debt
Rating
BBB+ and
Baa1 or
BBB and Baa2
or
split rated above
.1375%
.17%
.1875%
.25%
BBB- and Baa3
or
split rated above
.18%
.1875%
.20%
.30%
BB+ and/or Ba1
or below or unrated
.23%
.25%
.30%
.30%
Any change in the commitment fee will be
effective as of the date on which S&P or
Moody's, as the case may be, announces the
applicable change in any Senior Debt Rating.
(b) The Borrower agrees to pay to the Agent
for its own account an auction
administration fee in the amount of $2,000
in respect of each Auction Borrowing
requested by the Borrower pursuant to
Section 2.03(a)(i), payable on the date of
such request.
SECTION 2.05. Reduction of the Commitments.
(a) The Borrower shall have the right, upon
at least three Business Days' notice to the
Agent, to terminate in whole or reduce
ratably in part the unused portions of the
respective Commitments of the Lenders,
provided that the aggregate amount of the
Commitments of the Lenders shall not be
reduced to an amount that is less than the
aggregate principal amount of the Auction
Advances then outstanding, and provided,
further, that each partial reduction shall
be in the aggregate amount of $1,000,000 or
an integral multiple thereof.
(b) Notwithstanding any other provision of
this Agreement or the Notes (and without
further notice to the Borrower), 364 days
following the date, if any, on which the
combined Senior Debt Ratings of the two
Significant Subsidiaries (other than SERI)
having the highest Senior Debt Ratings shall
be BB+or Ba1 or below, the Commitments
hereunder shall terminate in whole and this
Agreement shall terminate.
SECTION 2.06. Repayment of Contract
Advances. The Borrower shall repay the
principal amount of each Contract Advance
made by each Lender in accordance with the
Contract Note to the order of such Lender.
SECTION 2.07. Interest on Contract
Advances. The Borrower shall pay interest
on the unpaid principal amount of each
Contract Advance made by each Lender from
the date of such Contract Advance until such
principal amount shall be paid in full, at
the following rates per annum:
(a) Base Rate Advances. If such Contract
Advance is a Base Rate
Advance, a rate per annum equal at all
times to the Base Rate in effect from time
to time, payable quarterly on the last day
of each March, June, September and
December and on the date such Base Rate
Advance shall be Converted or paid in
full.
(b) Adjusted CD Rate Advances. If such
Contract Advance is an
Adjusted CD Rate Advance, a rate per annum
equal at all times during the Interest
Period for such Contract Advance to the
sum of the Adjusted CD Rate for such
Interest Period plus the Applicable Margin
for such Adjusted CD Rate Advance in
effect from time to time, payable on the
last day of each Interest Period for such
Adjusted CD Rate Advance and on the date
such Adjusted CD Rate Advance shall be
Converted or paid in full and, if such
Interest Period has a duration of more
than 90 days, on each day that occurs
during such Interest Period every 90 days
from the first day of such Interest
Period.
(c) Eurodollar Rate Advances. Subject to
Section 2.08, if such
Contract Advance is a Eurodollar Rate
Advance, a rate per annum equal at all
times during the Interest Period for such
Contract Advance to the sum of the
Eurodollar Rate for such Interest Period
plus the Applicable Margin for such
Eurodollar Rate Advance in effect from
time to time, payable on the last day of
each Interest Period for such Eurodollar
Rate Advance and on the date such
Eurodollar Rate Advance shall be Converted
or paid in full and, if such Interest
Period has a duration of more than three
months, on each day that occurs during
such Interest Period every three months
from the first day of such Interest
Period.
SECTION 2.08. Additional Interest on
Eurodollar Rate Advances. The Borrower
shall pay to each Lender, so long as such
Lender shall be required under regulations
of the Board of Governors of the Federal
Reserve System to maintain reserves with
respect to liabilities or assets
consisting of or including Eurocurrency
Liabilities, additional interest on the
unpaid principal amount of each Eurodollar
Rate Advance of such Lender, from the date
of such Contract Advance until such
principal amount is paid in full, at an
interest rate per annum equal at all times
to the remainder obtained by subtracting
(i) the Eurodollar Rate for the Interest
Period for such Contract Advance from (ii)
the rate obtained by dividing such
Eurodollar Rate by a percentage equal to
100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such
Interest Period, payable on each date on
which interest is payable on such Contract
Advance. Such additional interest shall
be determined by such Lender and notified
to the Borrower through the Agent, and
such determination shall be conclusive and
binding for all purposes, absent manifest
error.
SECTION 2.09. Interest Rate
Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely
information for the purpose of determining
each Adjusted CD Rate or Eurodollar Rate,
as applicable. If any one or more of the
Reference Banks shall not furnish such
timely information to the Agent for the
purpose of determining any such interest
rate, the Agent shall determine such
interest rate on the basis of timely
information furnished by the remaining
Reference Banks.
(b) The Agent shall give prompt notice to
the Borrower and the Lenders of the
applicable interest rate determined by the
Agent for purposes of Section 2.07(a), (b)
or c, and the applicable rate, if any,
furnished by each Reference Bank for the
purpose of determining the applicable
interest rate under Section 2.07(b) or c.
(c) If fewer than two Reference Banks
furnish timely information to the Agent
for determining the Adjusted CD Rate for
any Adjusted CD Rate Advances, or the
Eurodollar Rate for any Eurodollar Rate
Advances,
(i) the Agent shall forthwith notify
the Borrower and the Lenders that the
interest rate cannot be determined for
such Adjusted CD Rate Advances or
Eurodollar Rate Advances, as the case
may be,
(ii) each such Advance will
automatically, on the last day of the
then existing Interest Period therefor,
Convert into a Base Rate Advance (or if
such Advance is then a Base Rate
Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to
make, or to Convert Contract Advances
into, Adjusted CD Rate Advances or
Eurodollar Rate Advances, as the case
may be, shall be suspended until the
Agent shall notify the Borrower and the
Lenders that the circumstances causing
such suspension no longer exist.
(d) If, with respect to any Eurodollar
Rate Advances, the Majority
Lenders notify the Agent that the
Eurodollar Rate for any Interest Period
for such Advances will not adequately
reflect the cost to such Majority Lenders
of making, funding or maintaining their
respective Eurodollar Rate Advances for
such Interest Period, the Agent shall
forthwith so notify the Borrower and the
Lenders, whereupon
(i) each Eurodollar Rate Advance will
automatically, on the last day of the
then existing Interest Period therefor,
Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to
make, or to Convert Contract Advances
into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify
the Borrower and the Lenders that the
circumstances causing such suspension
no longer exist.
SECTION 2.10. Conversion of Contract
Advances.
(a) Voluntary. The Borrower may, upon
notice given to the Agent not later
than 11:00 A.M. (New York City time) on
the third Business Day prior to the
date of the proposed Conversion and
subject to the provisions of Sections
2.09 and 2.13, on any Business Day,
Convert all Contract Advances of one
Type made in connection with the same
Contract Borrowing into Advances of
another Type; provided, however, that
any Conversion of, or with respect to,
any Adjusted CD Rate Advances or
Eurodollar Rate Advances into Advances
of another Type shall be made on, and
only on, the last day of an Interest
Period for such Adjusted CD Rate
Advances or Eurodollar Rate Advances,
unless the Borrower shall also
reimburse the Lenders in respect
thereof pursuant to Section 8.04(b) on
the date of such Conversion. Each such
notice of a Conversion (a Notice of
Conversion ) shall be by telecopier,
telex or cable, confirmed immediately
in writing, in substantially the form
of Exhibit B-3 hereto, specifying
therein (i) the date of such
Conversion, (ii) the Contract Advances
to be Converted, and (iii) if such
Conversion is into, or with respect to,
Adjusted CD Rate Advances or Eurodollar
Rate Advances, the duration of the
Interest Period for each such Contract
Advance.
(b) Mandatory. If a Borrower shall
fail to select the Type of anyContract
Advance or the duration of any Interest
Period for any Contract Borrowing
comprising Eurodollar Rate Advances or
Adjusted CD Rate Advances in accordance
with the provisions contained in the
definition of "Interest Period" in
Section 1.01 and Section 2.10(a), or if
any proposed Conversion of a Contract
Borrowing that is to comprise
Eurodollar Rate Advances or Adjusted CD
Rate Advances upon Conversion shall not
occur as a result of the circumstances
described in paragraph c below, the
Agent will forthwith so notify the
Borrower and the Lenders, and such
Advances will automatically, on the
last day of the then existing Interest
Period therefor, Convert into Base Rate
Advances.
(c) Failure to Convert. Each notice
of Conversion given pursuant to
subsection (a) above shall be
irrevocable and binding on the
Borrower. In the case of any Contract
Borrowing that is to comprise
Eurodollar Rate Advances or Adjusted CD
Rate Advances upon Conversion, the
Borrower agrees to indemnify each
Lender against any loss, cost or
expense incurred by such Lender if, as
a result of the failure of the Borrower
to satisfy any condition to such
Conversion (including, without
limitation, the occurrence of any
Prepayment Event or Event of Default,
or any event that would constitute an
Event of Default or a Prepayment Event
with notice or lapse of time or both),
such Conversion does not occur. The
Borrower's obligations under this
subsection c shall survive the
repayment of all other amounts owing to
the Lenders and the Agent under this
Agreement and the Notes and the
termination of the Commitments.
SECTION 2.11. Prepayments. The Borrower
may, upon at least two Business Days'
notice to the Agent stating the proposed
date and aggregate principal amount of the
prepayment, and if such notice is given
the Borrower shall, prepay the outstanding
principal amounts of the Advances made as
part of the same Contract Borrowing in
whole or ratably in part, together with
accrued interest to the date of such
prepayment on the principal amount
prepaid; provided, however, that (i) each
partial prepayment shall be in an
aggregate principal amount not less than
$1,000,000 or any integral multiple of
$100,000 in excess thereof and (ii) in the
case of any such prepayment of an Adjusted
CD Advance or Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to
Section 8.04(b) on the date of such
prepayment.
SECTION 2.12. Increased Costs. (a) If,
due to either (i) the introduction of or
any change (other than any change by way
of imposition or increase of reserve
requirements, in the case of Adjusted CD
Rate Advances, included in the Adjusted CD
Rate Reserve Percentage or, in the case of
Eurodollar Rate Advances, included in the
Eurodollar Rate Reserve Percentage) in or
in the interpretation of any law or
regulation or (ii) the compliance with any
guideline or request from any central bank
or other governmental authority (whether
or not having the force of law), there
shall be any increase in the cost to any
Lender of agreeing to make or making,
funding or maintaining Adjusted CD Rate
Advances or Eurodollar Rate Advances, then
the Borrower shall from time to time, upon
demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for
the account of such Lender additional
amounts sufficient to compensate such
Lender for such increased cost. A
certificate as to the amount of such
increased cost, submitted to the Borrower
and the Agent by such Lender, shall be
conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that
compliance with any law or regulation or
any guideline or request from any central
bank or other governmental authority
(whether or not having the force of law)
affects or would affect the amount of
capital required or expected to be
maintained by such Lender or any
corporation controlling such Lender and
that the amount of such capital is
increased by or based upon the existence
of such Lender's commitment to lend
hereunder and other commitments of this
type (including such Lender s commitment
to lend hereunder) or the Advances, then,
upon demand by such Lender (with a copy of
such demand to the Agent), the Borrower
shall immediately pay to the Agent for the
account of such Lender, from time to time
as specified by such Lender, additional
amounts sufficient to compensate such
Lender or such corporation in the light of
such circumstances, to the extent that
such Lender reasonably determines such
increase in capital to be allocable to the
existence of such Lender's commitment to
lend hereunder or the Advances made by
such Lender. A certificate in reasonable
detail as to such amounts submitted to the
Borrower and the Agent by such Lender
shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.13. Illegality.
Notwithstanding any other provision of
this Agreement, if any Lender shall notify
the Agent that the introduction of or any
change in or change in the interpretation
of any law or regulation makes it
unlawful, or any central bank or other
governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances
or to fund or maintain Eurodollar Rate
Advances hereunder, (i) the obligation of
the Lenders to make, or to Convert
Contract Advances into, Eurodollar Rate
Advances shall be suspended until the
Agent shall notify the Borrower and the
Lenders that the circumstances causing
such suspension no longer exist and (ii)
the Borrower shall forthwith prepay in
full all Eurodollar Rate Advances of all
Lenders then outstanding, together with
interest accrued thereon, unless the
Borrower, within five Business Days of
notice from the Agent, Converts all
Eurodollar Rate Advances of all Lenders
then outstanding into Advances of another
Type in accordance with Section 2.10.
SECTION 2.14. Payments and Computations.
(a) The Borrower shall make each payment
hereunder and under the Notes not later
than 12:00 noon (New York City time) on
the day when due in U.S. dollars to the
Agent at its address referred to in
Section 8.02 in same day funds. The Agent
will promptly thereafter cause to be
distributed like funds relating to the
payment of principal or interest or
commitment fees ratably (other than
amounts payable pursuant to Section 2.02c,
2.03, 2.08, 2.12, 2.15 or 8.04(b)) to the
Lenders for the account of their
respective Applicable Lending Offices, and
like funds relating to the payment of any
other amount payable to any Lender to such
Lender for the account of its Applicable
Lending Office, in each case to be applied
in accordance with the terms of this
Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of
the information contained therein in the
Register pursuant to Section 8.07(d), from
and after the effective date specified in
such Assignment and Acceptance, the Agent
shall make all payments hereunder and
under the Notes in respect of the interest
assigned thereby to the Lender assignee
thereunder, and the parties to such
Assignment and Acceptance shall make all
appropriate adjustments in such payments
for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes each
Lender, if and to the extent payment owed
to such Lender is not made when due
hereunder or under any Note held by such
Lender, to charge from time to time to the
extent permitted by law against any or all
of the Borrower's accounts with such
Lender any amount so due.
(c) All computations of interest based on
the Base Rate shall be made by the Agent
on the basis of a year of 365 or 366 days,
as the case may be, and all computations
of interest based on the Adjusted CD Rate,
the Eurodollar Rate or the Federal Funds
Rate and of commitment fees and interest
payable on Auction Advances shall be made
by the Agent, and all computations of
interest pursuant to Section 2.08 shall be
made by a Lender, on the basis of a year
of 360 days, in each case for the actual
number of days (including the first day
but excluding the last day) occurring in
the period for which such interest or
commitment fees are payable. Each
determination by the Agent (or, in the
case of Section 2.08, by a Lender) of an
interest rate hereunder shall be
conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or
under the Notes shall be stated to be due
on a day other than a Business Day, such
payment shall be made on the next
succeeding Business Day, and such
extension of time shall in such case be
included in the computation of payment of
interest or commitment fee, as the case
may be; provided, however, if such
extension would cause payment of interest
on or principal of Eurodollar Rate
Advances to be made in the next following
calendar month, such payment shall be made
on the next preceding Business Day.
(e) Unless the Agent shall have received
notice from the Borrower prior to the date
on which any payment is due to the Lenders
hereunder that the Borrower will not make
such payment in full, the Agent may assume
that the Borrower has made such payment in
full to the Agent on such date and the
Agent may, in reliance upon such
assumption, cause to be distributed to
each Lender on such due date an amount
equal to the amount then due such Lender.
If and to the extent that the Borrower
shall not have so made such payment in
full to the Agent, each Lender shall repay
to the Agent forthwith on demand such
amount distributed to such Lender together
with interest thereon, for each day from
the date such amount is distributed to
such Lender until the date such Lender
repays such amount to the Agent, at the
Federal Funds Rate.
(f) Notwithstanding anything to the
contrary contained herein, any amount
payable by the Borrower hereunder or under
any Note that is not paid when due
(whether at stated maturity, by
acceleration or otherwise) shall (to the
fullest extent permitted by law) bear
interest from the date when due until paid
in full at a rate per annum equal at all
times to the Base Rate plus 2%, payable
upon demand.
SECTION 2.15. Taxes. (a) Any and all
payments by the Borrower hereunder or
under the Contract Notes shall be made, in
accordance with Section 2.14, free and
clear of and without deduction for any and
all present or future taxes, levies,
imposts, deductions, charges or
withholdings, and all liabilities with
respect thereto, excluding, in the case of
each Lender and the Agent, taxes imposed
on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws
of which such Lender or the Agent (as the
case may be) is organized or any political
subdivision thereof and, in the case of
each Lender, taxes imposed on its income,
and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable
Lending Office or any political
subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions,
charges, withholdings and liabilities
being hereinafter referred to as Taxes ).
If the Borrower shall be required by law
to deduct any Taxes from or in respect of
any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the
sum payable shall be increased as may be
necessary so that after making all
required deductions (including deductions
applicable to additional sums payable
under this Section 2.15) such Lender or
the Agent (as the case may be) receives an
amount equal to the sum it would have
received had no such deductions been made,
(ii) the Borrower shall make such
deductions and (iii) the Borrower shall
pay the full amount deducted to the
relevant taxation authority or other
authority in accordance with applicable
law.
(b) In addition, the Borrower agrees
to pay any present or future stamp or
documentary taxes or any other excise
or property taxes, charges or similar
levies which arise from any payment
made hereunder or under the Notes or
from the execution, delivery or
registration of, or otherwise with
respect to, this Agreement or the Notes
(hereinafter referred to as Other
Taxes ).
(c) The Borrower will indemnify each
Lender and the Agent for the full
amount of Taxes or Other Taxes
(including, without limitation, any
Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under
this Section 2.15) paid by such Lender
or the Agent (as the case may be) and
any liability (including penalties,
interest and expenses) arising
therefrom or with respect thereto,
whether or not such Taxes or Other
Taxes were correctly or legally
asserted. This indemnification shall
be made within 30 days from the date
such Lender or the Agent (as the case
may be) makes written demand therefor.
Nothing herein shall preclude the right
of the Borrower to contest any such
Taxes or Other Taxes so paid, and the
Lenders in question or the Agent (as
the case may be) will, following notice
from, and at the expense of, the
Borrower, take such actions as the
Borrower may reasonably request to
preserve the Borrower's rights to
contest such Taxes or Other Taxes, and,
promptly following receipt of any
refund of amounts with respect to Taxes
or Other Taxes for which such Lenders
or the Agent were previously
indemnified under this Section 2.15,
pay to the Borrower such refunded
amounts (including any interest paid by
the relevant taxing authority with
respect to such amounts).
(d) Prior to the date of the initial
Borrowing in the case of each Bank, and
on the date of the Assignment and
Acceptance pursuant to which it became
a Lender in the case of each other
Lender, and from time to time
thereafter if requested by the Borrower
or the Agent, each Lender organized
under the laws of a jurisdiction
outside the United States shall provide
the Agent and the Borrower with the
forms prescribed by the Internal
Revenue Service of the United States
certifying that such Lender is exempt
from United States withholding taxes
with respect to all payments to be made
to such Lender hereunder and under the
Notes. If for any reason during the
term of this Agreement, any Lender
becomes unable to submit the forms
referred to above or the information or
representations contained therein are
no longer accurate in any material
respect, such Lender shall notify the
Agent and the Borrower in writing to
that effect. Unless the Borrower and
the Agent have received forms or other
documents satisfactory to them
indicating that payments hereunder or
under any Note are not subject to
United States withholding tax, the
Borrower or, if the Borrower fails to
do so, the Agent, shall withhold taxes
from such payments at the applicable
statutory rate in the case of payments
to or for any Lender organized under
the laws of a jurisdiction outside the
United States.
(e) Any Lender claiming any additional
amounts payable pursuant to this
Section 2.15 shall use its best efforts
(consistent with its internal policy
and legal and regulatory restrictions)
to change the jurisdiction of its
Applicable Lending Office or take other
actions customary or otherwise
reasonable under the circumstances if
the making of such a change or the
taking of such actions would avoid the
need for, or reduce the amount of, any
such additional amounts which may
thereafter accrue and would not, in the
reasonable judgment of such Lender, be
otherwise disadvantageous to such
Lender.
(f) Without prejudice to the survival
of any other agreement of the
Borrower hereunder, the agreements and
obligations of the Borrower contained
in this Section 2.15 shall survive the
payment in full of principal and
interest hereunder and under the Notes.
SECTION 2.16. Sharing of Payments, Etc.
If any Lender shall obtain any payment
(whether voluntary, involuntary, through
the exercise of any right of set-off, or
otherwise) on account of the Contract
Advances made by it (other than pursuant to
Section 2.02c, 2.08, 2.12, 2.15 or 8.04(b))
in excess of its ratable share of payments
on account of the Contract Advances
obtained by all the Lenders, such Lender
shall forthwith purchase from the other
Lenders such participations in the Contract
Advances made by them as shall be necessary
to cause such purchasing Lender to share
the excess payment ratably with each of
them, provided, however, that if all or any
portion of such excess payment is
thereafter recovered from such purchasing
Lender, such purchase from each Lender
shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase
price to the extent of such recovery
together with an amount equal to such
Lender's ratable share (according to the
proportion of (i) the amount of such
Lender's required repayment to (ii) the
total amount so recovered from the
purchasing Lender) of any interest or other
amount paid or payable by the purchasing
Lender in respect of the total amount so
recovered. The Borrower agrees that any
Lender so purchasing a participation from
another Lender pursuant to this Section
2.16 may, to the fullest extent permitted
by law, exercise all its rights of payment
(including the right of set-off) with
respect to such participation as fully as
if such Lender were the direct creditor of
the Borrower in the amount of such
participation.
SECTION 2.17. Extension of Termination
Date.
(a) Unless the Termination Date shall
have occurred, at least 90 but not more
than 180 days prior to the then-
effective Termination Date, the
Borrower may request the Lenders, by
written notice to the Agent, to consent
to a one-year extension of the
Termination Date. Each Lender shall,
in its sole discretion, determine
whether to consent to such request and
shall notify the Agent of its
determination within 30 days of such
Lender's receipt of notice of such
request. If such request shall have
been consented to by all the Lenders,
the Agent shall notify the Borrower in
writing of such consent, and such
extension shall become effective upon
the delivery by the Borrower to the
Agent and each Lender, on or prior to
the then effective Termination Date, of
(i) a certificate of a duly authorized
officer of the Borrower, dated such
date, as to the accuracy, both before
and after giving effect to such
proposed extension, of the
representations and warranties set
forth in Section 4.01 (including,
without limitation, with respect to any
required governmental approvals) and as
to the absence, both before and after
giving effect to such proposed
extension, of any Prepayment Event, any
Event of Default or any event that with
the giving of notice or the passage of
time or both would constitute an Event
of Default and (ii) an opinion of
counsel to the Borrower as to the
extension of the Termination Date and
such other matters as any Lender,
through the Agent, may reasonably
request.
(b) Notwithstanding any other provision
of this Agreement, the Termination Date
may be extended no more than twice
pursuant to subsection (a) above.
ARTICLE III.
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to
Initial Advances. The obligation of each
Lender to make its initial Advance is
subject to the conditions precedent that on
or before the date of such Advance:
(a) The Agent shall have received the
following, each dated the same date
(except for the financial statements
referred to in paragraph (iv) below), in
form and substance satisfactory to the
Agent and (except for the Contract Notes)
with one copy for each Lender:
(i) The Contract Notes payable to the
order of each of the Lenders,
respectively;
(ii) Certified copies of the
resolutions of the Board of Directors
of the Borrower approving this
Agreement and the Notes, and of all
documents evidencing other necessary
corporate action with respect to this
Agreement and the Notes;
(iii) A certificate of the Secretary or
an Assistant Secretary of the Borrower
certifying (A) the names and true
signatures of the officers of the
Borrower authorized to sign this
Agreement and the Notes and the other
documents to be delivered hereunder;
(B) that attached thereto are true and
correct copies of the Certificate of
Incorporation and the By-laws of the
Borrower, in each case in effect on
such date; and c that attached thereto
are true and correct copies of all
governmental and regulatory
authorizations and approvals required
for the due execution, delivery and
performance of this Agreement and the
Notes, including, without limitation, a
copy of the order (File No. 70-8149) of
the SEC under the Public Utility
Holding Company Act of 1935 authorizing
the Borrower's execution, delivery and
performance of this Agreement and the
Notes (the SEC Order );
(iv) Copies of the consolidated balance
sheets of the Borrower and its
subsidiaries as of December 31, 1994,
and the related consolidated statements
of income, retained earnings and cash
flows of the Borrower and its
subsidiaries for the fiscal year then
ended, and copies of the consolidated
financial statements of the Borrower
and its subsidiaries as of June 30,
1995, in each case certified by a duly
authorized officer of the Borrower as
having been prepared in accordance with
generally accepted accounting
principles consistently applied;
(v) A favorable opinion of counsel for
the Borrower, acceptable to the Agent,
substantially in the form of Exhibit D
hereto and as to such other matters as
any Lender through the Agent may
reasonably request;
(vi) A favorable opinion of King &
Spalding, Special New York counsel for
the Agent, substantially in the form of
Exhibit E hereto; and
(vii) A duly executed and delivered Form
U-1, in the form prescribed by
Regulation U issued by the Board of
Governors of the Federal Reserve
System.
(b) The Agent shall have received the
fees payable pursuant to the Fee Letter.
SECTION 3.02. Conditions Precedent to
Each Contract Borrowing.
The obligation of each Lender to make a
Contract Advance on the occasion of each
Contract Borrowing (including the initial
Contract Borrowing) shall be subject to
the further conditions precedent that on
the date of such Contract Borrowing (i)
the following statements shall be true
(and each of the giving of the applicable
Notice of Contract Borrowing or Notice of
Conversion and the acceptance by the
Borrower of any proceeds of a Contract
Borrowing shall constitute a
representation and warranty by the
Borrower that on the date of such Contract
Borrowing or Conversion, as applicable,
such statements are true):
(A) The representations and warranties
contained in Section 4.01 (excluding
those contained in subsections (e) and
(f) thereof if such Contract Borrowing
does not increase the aggregate
outstanding principal amount of
Contract Advances over the aggregate
outstanding principal amount of all
Contract Advances immediately prior to
the making of such Contract Borrowing)
are correct on and as of the date of
such Contract Borrowing, before and
after giving effect to such Contract
Borrowing and to the application of the
proceeds therefrom, as though made on
and as of such date;
(B) No event has occurred and is
continuing, or would result from such
Contract Borrowing or from the
application of the proceeds therefrom,
that constitutes a Prepayment Event or
an Event of Default or would constitute
an Event of Default or a Prepayment
Event with notice or lapse of time or
both; and
(ii) The Agent shall have received such
other approvals, opinions or documents
with respect to the truth of the
foregoing statements (A) and (B) as any
Lender through the Agent may reasonably
request.
SECTION 3.03. Conditions Precedent to Each
Auction Borrowing. The obligation of each
Lender that is to make an Auction Advance as
part of any Auction Borrowing (including the
initial Auction Borrowing) to make such
Auction Advance is subject to the conditions
precedent that on the date of such Auction
Borrowing:
(i) The Agent shall have received
the written confirmatory Notice of
Auction Borrowing with respect
thereto;
(ii) The Agent shall have received an
Auction Note, duly executed by the
Borrower, payable to the order of
such Lender for each of the Auction
Advances to be made by such Lender as
part of such Auction Borrowing, in a
principal amount equal to the
principal amount of the Auction
Advance to be evidenced thereby and
otherwise on such terms as were
agreed to for such Auction Advance in
accordance with Section 2.03;
(iii) The following statements shall
be true (and each of the giving of
the applicable Notice of Auction
Borrowing and the acceptance by a
Borrower of the proceeds of such
Auction Borrowing shall constitute a
representation and warranty by the
Borrower that on the date of such
Auction Borrowing such statements are
true):
(A) The representations and
warranties contained in Section
4.01 are correct on and as of the
date of such Auction Borrowing,
before and after giving effect to
such Auction Borrowing and to the
application of the proceeds
therefrom, as though made on and
as of such date, and
(B) No event has occurred and is
continuing, or would result from
such Auction Borrowing or from the
application of the proceeds
therefrom, that constitutes a
Prepayment Event or an Event of
Default or that would constitute
an Event of Default or a
Prepayment Event with notice or
lapse of time or both; and
(iv) The Borrower shall have
delivered to the Agent copies of such
other approvals and documents with
respect to the truth of the foregoing
statements (A) and (B) as any Lender
through the Agent may reasonably
request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and
Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly
organized, validly existing and in good
standing under the laws of the
jurisdiction of its incorporation and is
duly qualified to do business as a foreign
corporation in each jurisdiction in which
the nature of the business conducted or
the property owned, operated or leased by
it requires such qualification, except
where failure to so qualify would not
materially adversely affect its condition
(financial or otherwise), operations,
business, properties, or prospects.
(b) The execution, delivery and
performance by the Borrower of this
Agreement and the Notes are within the
Borrower's corporate powers, have been
duly authorized by all necessary corporate
action, and do not contravene (i) the
Borrower's charter or by-laws, (ii) law
applicable to the Borrower or its
properties or (iii) any contractual or
legal restriction binding on or affecting
the Borrower or its properties.
(c) No authorization or approval or other
action by, and no notice to or filing
with, any governmental authority or
regulatory body is required for the due
execution, delivery and performance by the
Borrower of this Agreement or the Notes,
except for the following (each of which
has been duly filed or obtained, and is
final and in full force and effect): (i)
the filing of the Declaration on Form U-1
and amendments and exhibits thereto in
File No. 70-8149 and (ii) the SEC Order.
(d) This Agreement is, and the Notes when
delivered hereunder will be, legal, valid
and binding obligations of the Borrower
enforceable against the Borrower in
accordance with their respective terms,
subject, however, to any applicable
bankruptcy, reorganization, rearrangement,
moratorium or similar laws affecting
generally the enforcement of creditors'
rights and remedies and to general
principles of equity (regardless of
whether enforceability is considered in a
proceeding in equity or at law).
(e) The consolidated financial statements
of the Borrower and its subsidiaries as of
December 31, 1994 and for the year ended
on such date, as set forth in the
Borrower's Annual Report on Form 10-K for
the fiscal year ended on such date, as
filed with the SEC, accompanied by an
opinion of Coopers & Lybrand, and the
consolidated financial statements of the
Borrower and its subsidiaries as of June
30, 1995, and for the six-month period
ended on such date set forth in the
Borrower's Quarterly Report on Form 10-Q
for the fiscal quarter ended on such date,
as filed with the SEC, copies of each of
which have been furnished to each Bank,
fairly present (subject, in the case of
such statements dated June 30, 1995, to
year-end adjustments) the consolidated
financial condition of the Borrower and
its subsidiaries as at such dates and the
consolidated results of the operations of
the Borrower and its subsidiaries for the
periods ended on such dates, in accordance
with generally accepted accounting
principles consistently applied. Except
as disclosed in the Borrower's Quarterly
Report on Form 10-Q for the fiscal period
ended June 30, 1995, since December 31,
1994, there has been no material adverse
change in the financial condition or
operations of the Borrower.
(f) Except as disclosed in the Borrower's
Annual Report on Form 10-
K for the fiscal year ended December 31,
1994, and the Borrower's Quarterly Report
on Form 10-Q for the period ended June 30,
1995, there is no pending or threatened
action or proceeding affecting the
Borrower or any of its subsidiaries before
any court, governmental agency or
arbitrator that, if determined adversely,
could reasonably be expected to have a
material adverse effect upon the condition
(financial or otherwise), operations,
business, properties or prospects of the
Borrower or on its ability to perform its
obligations under this Agreement or any
Note, or that purports to affect the
legality, validity, binding effect or
enforceability of this Agreement or any
Note. There has been no change in any
matter disclosed in such filings that
could reasonably be expected to result in
such a material adverse effect.
(g) No event has occurred and is
continuing that constitutes a Prepayment
Event or an Event of Default or that would
constitute an Event of Default or a
Prepayment Event but for the requirement
that notice be given or time elapse or
both.
(h) The Borrower is not engaged in the
business of extending credit for the
purpose of purchasing or carrying margin
stock (within the meaning of Regulation U
issued by the Board of Governors of the
Federal Reserve System), and not more than
25% of the value of the assets of the
Borrower and its subsidiaries subject to
the restrictions of Section 5.02(a), c or
(d) is, on the date hereof, represented by
margin stock (within the meaning of
Regulation U issued by the Board of
Governors of the Federal Reserve System).
(i) The Borrower is not an investment
company or a company controlled by an
investment company within the meaning of
the Investment Company Act of 1940, as
amended, or an investment advisor within
the meaning of the Investment Company Act
of 1940, as amended. The Borrower is a
"holding company" as that term is defined
in, and is registered under, the Public
Utility Holding Company Act of 1935.
(j) No ERISA Termination Event has
occurred, or is reasonably expected to
occur, with respect to any ERISA Plan that
may materially and adversely affect the
condition (financial or otherwise),
operations, business, properties or
prospects of the Borrower and its
subsidiaries, taken as a whole.
(k) Schedule B (Actuarial Information) to
the most recent annual report (Form 5500
Series) with respect to each ERISA Plan,
copies of which have been filed with the
Internal Revenue Service and furnished to
the Banks, is complete and accurate and
fairly presents the funding status of such
ERISA Plan, and since the date of such
Schedule B there has been no material
adverse change in such funding status.
(l) The Borrower has not incurred, and
does not reasonably expect to incur, any
withdrawal liability under ERISA to any
Multiemployer Plan.
ARTICLE V.
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So
long as any Note or any amount payable by
the Borrower hereunder shall remain unpaid
or any Lender shall have any Commitment
hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in
writing:
(a) Keep Books; Corporate Existence;
Maintenance of Properties; Compliance with
Laws; Insurance; Taxes.
(i) keep proper books of record and
account, all in accordance with generally
accepted accounting principles;
(ii) except as otherwise permitted by
Section 5.02c, preserve and keep in full
force and effect its existence and
preserve and keep in full force and effect
its licenses, rights and franchises to the
extent necessary to carry on its business;
(iii) maintain and keep, or cause to be
maintained and kept, its properties in
good repair, working order and condition,
and from time to time make or cause to be
made all needful and proper repairs,
renewals, replacements and improvements,
in each case to the extent such properties
are not obsolete and not necessary to
carry on its business;
(iv) comply in all material respects with
all applicable laws, rules, regulations
and orders, such compliance to include,
without limitation, paying before the same
become delinquent all taxes, assessments
and governmental charges imposed upon it
or its property, except to the extent
being contested in good faith by
appropriate proceedings, and compliance
with ERISA and Environmental Laws;
(v) maintain insurance with responsible
and reputable insurance companies or
associations or through its own program of
self-insurance in such amounts and
covering such risks as is usually carried
by companies engaged in similar businesses
and owning similar properties in the same
general areas in which it operates and
furnish to the Agent, within a reasonable
time after written request therefor, such
information as to the insurance carried as
any Lender, through the Agent, may
reasonably request; and
(vi) pay and discharge its obligations and
liabilities in the ordinary course of
business, except to the extent that such
obligations and liabilities are being
contested in good faith by appropriate
proceedings.
(b) Use of Proceeds. The Borrower may use
the proceeds of the Borrowings for only:
(i) general corporate purposes, and
(ii), subject to the terms and conditions of
this Agreement, repurchases of common stock
of the Borrower and/or investments in
nonregulated and/or nonutility businesses.
(c) Reporting Requirements. Furnish to the
Lenders:
(i) as soon as available and in any event
within 60 days after the end of each of
the first three quarters of each fiscal
year of the Borrower, (A) consolidated
balance sheets of the Borrower and its
subsidiaries as of the end of such quarter
and (B) consolidated statements of income
and retained earnings of the Borrower and
its subsidiaries for the period commencing
at the end of the previous fiscal year and
ending with the end of such quarter, each
certified by the duly authorized officer
of the Borrower as having been prepared in
accordance with generally accepted
accounting principles, consistently
applied;
(ii) as soon as available and in any event
within 120 days after the end of each
fiscal year of the Borrower, a copy of the
annual report for such year for the
Borrower and its subsidiaries, containing
consolidated financial statements for such
year certified without qualification by
Coopers & Lybrand (or such other
nationally recognized public accounting
firm as the Agent may approve), and
certified by a duly authorized officer of
the Borrower as having been prepared in
accordance with generally accepted
accounting principles, consistently
applied;
(iii) as soon as available and in any event
within 60 days after the end of each of
the first three quarters of each fiscal
year of the Borrower and within 120 days
after the end of the fiscal year of the
Borrower, a certificate of the duly
authorized officer of the Borrower,
stating that no Prepayment Event or Event
of Default has occurred and is continuing,
or if a Prepayment Event or Event of
Default has occurred and is continuing, a
statement setting forth details of such
Prepayment Event or Event of Default, as
the case may be, and the action that the
Borrower has taken and proposes to take
with respect thereto;
(iv) as soon as possible and in any event
within five days after the Borrower has
knowledge of the occurrence of each
Prepayment Event, Event of Default and
each event that, with the giving of notice
or lapse of time or both, would constitute
an Event of Default, continuing on the
date of such statement, a statement of the
duly authorized officer of the Borrower
setting forth details of such Prepayment
Event, Event of Default or event, as the
case may be, and the actions that the
Borrower has taken and proposes to take
with respect thereto;
(v) as soon as possible and in any event
within five days after the Borrower
receives notice of the commencement of any
litigation against, or any arbitration,
administrative, governmental or regulatory
proceeding involving, the Borrower or any
of its subsidiaries, that, if adversely
determined, could reasonably be expected
to have a materialadverseeffect on the
condition (financial or otherwise),
operations,business,properties or
prospects of the Borrower, notice of such
litigation describing in reasonable detail
the facts and circumstances concerning
such litigation and the Borrower's or such
subsidiary's proposed actions in
connection therewith;
(vi) promptly after the sending or filing
thereof, copies of all reports that the
Borrower sends to any of its securities
holders, and copies of all reports and
registration statements which the Borrower
files with the SEC or any national
securities exchange pursuant to the
Securities Act of 1933 or the Exchange
Act, and of all certificates pursuant to
Rule 24 which the Borrower files with the
SEC pursuant to the Public Utility Holding
Company Act of 1935 in connection with the
proceeding of the SEC in File No. 70-8149
related to the SEC Order or any subsequent
proceedings related thereto;
(vii) as soon as possible and in any event
(A) within 30 days after the Borrower
knows or has reason to know that any ERISA
Termination Event described in clause (i)
of the definition of ERISA Termination
Event with respect to any ERISA Plan has
occurred and (B) within 10 days after the
Borrower knows or has reason to know that
any other ERISA Termination Event with
respect to any ERISA Plan has occurred, a
statement of the chief financial officer
of the Borrower describing such ERISA
Termination Event and the action, if any,
that the Borrower proposes to take with
respect thereto;
(viii)promptly and in any event within two
Business Days after receipt thereof by the
Borrower from the PBGC, copies of each
notice received by the Borrower of the
PBGC's intention to terminate any ERISA
Plan or to have a trustee appointed to
administer any ERISA Plan;
(ix) promptly and in any event within 30
days after the filing thereof with the
Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with
respect to each ERISA Plan;
(x) promptly and in any event within five
Business Days after receipt thereof by the
Borrower from a Multiemployer Plan
sponsor, a copy of each notice received by
the Borrower concerning the imposition of
withdrawal liability pursuant to Section
4202 of ERISA;
(xi) promptly and in any event within five
Business Days after Moody's or S&P has
changed any Senior Debt Rating of any
Significant
Subsidiary, notice of such change; and
(xii) such other information respecting the
condition or operations, financial or
otherwise, of the Borrower or any of its
subsidiaries as any Lender through the
Agent may from time to time reasonably
request.
SECTION 5.02. Negative Covenants. So long
as any Note or any amount payable by the
Borrower hereunder shall remain unpaid or
any Lender shall have any Commitment
hereunder, the Borrower will not, without
the written consent of the Majority Lenders:
(a) Liens, Etc. Create or suffer to
exist any Lien upon or with respect to any
of its properties (including, without
limitation, any shares of any class of
equity security of any of its Significant
Subsidiaries or of NOPSI), in each case to
secure or provide for the payment of Debt,
other than:
(i) Liens in existence on the date of
this Agreement;
(ii) Liens for taxes, assessments or
governmental charges or levies to the
extent not past due, or which are being
contested in good faith in appropriate
proceedings diligently conducted and
for which the Borrower has provided
adequate reserves for the payment
thereof in accordance with generally
accepted accounting principles;
(iii) pledges or deposits in the
ordinary course of business to secure
obligations under worker's compensation
laws or similar legislation;
(iv) other pledges or deposits in the
ordinary course of business (other than
for borrowed monies) that, in the
aggregate, are not material to the
Borrower;
(v) purchase money mortgages or other
liens or purchase money security
interests upon or in any property
acquired or held by the Borrower in the
ordinary course of business to secure
the purchase price of such property or
to secure indebtedness incurred solely
for the purpose of financing the
acquisition of such property;
(vi) Liens imposed by law such as
materialmen's, mechanics', carriers',
workers' and repairmen's Liens and
other similar Liens arising in the
ordinary course of business for sums
not yet due or currently being
contested in good faith by appropriate
proceedings diligently conducted;
(vii) attachment, judgment or other
similar Liens arising in connection
with court proceedings, provided that
such Liens, in the aggregate, shall not
exceed $50,000,000 at any one time
outstanding,
(viii)other Liens not otherwise referred
to in the foregoing clauses (i) through
(vii) above, provided that such Liens, in
the aggregate, shall not exceed
$100,000,000 at any one time and (ix)
Liens created for the sole purpose of
extending, renewing or replacing in
whole or in part Debt secured by any
Lien referred in the foregoing clauses
(i) through
(viii) above, provided that the principal
amount of indebtedness secured thereby
shall not exceed the principal amount
of indebtedness so secured at the time
of such extension, renewal or
replacement and that such extension,
renewal or replacement, as the case may
be, shall be limited to all or a part
of the property or Debt that secured
the Lien so extended, renewed or
replaced (and any improvements on such
property); provided, further, that no
Lien permitted under the foregoing
clauses (i) through (ix) shall be
placed upon any shares of any class of
equity security of any Significant
Subsidiary or of NOPSI unless the
obligations of the Borrower to the
Lenders hereunder are simultaneously
and ratably secured by such Lien
pursuant to documentation satisfactory
to the Lenders.
(b) Debt. Create, incur, assume or
suffer to exist, any Debt of the Borrower
other than:
(i) Debt under this Agreement and the
Notes;
(ii) Debt secured by Liens permitted
under Section 5.02(a);
(iii) Debt as lessee under leases which
shall have been, or should be, in
accordance with generally accepted
accounting principles, recorded as
capital leases;
(iv) Debt incurred in the form of
endorsements in the normal course of
business;
(v) Guaranty Obligations (excluding
Guaranty Obligations described in
paragraph (vi) below) and other Debt
not to exceed $800,000,000 in the
aggregate at any one time; and
(vi) Guaranty Obligations not otherwise
permitted hereunder, but disclosed on
Schedule II.
(c) Mergers, Etc. Merge with or into or
consolidate with or into any other
Person, except that the Borrower may merge
with any other Person, provided that,
immediately after giving effect to any
such merger,
(i) the Borrower is the surviving
corporation or (A) the surviving
corporation is organized under the laws
of one of the states of the United
States of America and assumes the
Borrower's obligations hereunder in a
manner acceptable to the Majority
Lenders, and (B) after giving effect to
such merger, the Senior Debt Ratings of
the two Significant Subsidiaries (other
than SERI) having the highest Senior
Debt Ratings shall be at least BBB- and
Baa3,
(ii) no event shall have occurred and be
continuing that constitutes a
Prepayment Event or an Event of Default
or would constitute an Event of Default
but for the requirement that notice be
given or time elapse or both, and
(iii) the Borrower shall not be liable
with respect to any Debt or allow its
property to be subject to any Lien
which would not be permissible with
respect to it or its property under
this Agreement on the date of such
transaction.
(d) Disposition of Assets. Sell, lease,
transfer, convey or otherwise dispose of
(whether in one transaction or in a series
of transactions) any shares of voting
common stock (or of stock or other
instruments convertible into voting common
stock) of any Significant Subsidiary or of
NOPSI, or permit any Significant
Subsidiary or NOPSI to issue, sell or
otherwise dispose of any of its shares of
voting common stock (or of stock or other
instruments convertible into voting common
stock), except to the Borrower or a
Significant Subsidiary.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. Each of
the following events shall constitute an Event
of Default hereunder:
(a) The Borrower shall fail to pay any
principal of any Advance when the same
becomes due and payable, or shall fail to
pay interest thereon or any other amount
payable under this Agreement or any of the
Notes within three Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made
by the Borrower herein or by the Borrower
(or any of its officers) in connection
with this Agreement shall prove to have
been incorrect or misleading in any
material respect when made; or
(c) The Borrower shall fail to perform or
observe (
(i) any term, covenant or agreement
contained in Section 5.01(b) or 5.02 or
(ii) any other term, covenant or agreement
contained in this Agreement on its part
to be performed or observed if the
failure to perform or observe such
other term, covenant or agreement shall
remain unremedied for 30 days after
written notice thereof shall have been
given to the Borrower by the Agent or
any Lender; or
(d) The Borrower shall fail to pay any
principal of or premium or interest on any
Debt of the Borrower that is outstanding
in a principal amount in excess of
$50,000,000 in the aggregate (but
excluding Debt evidenced by the Notes)
when the same becomes due and payable
(whether by scheduled maturity, required
prepayment, acceleration, demand or
otherwise), and such failure shall
continue after the applicable grace
period, if any, specified in the agreement
or instrument relating to such Debt; or
(e) The Borrower, any Significant
Subsidiary or NOPSI shall generally not
pay its debts as such debts become due, or
shall admit in writing its inability to
pay its debts generally, or shall make a
general assignment for the benefit of
creditors; or any proceeding shall be
instituted by or against the Borrower, any
Significant Subsidiary or NOPSI seeking to
adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up,
reorganization, arrangement, adjustment,
protection, relief, or composition of it
or its debts under any law relating to
bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry
of an order for relief or the appointment
of a receiver, trustee, custodian or other
similar official for it or for any
substantial part of its property and, in
the case of any such proceeding instituted
against it (but not instituted by it),
either such proceeding shall remain
undismissed or unstayed for a period of 30
days, or any of the actions sought in such
proceeding (including, without limitation,
the entry of an order for relief against,
or the appointment of a receiver, trustee,
custodian or other similar official for,
it or for any substantial part of its
property) shall occur; or the Borrower,
any Significant Subsidiary or NOPSI shall
take any corporate action to authorize or
to consent to any of the actions set forth
above in this subsection (e); or (f). Any
judgment or order for the payment of money
in excess of $25,000,000 shall be rendered
against the Borrower and either
(i) enforcement,proceedings shall have
been commenced by any creditor upon
such judgment or order or
(ii) there shall be any period of 10
consecutive Business Days during which
a stay of enforcement of such judgment
or order, by reason of a pending appeal
or otherwise, shall not be in effect;
or
(g) (i) An ERISA Plan of the Borrower or
any ERISA Affiliate of the
Borrower shall fail to maintain the
minimum funding standards required by
Section 412 of the Internal Revenue
Code of 1986 for any plan year or a
waiver of such standard is sought or
granted under Section 412(d) of the
Internal Revenue Code of 1986, or
(ii) an ERISA Plan of the Borrower or
any ERISA Affiliate of the Borrower is,
shall have been or will be terminated
or the subject of termination
proceedings under ERISA, or
(iii) the Borrower or any ERISA
Affiliate of the Borrower has incurred
or will incur a liability to or on
account of an ERISA Plan under Section
4062, 4063 or 4064 of ERISA and there
shall result from such event either a
liability or a material risk of
incurring a liability to the PBGC or an
ERISA Plan, or
(iv) any ERISA Termination Event with
respect to an ERISA Plan of the
Borrower or any ERISA Affiliate of the
Borrower shall have occurred, and in
the case of any event described in
clauses (i) through
(iv), (A) such event (if correctable)
shall not have been corrected and (B)
the then-present value of such ERISA
Plan's vested benefits exceeds the then-
current value of assets accumulated in
such ERISA Plan by more than the amount
of $25,000,000 (or in the case of an
ERISA Termination Event involving the
withdrawal of a substantial employer
(as defined in Section 4001(a)(2) of
ERISA), the withdrawing employer's
proportionate share of such excess
shall exceed such amount).
SECTION 6.02. Remedies. If any Prepayment
Event or Event of Default shall occur and be
continuing, then, and in any such event, the
Agent
(i) shall at the request, or may with the
consent, of the Majority Lenders, by
notice to the Borrower, declare the
obligation of each Lender to make Advances
to be terminated, whereupon the same shall
forthwith terminate, and
(ii) shall at the request, or may with the
consent, of the Majority Lenders, by
notice to the Borrower, declare the Notes,
all interest thereon and all other amounts
payable under this Agreement to be
forthwith due and payable, whereupon the
Notes, all such interest and all such
amounts shall become and be forthwith due
and payable, without presentment, demand,
protest or further notice of any kind, all
of which are hereby expressly waived by
the Borrower; provided, however, that in
the event of an actual or deemed entry of
an order for relief with respect to the
Borrower, any Significant Subsidiary or
NOPSI under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make
Advances shall automatically be
terminated and
(B) the Notes, all such interest and all
such amounts shall automatically become
and be due and payable, without
presentment, demand, protest or any
notice of any kind, all of which are
hereby expressly waived by the
Borrower.
ARTICLE VII.
THE AGENT
SECTION 7.01. Authorization and Action.
Each Lender hereby appoints and authorizes the
Agent to take such action as agent on its
behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are
reasonably incidental thereto. As to any
matters not expressly provided for by this
Agreement (including, without limitation,
enforcement or collection of the Notes), the
Agent shall not be required to exercise any
discretion or take any action, but shall be
required to act or to refrain from acting (and
shall be fully protected in so acting or
refraining from acting) upon the instructions
of the Majority Lenders, and such instructions
shall be binding upon all Lenders and all
holders of Notes; provided, however, that the
Agent shall not be required to take any action
which exposes the Agent to personal liability
or which is contrary to this Agreement or
applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given
to it by the Borrower pursuant to the terms of
this Agreement.
SECTION 7.02. Agent's Reliance, Etc.
Neither the Agent nor any of its directors,
officers, agents or employees shall be liable
for any action taken or omitted to be taken by
it or them under or in connection with this
Agreement, except for its or their own gross
negligence or willful misconduct. Without
limitation of the generality of the foregoing,
the Agent:
(i) may treat the payee of any Note as the
holder thereof until the Agent receives
and accepts an Assignment and Acceptance
entered into by the Lender which is the
payee of such Note, as assignor, and any
assignee pursuant to Section 8.07;
(ii) may consult with legal counsel
(including counsel for the Borrower),
independent public accountants and other
experts selected by it and shall not be
liable for any action taken or omitted to
be taken in good faith by it in accordance
with the advice of such counsel,
accountants or experts;
(iii) makes no warranty or representation to
any Lender and shall not be responsible to
any Lender for any statements, warranties
or representations (whether written or
oral) made in or in connection with this
Agreement;
(iv) shall not have any duty to ascertain or
to inquire as to the performance or
observance of any of the terms, covenants
or conditions of this Agreement on the
part of the Borrower or to inspect the
property (including the books and records)
of the Borrower;
(v) shall not be responsible to any Lender
for the due execution, legality, validity,
enforceability, genuineness, sufficiency
or value of, or the perfection or priority
of any lien or security interest created
or purported to be created under or in
connection with, this Agreement or any
other instrument or document furnished
pursuant hereto; and
(vi) shall incur no liability under or in
respect of this Agreement by acting upon
any notice, consent, certificate or other
instrument or writing (which may be by
telecopier, telegram, cable or telex)
believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates.
With respect to its Commitment, the Advances
made by it and the Notes issued to it, Citibank
shall have the same rights and powers under
this Agreement as any other Lender and may
exercise the same as though it were not the
Agent; and the term Lender or Lenders shall,
unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank
and its affiliates may accept deposits from,
lend money to, act as trustee under indentures
of, and generally engage in any kind of
business with, the Borrower, any of its
subsidiaries and any Person who may do business
with or own securities of the Borrower or any
such subsidiary, all as if Citibank were not
the Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each
Lender acknowledges that it has, independently
and without reliance upon the Agent or any
other Lender and based on the financial
statements referred to in Section 4.01(e) and
such other documents and information as it has
deemed appropriate, made its own credit
analysis and decision to enter into this
Agreement. Each Lender also acknowledges that
it will, independently and without reliance
upon the Agent or any other Lender and based on
such documents and information as it shall deem
appropriate at the time, continue to make its
own credit decisions in taking or not taking
action under this Agreement.
SECTION 7.05. Indemnification. The Lenders
agree to indemnify the Agent (to the extent not
reimbursed by the Borrower), ratably according
to the respective principal amounts of the
Contract Notes then held by each of them (or if
no Contract Notes are at the time outstanding
or if any Contract Notes are held by Persons
which are not Lenders, ratably according to the
respective amounts of their Commitments), from
and against any and all liabilities,
obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or
asserted against the Agent in any way relating
to or arising out of this Agreement or any
action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be
liable for any portion of such liabilities,
obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross
negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses
(including reasonable counsel fees) incurred by
the Agent in connection with the preparation,
execution, delivery, administration,
modification, amendment or enforcement (whether
through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of
rights or responsibilities under, this
Agreement, to the extent that such expenses are
reimbursable by the Borrower but for which the
Agent is not reimbursed by the Borrower.
SECTION 7.06. Successor Agent. The Agent
may resign at any time by giving written notice
thereof to the Lenders and the Borrower and may
be removed at any time with or without cause by
the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders
shall have the right to appoint a successor
Agent, which, for so long as no Prepayment
Event or Event of Default has occurred and is
continuing, shall be a Lender and shall be
approved by the Borrower (with such approval
not to be unreasonably withheld or delayed).
If no successor Agent shall have been so
appointed by the Majority Lenders and approved
by the Borrower, and shall have accepted such
appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent,
which shall be a commercial bank organized
under the laws of the United States or of any
other country that is a member of the OECD
having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon
succeed to and become vested with all the
rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations
under this Agreement. After any retiring
Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall
inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent
under this Agreement. Notwithstanding the
foregoing, if no Prepayment Event or Event of
Default, and no event that with the giving of
notice or the passage of time, or both, would
constitute an Prepayment Event or Event of
Default, shall have occurred and be continuing,
then no successor Agent shall be appointed
under this Section 7.06 without the prior
written consent of the Borrower, which consent
shall not be unreasonably withheld or delayed.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No
amendment or waiver of anyprovision of this
Agreement or the Contract Notes, nor consent
to any departureby the Borrower therefrom,
shall in any event be effective unless the
same shall bein writing and signed by the
Majority Lenders, and then such waiver or
consentshall be effective only in the
specific instance and for the specific
purpose forwhich given; provided, however,
that no amendment, waiver or consent
shall,unless in writing and signed by all
the Lenders (other than any Lender that is
theBorrower or an Affiliate of the
Borrower), do any of the following:
(a) waive anyof the conditions specified in
Section 3.01, 3.02 or 3.03,
(b) increase theCommitments of the Lenders
or subject the Lenders to any additional
obligations,
(c) reduce the principal of, or interest
on, the Contract Notes or any fees or
other amounts payable hereunder, (d)
postpone any date fixed for any payment of
principal of, or interest on, the Contract
Notes or any fees or other amounts payable
hereunder, (e) change the percentage of
the Commitments or of the aggregate unpaid
principal amount of the Contract Notes, or
the number of Lenders, which shall be
required for the Lenders or any of them to
take any action hereunder or (f) amend
this Section 8.01 or Section 2.17(a); and
provided, further, that no amendment,
waiver or consent shall, unless in writing
and signed by the Agent in addition to the
Lenders required above to take such
action, affect the rights or duties of the
Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices
and other communications provided for hereunder
shall be in writing (including telecopier,
telegraphic, telex or cable communication) and
mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its
address at 639 Loyola Avenue, New Orleans, LA
70113, Attention: Treasurer; if to any Bank, at
its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to
the Agent, at its address at 399 Park Avenue,
New York, New York 10043, Attention: Utilities
Department, North American Finance Group; or,
as to each party, at such other address as
shall be designated by such party in a written
notice to the other parties. All such notices
and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be
effective when deposited in the mails,
telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to
the cable company, respectively, except that
notices and communications to the Agent
pursuant to Article II or VII shall not be
effective until received by the Agent. Except
as otherwise provided in Section 5.01c, notices
and other communications given by the Borrower
to the Agent shall be deemed given to the
Lenders.
SECTION 8.03. No Waiver; Remedies. No
failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any
other or further exercise thereof or the
exercise of any other right. The remedies
herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses;
Indemnification.
(a) The Borrower agrees to pay on demand
all costs and expenses incurred by the
Agent in connection with the
preparation, execution, delivery,
syndication administration,
modification and amendment of this
Agreement, the Notes and the other
documents to be delivered hereunder,
including, without limitation, the
reasonable fees and out-of-pocket
expenses of counsel for the Agent with
respect thereto and with respect to
advising the Agent as to its rights and
responsibilities under this Agreement.
Any invoices to the Borrower with
respect to the aforementioned expenses
shall describe such costs and expenses
in reasonable detail. The Borrower
further agrees to pay on demand all
costs and expenses, if any (including,
without limitation, counsel fees and
expenses of outside counsel and of
internal counsel), incurred by the
Agent and the Lenders in connection
with the enforcement (whether through
negotiations, legal proceedings or
otherwise) of, and the protection of
the rights of the Lenders under, this
Agreement, the Notes and the other
documents to be delivered hereunder,
including, without limitation,
reasonable counsel fees and expenses in
connection with the enforcement of
rights under this Section 8.04(a).
(b) If any payment of principal of, or
Conversion of, any Adjusted CD Rate
Advance or Eurodollar Rate Advance is
made other than on the last day of the
Interest Period for such Contract
Advance, as a result of a payment or
Conversion pursuant to Section 2.09(d),
2.10 or 2.13, acceleration of the
maturity of the Notes pursuant to
Section 6.02, assignment to another
Lender upon demand of the Borrower
pursuant to Section 8.07(h) or (i) or
for any other reason, the Borrower
shall, upon demand by any Lender (with
a copy of such demand to the Agent),
pay to the Agent for the account of
such Lender any amounts required to
compensate such Lender for any
additional losses, costs or expenses
which it may reasonably incur as a
result of such payment or Conversion,
including, without limitation, any loss
(including loss of anticipated profits
upon such Lender's representation to
the Borrower that it has made
reasonable efforts to mitigate such
loss), cost or expense incurred by
reason of the liquidation or
reemployment of deposits or other funds
acquired by any Lender to fund or
maintain such Contract Advance. Any
Lender making a demand pursuant to this
Section 8.04(b) shall provide the
Borrower with a written certification
of the amounts required to be paid to
such Lender, showing in reasonable
detail the basis for the Lender's
determination of such amounts;
provided, however, that no Lender shall
be required to disclose any
confidential or proprietary information
in any certification provided pursuant
hereto, and the failure of any Lender
to provide such certification shall not
affect the obligations of the Borrower
hereunder.
(c) The Borrower hereby agrees to
indemnify and hold each Lender, the
Agent and their respective Affiliates
and their respective officers,
directors, employees and professional
advisors (each, an Indemnified Person
) harmless from and against any and all
claims, damages, losses, liabilities,
costs or expenses (including reasonable
attorney's fees and expenses, whether
or not such Indemnified Person is named
as a party to any proceeding or is
otherwise subjected to judicial or
legal process arising from any such
proceeding) that any of them may incur
or which may be claimed against any of
them by any person or entity by reason
of or in connection with the execution,
delivery or performance of this
Agreement, the Notes or any transaction
contemplated thereby, or the use by the
Borrower or any of its subsidiaries of
the proceeds of any Advance, except
that no Indemnified Person shall be
entitled to any indemnification
hereunder to the extent that such
claims, damages, losses, liabilities,
costs or expenses are finally
determined by a court of competent
jurisdiction to have resulted from the
gross negligence or willful misconduct
of such Indemnified Person. The
Borrower's obligations under this
Section 8.04c shall survive the
repayment of all amounts owing to the
Lenders and the Agent under this
Agreement and the Notes and the
termination of the Commitments. If and
to the extent that the obligations of
the Borrower under this Section 8.04c
are unenforceable for any reason, the
Borrower agrees to make the maximum
contribution to the payment and
satisfaction thereof which is
permissible under applicable law.
SECTION 8.05. Right of Set-off. Upon
(i) the occurrence and during the
continuance of any Event of Default or
Prepayment Event and
(ii) the making of the request or the
granting of the consent specified by Section
6.02 to authorize the Agent to declare the
Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is
hereby authorized at any time and from time to
time, to the fullest extent permitted by law,
to set off and apply any and all deposits
(general or special, time or demand,
provisional or final) at any time held and
other indebtedness at any time owing by such
Lender to or for the credit or the account of
the Borrower against any and all of the
obligations of the Borrower now or hereafter
existing under this Agreement and any Note held
by such Lender, whether or not such Lender
shall have made any demand under this Agreement
or such Note and although such obligations may
be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and
application made by such Lender, provided that
the failure to give such notice shall not
affect the validity of such set-off and
application. The rights of each Lender under
this Section 8.05 are in addition to other
rights and remedies (including, without
limitation, other rights of set-off) which such
Lender may have.
SECTION 8.06. Binding Effect. This
Agreement shall become effective when it shall
have been executed by the Borrower and the
Agent and when the Agent shall have been
notified by each Bank that such Bank has
executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower,
the Agent and each Lender and their respective
successors and assigns, except that the
Borrower shall not have the right to assign its
rights hereunder or any interest herein without
the prior written consent of the Lenders.
SECTION 8.07. Assignments and
Participations.
(a) Each Lender may assign to one or more
banks or other entities all or a portion
of its rights and obligations under this
Agreement (including, without limitation,
all or a portion of its Commitment, the
Contract Advances owing to it and the
Contract Note or Notes held by it);
provided, however, that
(i) the Borrower and the Agent shall have
consented to such assignment (such
consent not to be unreasonably withheld
or delayed) by signing the Assignment
and Acceptance referred to in clause
(iv) below;
(ii) each such assignment shall be of a
constant, and not a varying, percentage
of all rights and obligations under
this Agreement (other than any Auction
Advances or Auction Notes);
(iii) the amount of the Commitment of the
assigning Lender being assigned
pursuant to each such assignment
(determined as of the date of the
Assignment and Acceptance with respect
to such assignment) shall in no event
be less than $10,000,000 and shall be
an integral multiple of $1,000,000 (or
shall be the total amount of the
assigning Lender s Commitment); and
(iv) the parties to each such assignment
shall execute and deliver to the Agent,
for its acceptance and recording in the
Register, an Assignment and Acceptance,
together with any Contract Note or
Notes subject to such assignment and a
processing and recordation fee of
$2,500 (plus an amount equal to out-of-
pocket legal expenses of the Agent,
estimated by the Agent and advised to
such parties). Upon such execution,
delivery, acceptance and recording,
from and after the effective date
specified in each Assignment and
Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the
extent that rights and obligations
hereunder have been assigned to it
pursuant to such Assignment and
Acceptance, have the rights and
obligations of a Lender hereunder and
(y) the Lender assignor thereunder
shall, to the extent that rights and
obligations hereunder have been
assigned by it pursuant to such
Assignment and Acceptance, relinquish
its rights and be released from its
obligations under this Agreement (and,
in the case of an Assignment and
Acceptance covering all or the
remaining portion of an assigning
Lender's rights and obligations under
this Agreement, such Lender shall cease
to be a party hereto). Notwithstanding
anything to the contrary contained in
this Agreement, any Lender at any time
may assign all or any portion of its
rights and obligations under this
Agreement to any Affiliate of such
Lender.
(b) By executing and delivering an
Assignment and Acceptance, the Lender
assignor thereunder and the assignee
thereunder confirm to and agree with each
other and the other parties hereto as
follows: (i) other than as provided in
such Assignment and Acceptance, such
assigning Lender makes no representation
or warranty and assumes no responsibility
with respect to any statements, warranties
or representations made in or in
connection with this Agreement or the
execution, legality, validity,
enforceability, genuineness, sufficiency
or value of this Agreement or any other
instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes
no representation or warranty and assumes
no responsibility with respect to the
financial condition of the Borrower or the
performance or observance by the Borrower
of any of its obligations under this
Agreement or any other instrument or
document furnished pursuant hereto; (iii)
such assignee confirms that it has
received a copy of this Agreement,
together with copies of the financial
statements referred to in Section 4.01(e)
and such other documents and information
as it has deemed appropriate to make its
own credit analysis and decision to enter
into such Assignment and Acceptance; (iv)
such assignee will, independently and
without reliance upon the Agent, such
assigning Lender or any other Lender and
based on such documents and information as
it shall deem appropriate at the time,
continue to make its own credit decisions
in taking or not taking action under this
Agreement; (v) such assignee appoints and
authorizes the Agent to take such action
as agent on its behalf and to exercise
such powers under this Agreement as are
delegated to the Agent by the terms
hereof, together with such powers as are
reasonably incidental thereto; and (vi)
such assignee agrees that it will perform
in accordance with their terms all of the
obligations which by the terms of this
Agreement are required to be performed by
it as a Lender.
(c) The Agent shall maintain at its
address referred to in Section 8.02 a copy
of each Assignment and Acceptance
delivered to and accepted by it and a
register for the recordation of the names
and addresses of the Lenders and the
Commitment of, and principal amount of the
Contract Advances owing to, each Lender
from time to time (the Register ). The
entries in the Register shall be
conclusive and binding for all purposes,
absent manifest error, and the Borrower,
the Agent and the Lenders may treat each
Person whose name is recorded in the
Register as a Lender hereunder for all
purposes of this Agreement. The Register
shall be available for inspection by the
Borrower or any Lender at any reasonable
time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender
and an assignee, together with any
Contract Note or Notes subject to such
assignment, the Agent shall, if such
Assignment and Acceptance has been
completed and is in substantially the form
of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the
information contained therein in the
Register and (iii) give prompt notice
thereof to the Borrower. Within five
Business Days after its receipt of such
notice, the Borrower, at its own expense,
shall execute and deliver to the Agent in
exchange for the surrendered Contract Note
or Notes a new Contract Note to the order
of such assignee in an amount equal to the
Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the
assigning Lender has retained a Commitment
hereunder, a new Contract Note to the
order of the assigning Lender in an amount
equal to the Commitment retained by it
hereunder. Such new Contract Note or
Notes shall be in an aggregate principal
amount equal to the aggregate principal
amount of such surrendered Contract Note
or Notes, shall be dated the effective
date of such Assignment and Acceptance and
shall otherwise be in substantially the
form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more
banks or other entities any Auction Note
or Notes held by it, without the consent
of the Borrower.
(f) Each Lender may sell participations
to one or more banks, financial
institutions or other entities in or to
all or a portion of its rights and
obligations under this Agreement
(including, without limitation, all or a
portion of its Commitment, the Advances
owing to it and the Note or Notes held by
it); provided, however, that (i) such
Lender's obligations under this Agreement
(including, without limitation, its
Commitment to the Borrower hereunder)
shall remain unchanged, (ii) such Lender
shall remain solely responsible to the
other parties hereto for the performance
of such obligations, (iii) such Lender
shall remain the holder of any such Note
for all purposes of this Agreement, and
(iv) the Borrower, the Agent and the other
Lenders shall continue to deal solely and
directly with such Lender in connection
with such Lender's rights and obligations
under this Agreement.
(g) Any Lender may, in connection with
any assignment or participation or
proposed assignment or participation
pursuant to this Section 8.07, disclose to
the assignee or participant or proposed
assignee or participant, any information
relating to the Borrower furnished to such
Lender by or on behalf of the Borrower;
provided that, prior to any such
disclosure, the assignee or participant or
proposed assignee or participant shall
agree to preserve the confidentiality of
any confidential information relating to
the Borrower received by it from such
Lender.
(h) If any Lender shall fail to consent
to the extension of the Termination Date
within 30 days of receipt by such Lender
of notice of any request pursuant to
Section 2.17, then upon termination of
such 30-day period, the Borrower may
demand that such Lender assign in
accordance with this Section 8.07 to one
or more assignees designated by the
Borrower and acceptable to the Majority
Lenders (provided that, for purposes of
this determination by the Majority
Lenders, the non-consenting Lender shall
not be included in the Lenders holding
Contract Advances or having Commitments)
all (but not less than all) of such
Lender's Commitment and the Contract
Advances owing to it within the next 15
days. If any such assignee designated by
the Borrower shall fail to consummate such
assignment on terms acceptable to such
Lender, or if the Borrower shall fail to
designate any such assignee for all of
such Lender's Commitment or Advances, then
such Lender may assign such Commitment and
Advances to any other assignee acceptable
to the Majority Lenders (provided that,
for purposes of this determination by the
Majority Lenders, the non-consenting
Lender shall not be included in the
Lenders holding Contract Advances or
having Commitments) in accordance with
this Section 8.07 during such 15-day
period; it being understood for purposes
of this Section 8.07(h) that such
assignment shall be conclusively deemed to
be on terms acceptable to such Lender, and
such Lender shall be compelled to
consummate such assignment to an assignee
designated by the Borrower, if such
assignee (i) shall agree to such
assignment in substantially the form of
Exhibit C hereto and (ii) shall offer
compensation to such Lender in an amount
equal to the sum of the principal amount
of all Contract Advances outstanding to
such Lender plus all interest accrued
thereon to the date of such payment plus
all other amounts payable by the Borrower
to such Lender hereunder (whether or not
then due) as of the date of such payment
accrued in favor of such Lender hereunder.
(i) If any Lender shall make any
demand for payment under Section 2.12
or 2.15, or if any Lender shall be the
subject of any notification or
assertion of illegality under Section
2.13, then within 30 days after any
such demand (if, but only if, such
demanded payment has been made by the
Borrower) or notification or assertion,
the Borrower may, with the approval of
the Agent (which approval shall not be
unreasonably withheld) and provided
that no Prepayment Event, Event of
Default or event that, with the giving
of notice or lapse of time or both,
would constitute an Event of Default,
shall then have occurred and be
continuing, demand that such Lender
assign in accordance with this Section
8.07 to one or more assignees
designated by the Borrower and
acceptable to the Majority Lenders
(provided that, for purposes of this
determination by the Majority Lenders,
the Lender making a demand for payment
or subject to a notification or
assertion of illegality shall not be
included in the Lenders holding
Contract Advances or having
Commitments) all (but not less than
all) of such Lender's Commitment and
the Contract Advances owing to it
within the period ending on the later
to occur of such 30th day and the last
day of the longest of the then current
Interest Periods for such Advances. If
any such assignee designated by the
Borrower and approved by the Majority
Lenders shall fail to consummate such
assignment on terms acceptable to such
Lender, or if the Borrower shall fail
to designate any such assignees
acceptable to the Majority Lenders for
all or part of such Lender's Commitment
or Advances, then such demand by the
Borrower shall become ineffective; it
being understood for purposes of this
subsection (i) that such assignment
shall be conclusively deemed to be on
terms acceptable to such Lender, and
such Lender shall be compelled to
consummate such assignment to an
Eligible Assignee designated by the
Borrower, if such Eligible Assignee (A)
shall agree to such assignment by
entering into an Assignment and
Acceptance with such Lender and (B)
shall offer compensation to such Lender
in an amount equal to all amounts then
owing by the Borrower to such Lender
hereunder and under the Note made by
the Borrower to such Lender, whether
for principal, interest, fees, costs or
expenses (other than the demanded
payment referred to above and payable
by the Borrower as a condition to the
Borrower's right to demand such
assignment), or otherwise. In
addition, in the event that the
Borrower shall be entitled to demand
the replacement of any Lender pursuant
to this subsection (i), the Borrower
may, in the case of any such Lender,
with the approval of the Agent (which
approval shall not be unreasonably
withheld) and provided that no
Prepayment Event, Event of Default or
event that, with the giving of notice
or lapse of time or both, would
constitute an Event of Default, shall
then have occurred and be continuing,
terminate all (but not less than all)
such Lender's Commitment and prepay all
(but not less than all) such Lender's
Advances not so assigned, together with
all interest accrued thereon to the
date of such prepayment and all fees,
costs and expenses and other amounts
then owing by the Borrower to such
Lender hereunder and under the Note
made by the Borrower to such Lender, at
any time from and after such later
occurring day in accordance with
Sections 2.05 and 2.11 hereof (but
without the requirement stated therein
for ratable treatment of the other
Lenders), if and only if, after giving
effect to such termination and
prepayment, the sum of the aggregate
principal amount of the Advances of all
Lenders then outstanding does not
exceed the then remaining Commitments
of the Lenders. Notwithstanding
anything set forth above in this
subsection (i) to the contrary, the
Borrower shall not be entitled to
compel the assignment by any Lender
demanding payment under Section 2.12(a)
of its Commitment and Advances or
terminate and prepay the Commitment and
Advances of such Lender if, prior to or
promptly following any such demand by
the Borrower, such Lender shall have
changed or shall change, as the case
may be, its Applicable Lending Office
for its Eurodollar Rate Advances so as
to eliminate the further incurrence of
such increased cost. In furtherance of
the foregoing, any such Lender
demanding payment or giving notice as
provided above agrees to use reasonable
efforts to so change its Applicable
Lending Office if, to do so, would not
result in the incurrence by such Lender
of additional costs or expenses which
it deems material or, in the sole
judgment of such Lender, be inadvisable
for regulatory, competitive or internal
management reasons.
(j) Anything in this Section 8.07 to the
contrary notwithstanding, any
Lender may assign and pledge all or any
portion of its Commitment and the Advances
owing to it to any Federal Reserve Bank
(and its transferees) as collateral
security pursuant to Regulation A of the
Board of Governors of the Federal Reserve
System and any Operating Circular issued
by such Federal Reserve Bank. No such
assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 8.08. Governing Law. THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 8.09. Consent to Jurisdiction;
Waiver of Jury Trial.
(a) To the fullest extent permitted by law,
the Borrower hereby irrevocably
(i) submits to the non-exclusive
jurisdiction of any New York State or
Federal court sitting in New York City
and any appellate court from any
thereof in any action or proceeding
arising out of or relating to this
agreement or any other Loan Document,
and
(ii) agrees that all claims in respect of
such action or proceeding may be heard
and determined in such New York State
court or in such Federal court. The
Borrower hereby irrevocably waives, to
the fullest extent permitted by law,
the defense of an inconvenient forum to
the maintenance of such action or
proceeding. The Borrower also
irrevocably consents, to the fullest
extent permitted by law, to the service
of any and all process in any such
action or proceeding by the mailing by
certified mail of copies of such
process to the Borrower at its address
specified in Section 8.02. The
Borrower agrees, to the fullest extent
permitted by law, that a final judgment
in any such action or proceeding shall
be conclusive and may be enforced in
other jurisdictions by suit on the
judgment or in any other manner
provided by law.
(b) THE BORROWER, THE AGENT AND THE LENDERS
HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY NOTE, OR ANY OTHER
INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER
OR THEREUNDER.
SECTION 8.10. Execution in Counterparts.
This Agreement may be executed in any number of
counterparts and by different parties hereto in
separate counterparts, each of which when so
executed shall be deemed to be an original and
all of which taken together shall constitute
one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their
respective officers thereunto duly authorized,
as of the date first above written.
ENTERGY CORPORATION
By
Name:
Title:
CITIBANK, N.A.,as Agent
By
Name:
Title:
<PAGE>
Commitment Bank
$36,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By
Name:
Title:
$36,000,000 THE BANK OF NEW YORK
By
Name:
Title:
$36,000,000 CHEMICAL BANK
By
Name:
Title:
$36,000,000 CITIBANK, N.A.
By
Name:
Title:
$36,000,000 UNION BANK OF SWITZERLAND
By
Name:
Title:
By
Name:
Title:
$25,000,000 ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
$25,000,000 THE BANK OF NOVA SCOTIA
By
Name:
Title:
$25,000,000 CANADIAN IMPERIAL BANK OF COMMERCE
By
Name:
Title:
$25,000,000 BANK, N.A.
By
Name:
Title:
$10,000,000 FIRST NATIONAL BANK OF COMMERCE
By
Name:
Title:
$10,000,000 WHITNEY NATIONAL BANK
By
Name:
Title:
$300,000,000 TOTAL COMMITMENTS
<PAGE>
SCHEDULE I
ENTERGY CORPORATION
$300,000,000 Credit Agreement
Name of Bank
Domestic
Lending Office
Eurodollar
Lending Office
CD
Lending Office
ABN AMRO Bank N.V.
135 South LaSalle Street
Suite 711
Chicago, IL 60603
Attn: Peter D. Gaw/Kevin S. McFadden
Telephone: 312-904-2065 / 312-904-2131
Fax: 312-904-6387
135 South LaSalle Street
Suite 711
Chicago, IL 60603
Attn: Peter D. Gaw/Kevin S. McFadden
Telephone: 312-904-2065 / 312-904-2131
Fax: 312-904-6387
135 South LaSalle Street
Suite 711
Chicago, IL 60603
Attn: Peter D. Gaw/Kevin S. McFadden
Telephone: 312-904-2065 / 312-904-2131
Fax: 312-904-6387
Bank of America
National Trust & Savings Association
333 S. Beaudry Avenue
19th Floor
Los Angeles, CA 90017
Attn: Yolanda Harper
Telephone: 213-345-6536
Fax: 213-345-6550
333 S. Beaudry Avenue
19th Floor
Los Angeles, CA 90017
Attn: Yolanda Harper
Telephone: 213-345-6536
Fax: 213-345-6550
333 S. Beaudry Avenue
19th Floor
Los Angeles, CA 90017
Attn: Yolanda Harper
Telephone: 312-345-6536
Fax: 213-345-6550
The Bank of New York
1 Wall Street
New York, NY 10286
Attn: Dennis M. Pidherny/
Jo-Anne Evans
Telephone: 212-635-7547
Fax: 212-635-7923
1 Wall Street
New York, NY 10286
Attn: Dennis M. Pidherny/
Jo-Anne Evans
Telephone: 212-635-7547
Fax: 212-635-7923
1 Wall Street
New York, NY 10286
Attn: Dennis M.
Pidherny/
Jo-Anne Evans
Telephone: 212-635-7923
Fax: 212-635-7923
The Bank of Nova Scotia
600 Peachtree Street N.E.
Atlanta, GA 30308
Attn: F.C.H. Ashby
Telephone: 404-877-1500
Fax: 404-888-8998
600 Peachtree Street N.E.
Atlanta, GA 30308
Attn: F.C.H. Ashby
Telephone: 404-877-1500
Fax: 404-888-8998
600 Peachtree Street N.E.
Atlanta, GA 30308
Attn: F.C.H. Ashby
Telephone: 404-877-1500
Fax: 404-888-8998
CIBC, Inc.
2727 Paces Ferry Road
Two Paces West
Suite 1200
Atlanta, GA 30339
Attn: Debra Quintero
Telephone: 404-319-4823
Fax: 404-319-4950
2727 Paces Ferry Road
Two Paces West
Suite 1200
Atlanta, GA 30339
Attn: Debra Quintero
Telephone: 404-319-4823
Fax: 404-319-4950
2727 Paces Ferry Road
Two Paces West
Suite 1200
Atlanta, GA 30339
Attn: Debra Quintero
Telephone: 404-319-4823
Fax: 404-319-4950
Chemical Bank
270 Park Avenue
New York, NY 10017
Attn: John F. Gahebe
Telephone: 212-270-3531
Fax: 212-270-4711
270 Park Avenue
New York, NY 10017
Attn: John F. Gahebe
Telephone: 212-270-3531
Fax: 212-270-4711
270 Park Avenue
New York, NY 10017
Attn: John F. Gahebe
Telephone: 212-270-3531
Fax: 212-270-4711
Citibank
First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attn: J. Charles Freel, Jr.
Telephone: 504-561-1638
Fax: 504-561-1316
210 Baronne Street
New Orleans, LA 70112
Attn: J. Charles Freel, Jr.
Telephone: 504-561-1638
Fax: 504-561-1316
210 Baronne Street
New Orleans, LA 70112
Attn: J. Charles Freel. Jr.
Telephone: 504-561-1638
Fax: 504-561-1316
Mellon Bank, N.A.
Three Mellon Bank Center
Room 2332
Pittsburgh, PA 15259
Attn: Suzanne Cooke
Telephone: 412-236-0437
Fax: 412-236-2027
Three Mellon Bank Center
Room 2332
Pittsburgh, PA 15259
Attn: Suzanne Cooke
Telephone: 412-236-0437
Fax: 412-236-2027
Three Mellon Bank
Center
Room 2332
Pittsburgh, PA 15259
Attn: Suzanne Cooke
Telephone: 412-236-0437
Fax: 412-236-2027
Union Bank of Switzerland
299 Park Avenue
New York, NY 10171
Attn: Michael Flynn
Telephone: 212-821-3705
Fax: 212-821-3259
299 Park Avenue
New York, NY 10171
Attn: Michael Flynn
Telephone: 212-821-3705
Fax: 212-821-3259
299 Park Avenue
New York, NY 10171
Attn: Michael Flynn
Telephone: 212-821-3705
Fax: 212-821-3259
Whitney National Bank
228 St. Charles Avenue
New Orleans, LA 70130
Attn: Patricia E. Taylor
Telephone: 504-586-7208
Fax: 504-586-7383
228 St. Charles Avenue
New Orleans, LA 70130
Attn: David Damour
Telephone: 504-586-2479
Fax: 504-586-3502
228 St. Charles Avenue
New Orleans, LA 70130
Attn: David Damour
Telephone: 504-586-2479
Fax: 504-586-3502
<PAGE>
Schedule II
Guaranty Obligations
October 10, 1995
Entergy Operations, Inc.
1. Entergy Corporation ("Entergy")
entered into separate Guaranties, each dated as
of September 20, 1990, of the financial
obligations of Entergy Operations, Inc. ("EOI")
to Arkansas Power & Light Company ("AP&L"),
Louisiana Power & Light Company ("LP&L"), and
System Energy Resources, Inc. ("SERI"),
respectively, under EOI's Operating Agreements
with each such entity relating to EOI's
operational responsibility for each such
entity's nuclear generating facilities.
Entergy entered into a similar Guaranty, dated
as of December 31, 1993, guarantying EOI's
obligations under its Operating Agreement with
Gulf States Utilities Company ("GSU") with
respect to EOI's operational responsibility for
GSU's nuclear generating facilities. The
amount of such obligations guaranteed is
indeterminate.
2. Entergy is authorized by the Securities
and Exchange Commission ("SEC") under the
Public Utility Holding Company Act of 1935
("`35 Act") to guaranty EOI's obligations under
a line of credit not to exceed $15 million,
which line of credit and guaranty have not been
established as of the date of this Schedule.
Entergy Services, Inc.
3. Entergy has entered into Guaranty
Agreements, each dated as of December 1, 1994,
pursuant to which Entergy guaranties
obligations of Entergy Services, Inc. ("ESI")
to various banks in the respective amounts set
forth below, aggregating $70,000,000:
Bank Amount
Texas Commerce Bank National $12,000,000
Association
Whitney National Bank $12,000,000
Deposit Guaranty National Bank $10,000,000
Premier Bank, National $12,000,000
Association
Hibernia National Bank $12,000,000
First National Bank of Commerce $12,000,000
In addition, Entergy is authorized by the SEC
under the `35 Act to guaranty extensions of
credit by such banks and by Worthen Bank &
Trust Company and/or one or more other lenders
which, when added to the.amounts set forth
above, would total not more than $150,000,000.
4. Middle South Utilities, Inc., predecessor
of Entergy, pursuant to a Guaranty, dated
January 31, 1985, guaranteed for the benefit of
Steiner Real Estate Partners (Louisiana), a
California limited partnership, all sums
payable by Middle South Services, Inc. (now
ESI) under the Lease or the Construction
Agreement (as defined in said Guaranty),
relating to the Entergy System's computer
center located in the City of Gretna, Jefferson
Parish, Louisiana. As of the date hereof, the
nominal amount of the obligation guaranteed is
not more than $42 million, having a present
value of approximately $20 million.
5. Entergy, pursuant to a letter, dated
January 18, 1991, guaranteed for the benefit of
Comdisco, Inc., the performance by ESI of its
obligations under a Lease (as referred to in
said letter) relating to computer equipment
listed in Equipment Schedule No. CFAM-1 (also
as referred to in said letter). As of the date
hereof, the nominal amount of the obligation
guaranteed is not more than $7 million, having
a present value of approximately $6 million.
6. Middle South Utilities, Inc., predecessor
of Entergy, pursuant to a Guaranty, dated as of
May 1, 1980, guaranteed for the benefit of
Bluff Associates Limited Partnership, a
Connecticut limited partnership, all sums
payable by, and all obligations of, Middle
South Services, Inc. (now ESI) under a Lease
(as defined in said Guaranty) relating to the
Entergy System's Operation Center in Jefferson
County, Arkansas. As of the date hereof, the
nominal amount of the obligation guaranteed is
not more than $4 million, having a present
value of approximately $3 million.
7. Entergy, pursuant to a Continuing Lease
Guaranty, dated April 1, 1993, guaranteed for
the benefit of Poydras Plaza Venture, a
Louisiana general partnership, and the
Prudential Insurance Company of America, the
payment of all obligations of ESI under the
Lease (as defined in said Continuing Lease
Guaranty), relating to office space in New
Orleans, Louisiana. As of the date hereof, the
nominal amount of the obligation guaranteed is
not more than $77 million, having a present
value of approximately $37 million.
System Fuels, Inc.
8. Pursuant to a Guaranty Agreement,
dated as of December 16, 1975, Middle South
Utilities, Inc., predecessor of Entergy,
guaranteed the performance of the obligations
of System Fuels, Inc. ("SFI") under a certain
Bareboat Charter Party dated as of December 16,
1975 and amended as of October 14, 1976 (the
"Charter") among United States Trust Company of
New York ("U.S. Trust"), as Owner Trustee, and
SFI, as Charterer, relating to the lease by SFI
from U.S. Trust of certain tow boats and
barges. On April 13, 1989, SFI assigned all of
its right, title and interest under the Charter
to Ingram Ohio Barge Co. ("Ingram") and Ingram
assumed all of SFI's obligations under the
Charter. Concurrently therewith, Entergy and
Connecticut National Bank (successor in
interest to U.S. Trust) entered into Amendment
No. 1 to the Guaranty Agreement, pursuant to
which Entergy agreed to guarantee the
obligations of Ingram under the Charter to the
same extent as if Ingram had been designated
the original Charterer. As of the date hereof,
the nominal amount of the obligation guaranteed
is not more than $6 million, having a present
value of approximately $5 million.
9. Pursuant to a Bareboat Charter Party, dated
as ofSeptember 19, 1974, and amended as of
December 9, 1974 and February 24, 1975, among
Mellon Bank, N.A. ("Mellon"), as Owner Trustee,
SFI, as Charterer, and Middle South Utilities,
Inc., predecessor of Entergy, as Guarantor, SFI
leased from Mellon certain tow boats and
barges, and Entergy agreed to guarantee the
performance of SFI's obligations in connection
therewith. On April 13, 1989, SFI assigned all
of its right, title and interest under the
Bareboat Charter to Ingram and Ingram assumed
all of SFI's obligations under the Bareboat
Charter Party. Concurrently therewith, Mellon,
Ingram and Entergy entered into Amendment No. 3
to the Bareboat Charter Party pursuant to which
Entergy agreed to guarantee the obligations of
Ingram to the same extent as if Ingram had been
designated as the original Charterer. As of the
date hereof, the nominal amount of the
obligation guaranteed is not more than $4
million, having a present value of
approximately $3 million.
10. Middle South Utilities, Inc., predecessor
of Entergy, pursuant to Section 23 of Lease
Supplement No. 1, dated as of July 16, 1974,
between Unilease No. 10, Inc., as lessor, and
SFI, as lessee, guaranteed the performance by
SFI of all of its obligations under the Lease,
dated July 16, 1974, as supplemented by said
Lease Supplement No. 1, relating to oil storage
tanks at Waterford Power Station. As of the
date hereof, the nominal amount of the
obligation guaranteed is not more than $9
million, having a present value of
approximately $4 million.
11. Middle South Utilities, Inc., predecessor
toEntergy, pursuant to a Guaranty Agreement,
dated as of January 15, 1976, guaranteed for
the benefit of United States Trust Company of
New York, as Owner Trustee, the obligations of
SFI under the Participation Agreement, the
Lease, the Sublease, the Subordination and
Release, the Construction Contract, the
Conveyance, the Purchase and Construction
Contract Assignment, and the Lease Assignment
(as such terms are defined in the Guaranty
Agreement) relating to oil storage tanks at
Baxter Wilson Power Station. As of the date
hereof, the nominal amount of the obligation
guaranteed is not more than $14 million, having
a present value of approximately $10 million.
12. Entergy is authorized by the SEC under the
`35 Act to guaranty extensions of bank debt to
SFI up to a maximum amount of $30 million.
System Energy Resources, Inc.
13. Middle South Utilities, Inc.,
predecessor of Entergy, pursuant to a Guaranty,
dated as of February 24, 1989, guaranteed for
the benefit of River Fuel Funding Company #3,
Inc., performance by System Energy Resources,
Inc. ("SERI") of its obligations under the
Lease (as defined in said Guaranty) relating to
nuclear fuel for the Grand Gulf Nuclear Plant.
As of the date hereof the maximum amount of the
obligations which may be guaranteed is not more
than $100 million.
14. Entergy, pursuant to a Capital Funds
Agreement, dated June 21, 1974, as amended and
supplemented, agreed to provide SERI with
sufficient capital to (i) maintain SERI's
equity capital at an amount equal to a minimum
of 35% of its total capitalization (excluding
short-term debt), and (ii) permit the
continuation of commercial operation of Grand
Gulf 1 and pay in full all indebtedness for
borrowed money of SERI when due; and under
supplements to the Capital Funds Agreement
assigning SERI's rights as security for
specific debt of SERI, Entergy has agreed to
make cash capital contributions to enable SERI
to make payments on such debt (currently
outstanding and incurred in the future) when
due. The magnitude of such obligation of
Entergy is indeterminate.
<PAGE>
EXHIBIT A-1
FORM OF CONTRACT NOTE
U.S.$ Dated:_______________, 19__
FOR VALUE RECEIVED, the undersigned, ENTERGY
CORPORATION, a Delaware corporation (the
Borrower ), HEREBY PROMISES TO PAY to the order
of (the Lender ) for the account of its
Applicable Lending Office (such term and other
capitalized terms herein being used as defined
in the Credit Agreement referred to below) the
principal sum of U.S.$10,000,000 or, if less,
the aggregate principal amount of the Contract
Advances made by the Lender to the Borrower
pursuant to the Credit Agreement outstanding on
the Termination Date, payable on the
Termination Date.
The Borrower promises to pay interest on the
unpaid principal amount of each Contract
Advance from the date of such Contract Advance
until such principal amount is paid in full, at
such interest rates, and payable at such times,
as are specified in the Credit Agreement.
Both principal and interest are payable in
lawful money of the United States of America to
Citibank, N.A., as Agent, at 399 Park Avenue,
New York, New York 10043, in same day funds.
Each Contract Advance made by the Lender to the
Borrower pursuant to the Credit Agreement, and
all payments made on account of principal
thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the
grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Contract
Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, dated as of
, 1995 (the Credit Agreement ), among the
Borrower, the Lender and certain other banks
parties thereto, and Citibank, N.A., as Agent
for the Lender and such other banks. The
Credit Agreement, among other things, (i)
provides for the making of Contract Advances by
the Lender to the Borrower from time to time in
an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower
resulting from each such Contract Advance being
evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the
maturity hereof upon the happening of certain
stated events and also for prepayments on
account of principal hereof prior to the
maturity hereof upon the terms and conditions
therein specified.
The Borrower hereby waives presentment, demand,
protest and notice of any kind. No failure to
exercise, and no delay in exercising, any
rights hereunder on the part of the holder
hereof shall operate as a waiver of such
rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
ENTERGY CORPORATION
By_______________________________
Name:
Title:
ADVANCES, MATURITIES AND PAYMENTS OF PRINCIPAL
Date
Amount of
Advance
Interest
Period
(if any) of
Advance
Principal
Paid or
Prepaid
Amount of
Unpaid
Principal
Balance
Notation
Made By
<PAGE>
EXHIBIT A-2
FORM OF AUCTION NOTE
U.S.$______________ Dated: __________, 19__
FOR VALUE RECEIVED, the undersigned, ENTERGY
CORPORATION, a Delaware corporation (the
Borrower ), HEREBY PROMISES TO PAY to the
order of (the
Lender ) for the account of its Applicable
Lending Office (as defined in the Credit
Agreement referred to below), on ,
19 , the principal amount of
Dollars ($ ).
The Borrower promises to pay interest on the
unpaid principal amount hereof from the date
hereof until such principal amount is paid
in full, at the interest rate and payable on
the interest payment date or dates provided
below:
[Interest Rate: ____% per annum] [or]
[Description of Interest
Rate Basis and Margin] (calculated on the
basis of a year of ____ days for the actual
number of days elapsed).
Interest Payment Date or Dates: __________
Prepayment terms:______________________
Both principal and interest are payable in
lawful money of the United States of America
to or the account of the
Lender at the office of Citibank, N.A., as
Agent, at 399 Park Avenue, New York, New
York 10043, in same day funds, free and
clear of and without any deduction, with
respect to the payee named above, for any
and all present and future taxes,
deductions, charges or withholdings, and all
liabilities with respect thereto to the
extent and in the manner provided in the
Credit Agreement.
This Promissory Note is one of the Auction
Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, dated as
of __________ ___, 1995 (the Credit
Agreement ), among the Borrower, the Lender
and certain other banks parties thereto, and
Citibank, N.A., as Agent for the Lender and
such other banks. The Credit Agreement,
among other things, contains provisions for
acceleration of the maturity hereof upon the
happening of certain stated events.
The Borrower hereby waives presentment,
demand, protest and notice of any kind. No
failure to exercise, and no delay in
exercising, any rights hereunder on the part
of the holder hereof shall operate as a
waiver of such rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
ENTERGY CORPORATION
By_______________________________
Name:
Title:
<PAGE>
EXHIBIT B-1
FORM OF NOTICE OF CONTRACT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers
to the Credit Agreement, dated as of
__________ ___, 1995 (the Credit Agreement
, the terms defined therein being used
herein as therein defined), among the
undersigned, certain Lenders parties thereto
and Citibank, N.A., as Agent for said
Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby
requests a Contract Borrowing under the
Credit Agreement, and in that connection
sets forth below the information relating to
such Contract Borrowing (the Proposed
Contract Borrowing ) as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed
Contract Borrowing is , 19 .
(ii) The Type of Contract Advances to be
made in connection with the Proposed
Contract Borrowing is [Adjusted CD Rate
Advances] [Base Rate Advances] [Eurodollar
Rate Advances].
(iii) The aggregate amount of the Proposed
Contract Borrowing is $
(iv) The Interest Period for each Contract
Advance made as part of the Proposed
Contract Borrowing is [ days] [
month[s]]. The undersigned hereby
certifies that the following statements
are true on the date hereof, and will be
true on the date of the Proposed Contract
Borrowing:
(A) the representations and
warranties contained in Section 4.01
of the Credit Agreement are correct,
before and after giving effect to the
Proposed Contract Borrowing and to the
application of the proceeds therefrom,
as though made on and as of such date;
and
(B) no event has occurred and is
continuing, or would result from such
Proposed Contract Borrowing or from
the application of the proceeds
therefrom, that constitutes a
Prepayment Event or an Event of
Default or would constitute an Event
of Default but for the requirement
that notice be given or time elapse or
both.
Very truly yours,
ENTERGY
CORPORATION
By____________________
Name:
Title:
<PAGE>
EXHIBIT B-2
FORM OF NOTICE OF AUCTION BORROWING
Citibank, N.A., as Agent for the Lenders parties
to the Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers
to the Credit Agreement, dated __________
___, 1995 (the Credit Agreement , the terms
defined therein being used herein as therein
defined), among the undersigned, certain
Lenders parties thereto and Citibank, N.A.,
as Agent for said Lenders, and hereby gives
you notice pursuant to Section 2.03 of the
Credit Agreement that the undersigned hereby
requests an Auction Borrowing under the
Credit Agreement, and in that connection
sets forth the terms on which such Auction
Borrowing (the Proposed Auction Borrowing )
is requested to be made:
(A) Date of Auction Borrowing
(B) Amount of Auction Borrowing
(C) Maturity Date
(D) Interest Rate Basis and Margin
(E) Interest Computation Basis
(F) Interest Payment Date(s)
(G) Prepayment
(H)
(I)
The undersigned hereby certifies that the
following statements are true on the date
hereof, and will be true on the date of the
Proposed Auction Borrowing:
(a) the representations and warranties
contained in Section 4.01 of the Credit
Agreement are correct, before and after
giving effect to the Proposed Auction
Borrowing and to the application of the
proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is
continuing, or would result from the
Proposed Auction Borrowing or from the
application of the proceeds therefrom,
that constitutes a Prepayment Event or
an Event of Default or would constitute
an Event of Default but for the
requirement that notice be given or
time elapse or both; and
(c) the aggregate amount of the
Proposed Auction Borrowing and all
other Borrowings to be made on the same
day under the Credit Agreement is
within the aggregate amount of the
unused Commitments of the Lenders.
The undersigned hereby confirms that the
Proposed Auction Borrowing is to be made
available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
ENTERGY CORPORATION
By_______________________________
Name:
Title:
<PAGE>
EXHIBIT B-3
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Agent for the Lenders parties
to the Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers
to the Credit Agreement, dated as of
, 1995 (the Credit Agreement , the terms
defined therein being used herein as therein
defined), among the undersigned, certain
Lenders party thereto and Citibank, N.A., as
Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section
2.10 of the Credit Agreement, that the
undersigned hereby requests a Conversion
under the Credit Agreement, and in that
connection sets forth below the information
relating to such Conversion (the Proposed
Conversion ) as required by Section 2.10 of
the Credit Agreement:
(i) The Business Day of the Proposed
Conversion is
__________, _____.
(ii) The Type of Advances comprising the
Proposed Conversion is [Adjusted CD Rate
Advances] [Base Rate Advances] [Eurodollar
Rate Advances].
(iii) The aggregate amount of the Proposed
Conversion is
$__________.
(iv) The Type of Advances to which such
Advances are proposed to be Converted is
[Adjusted CD Rate Advances] [Base Rate
Advances] [Eurodollar Rate Advances].
(v) The Interest Period for each Advance
made as part of the Proposed Conversion is
[ days] [ month(s)].
The undersigned hereby represents and
warrants that the following statements are
true on the date hereof, and will be true on
the date of the Proposed Conversion:
(A) The Borrower's request for the
Proposed Conversion is made in compliance
with Section 2.10 of the Credit Agreement;
and
(B) The statements contained in Section
3.02 of the Credit Agreement are true.
Very truly yours,
ENTERGY CORPORATION
By
Title:
<PAGE>
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ___________, 19__
Reference is made to the Credit Agreement,
dated as of __________ ___, 1995 (as
amended, modified or supplemented from time
to time, the Credit Agreement ), among
Entergy Corporation, a
corporation (the Borrower ), the Lenders
(as defined in the Credit Agreement) and
Citibank, N.A., as Agent for the Lenders
(the Agent ). Terms defined in the Credit
Agreement are used herein with the same
meaning.
(the Assignor ) and (the
Assignee ) agree as follows:
1.The Assignor hereby sells and assigns to
the Assignee without recourse, and the
Assignee hereby purchases and assumes from
the Assignor, that interest in and to all
of the Assignor's rights and obligations
under the Credit Agreement as of the date
hereof (other than in respect of Auction
Advances and Auction Notes) which
represents the percentage interest
specified on Schedule 1 of all outstanding
rights and obligations under the Credit
Agreement (other than in respect of
Auction Advances and Auction Notes),
including, without limitation, such
interest in the Assignor's Commitment, the
Contract Advances owing to the Assignor,
and the Contract Note[s] held by the
Assignor. After giving effect to such
sale and assignment, the Assignee's
Commitment and the amount of the Contract
Advances owing to the Assignee will be as
set forth in Section 2 of Schedule 1.
2.The Assignor (i) represents and warrants
that it is the legal and beneficial owner
of the interest being assigned by it
hereunder and that such interest is free
and clear of any adverse claim; (ii) makes
no representation or warranty and assumes
no responsibility with respect to any
statements, warranties or representations
made in or in connection with the Credit
Agreement or the execution, legality,
validity, enforceability, genuineness,
sufficiency or value of the Credit
Agreement or any other instrument or
document furnished pursuant thereto; (iii)
makes no representation or warranty and
assumes no responsibility with respect to
the financial condition of the Borrower or
the performance or observance by the
Borrower of any of its obligations under
the Credit Agreement or any other
instrument or document furnished pursuant
thereto; and (iv) attaches the Contract
Note[s] referred to in paragraph 1 above
and requests that the Agent exchange such
Contract Note[s] for a new Contract Note
payable to the order of the Assignee in an
amount equal to the Commitment assumed by
the Assignee pursuant hereto or new
Contract Notes payable to the order of the
Assignee in an amount equal to the
Commitment assumed by the Assignee
pursuant hereto and the Assignor in an
amount equal to the Commitment retained by
the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1
hereto. Except as specified in this
Section 2, the assignment hereunder shall
be without recourse to the Assignor.
3.The Assignee (i) confirms that it has
received a copy of the Credit Agreement,
together with copies of the financial
statements referred to in Section 4.01
thereof and such other documents and
information as it has deemed appropriate
to make its own credit analysis and
decision to enter into this Assignment and
Acceptance; (ii) agrees that it will,
independently and without reliance upon
the Agent, the Assignor or any other
Lender and based on such documents and
information as it shall deem appropriate
at the time, continue to make its own
credit decisions in taking or not taking
action under the Credit Agreement; (iii)
appoints and authorizes the Agent to take
such action as agent on its behalf and to
exercise such powers under the Credit
Agreement as are delegated to the Agent by
the terms thereof, together with such
powers as are reasonably incidental
thereto; (iv) agrees that it will perform
in accordance with their terms all of the
obligations which by the terms of the
Credit Agreement are required to be
performed by it as a Lender; [and] (v)
specifies as its CD Lending Office,
Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the
offices set forth beneath its name on the
signature pages hereof [and (vi) attaches
the forms prescribed by the Internal
Revenue Service of the United States
certifying that it is exempt from United
States withholding taxes with respect to
all payments to be made to the Assignee
under the Credit Agreement and the Notes].
4.Following the execution of this Assignment
and Acceptance by the
Assignor and the Assignee, it will be
delivered to the Agent for acceptance and
recording by the Agent. The effective
date of this Assignment and Acceptance
shall be the date of acceptance thereof by
the Agent, unless otherwise specified on
Schedule 1 hereto (the Effective Date );
provided, however, that in no event shall
this Assignment and Acceptance become
effective prior to the payment for the
processing and recordation fee to the
Agent as provided in Section 8.07(a) of
the Credit Agreement.
5.Upon such acceptance and recording by the
Agent, as of the
Effective Date, (i) the Assignee shall be
a party to the Credit Agreement and, to
the extent provided in this Assignment and
Acceptance, have the rights and
obligations of a Lender thereunder and
(ii) the Assignor shall, to the extent
provided in this Assignment and
Acceptance, relinquish its rights and be
released from its obligations under the
Credit Agreement.
6.Upon such acceptance and recording by the
Agent, from and after the Effective Date,
the Agent shall make all payments under
the Credit Agreement and the Contract
Notes in respect of the interest assigned
hereby (including, without limitation, all
payments of principal, interest and
commitment fees with respect thereto) to
the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in
payments under the Credit Agreement and
the Contract Notes for periods prior to
the Effective Date directly between
themselves.
7.THIS ASSIGNMENT AND ACCEPTANCE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
8.This Assignment and Acceptance may be
signed in any number of counterparts, each
of which shall be deemed an original, with
the same effect as if the signatures
thereto and hereto were up on the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Assignment and Acceptance to be
executed by their respective officers thereunto
duly authorized, as of the date first above
written, such execution being made on Schedule
1 hereto.
[NAME OF ASSIGNOR]
By
Name:
Title:
[NAME OF ASSIGNEE]
By
Name:
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ______ day of____________________ , 19__
CITIBANK, N.A., as Agent
By
Name:
Title:
<PAGE>
Schedule 1
to
Assignment and Acceptance
Dated __________, 19__
Section 1.
Percentage Interest:
%
Section 2.
Assignee's Commitment:
$
Aggregate Outstanding Principal
Amount of Contract Advances owing to the
Assignee: $
A Contract Note payable to the order of the
Assignee
Dated:_________, 19__
Principal amount: $
[A Contract Note payable to the order of the
Assignor
Dated:_________, 19__
Principal amount: $ ]
Section 3.
Effective Date: _________, 19__
<PAGE>
EXHIBIT D
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[Date]
To each of the Lenders parties to the
Credit Agreement referred to on the
Signature Page Hereof and to
Citibank, N.A., as Agent
Entergy Corporation
Ladies and Gentlemen:
I have acted as counsel to Entergy
Corporation, a Delaware corporation (the
Borrower ), in connection with the
preparation, execution and delivery of the
Credit Agreement, dated as of October ___,
1995, by and among the Borrower, the Banks
parties thereto and the other Lenders from
time to time parties thereto and Citibank,
N.A., as Agent. This opinion is furnished
to you at the request of the Borrower
pursuant to 3.01(a)(v) of the Credit
Agreement. Unless otherwise defined herein
or unless the context otherwise requires,
terms defined in the Credit Agreement are
used herein as therein defined.
In such capacity, I have examined:
(a) Counterparts of the Credit Agreement,
executed by the Borrower;
(b) The Contract Notes, executed by the
Borrower;
(c) The form of the Auction Notes to be
executed and delivered by the Borrower in
connection with Auction Borrowings;
(d) The Certificate of Incorporation of
the Borrower (the Charter );
(e) The Bylaws of the Borrower (the
Bylaws );
(f) A certificate of the Secretary of
State of the State of Delaware, dated
__________, 1995, attesting to the
continued corporate existence and good
standing of the Borrower in that State;
(g) A Certificate of the Secretary of
State of the State of Louisiana, dated
__________, 1995, attesting that the
Borrower is a foreign corporation duly
qualified to conduct business in that
state;
(h) A copy of the Order dated July 27,
1995, of the Securities and Exchange
Commission (File No. 70-8149) under the
Public Utility Holding Company Act of 1935
(the SEC
Order ); and
(i) The other documents furnished by the
Borrower to the Agent pursuant to Section
3.01(a) of the Credit Agreement.
I have also examined such other corporate
records of the Borrower, certificates of
public officials and of officers of the
Borrower, and agreements, instruments and
other documents, as I have deemed necessary
as a basis for the opinions expressed below.
In my examination, I have assumed the
genuineness of all signatures, the legal
capacity of natural persons, the
authenticity of all documents submitted to
me as originals, and the conformity with the
originals of all documents submitted to me
as copies. In making my examination of
documents and instruments executed or to be
executed by persons other than the Borrower,
I have assumed that each such other person
had the requisite power and authority to
enter into and perform fully its obligations
thereunder, the due authorization by each
such other person for the execution,
delivery and performance thereof and the due
execution and delivery thereof by or on
behalf of such person of each such document
and instrument. In the case of any such
person that is not a natural person, I have
also assumed, insofar as it is relevant to
the opinions set forth below, that each such
other person is duly organized, validly
existing and in good standing under the laws
of the jurisdiction in which it was created,
and is duly qualified and in good standing
in each other jurisdiction where the failure
to be so qualified could reasonably be
expected to have a material effect upon its
ability to execute, deliver and/or perform
its obligations under any such document or
instrument. I have further assumed that
each document, instrument, agreement, record
and certificate reviewed by me for purposes
of rendering the opinions expressed below
has not been amended by any oral agreement,
conduct or course of dealing between the
parties thereto.
As to questions of fact material to the
opinions expressed herein, I have relied
upon certificates and representations of
officers of the Borrower (including but not
limited to those contained in the Credit
Agreement and certificates delivered upon
the execution and delivery of the Credit
Agreement) and of appropriate public
officials, without independent verification
of such matters except as otherwise
described herein.
Whenever my opinions herein with respect to
the existence or absence of facts are stated
to be to my knowledge or awareness, it is
intended to signify that no information has
come to my attention or the attention of
other counsel working under my direction in
connection with the preparation of this
opinion letter that would give me or them
actual knowledge of the existence or absence
of such facts. However, except to the
extent expressly set forth herein, neither I
nor they have undertaken any independent
investigation to determine the existence or
absence of such facts, and no inference as
to my or their knowledge of the existence or
absence of such facts should be assumed.
On the basis of the foregoing, having regard
for such legal consideration as I deem
relevant, and subject to the other
limitations and qualifications contained in
this letter, I am of the opinion that:
1.The Borrower is a corporation duly
organized, validly existing and in good
standing under the laws of the State of
Delaware and is duly qualified to do
business as a foreign corporation in each
jurisdiction in which the nature of the
business conducted or the property owned,
operated or leased by it requires such
qualification.
2.The execution, delivery and performance by
the Borrower of the
Credit Agreement and the Notes are within
the Borrower s corporate powers, have been
duly authorized by all necessary corporate
action ad do not contravene (i) the
Charter or the Bylaws or (ii) law or (iii)
any contractual or legal restriction
binding on or affecting the Borrower. The
Credit Agreement and the Contract Notes
have been duly executed and delivered on
behalf of the Borrower. When completed in
the form thereof attached as Exhibit A-2
to the Credit Agreement, and executed by
an authorized officer of the Borrower and
delivered on behalf of the Borrower, each
Auction Note will have been duly executed
and delivered by the Borrower.
3.No authorization, approval or other action
by, and no notice to or filing with, any
governmental authority or regulatory body
is required for the due execution,
delivery and performance by the Borrower
of the Credit Agreement and the Notes,
except for the SEC Order, which has been
obtained, is final and in full force and
effect, and is not the subject of any
appeal.
4.Except as disclosed in the Borrower s
Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, and in the
Borrower s Quarterly Report on Form 10-Q
for the period ended June 30, 1995, there
is no pending or, to the best of my
knowledge, threatened action or proceeding
affecting the Borrower or any of its
subsidiaries before any court,
governmental agency or arbitrator that
reasonably could be expected to affect
materially and adversely the condition
(financial or otherwise), operations,
business, properties or prospects of the
Borrower or its ability to perform its
obligations under the Credit Agreement or
any Note, or that purports to affect the
legality, validity, binding effect or
enforceability of the Credit Agreement or
any Note. To the best of my knowledge,
after inquiry, there has been no change in
any matter disclosed in such filings that
reasonably could be expected to result in
such a material adverse effect.
5.The Borrower is no an investment company
or a company controlled by an investment
company , within the meaning of the
Investment Company Act of 1940, as
amended, or an investment adviser within
the meaning of the Investment Advisers Act
of 1940, as amended.
6.The Credit Agreement and the Contract
Notes constitute, and the
Auction Notes, when completed in the form
thereof attached as Exhibit A-2 to the
Credit Agreement and executed by an
authorized officer of the Borrower and
delivered on behalf of the Borrower in
accordance with the terms of the Credit
Agreement, will constitute, the legal,
valid and binding obligations of the
Borrower enforceable against the Borrower
in accordance with their respective terms.
My opinions above are subject to the
following qualifications:
(a) My opinions are subject, as to
enforceability, to (i) bankruptcy,
insolvency, reorganization, moratorium
and other similar laws affecting
creditors rights generally and (ii) the
application of general principles of
equity, including but not limited to
the right to have specific performance
of contract obligations, regardless of
whether considered in a proceeding in
equity or at law.
(b) My opinion in paragraph 1 above,
insofar as it relates to the due
incorporation, valid existence and good
standing of the Borrower under Delaware
law, is given exclusively in reliance
upon a certification of the Secretary
of State of Delaware, upon which I
believe I am justified in relying. A
copy of such certification has been
provided to you.
(c) My opinion set forth in paragraph
3 above as to the obtaining of
necessary governmental and regulatory
approvals is based solely upon a review
of those laws that, in my experience,
are normally applicable to the Borrower
in connection with transactions of the
type contemplated by the Credit
Agreement.
(d) My opinion in paragraph 6 above as
to the legality, validity, binding
nature and enforceability of the Credit
Agreement and the Notes is given in
reliance upon a legal opinion of even
date herewith of Reid & Priest, LLP,
New York counsel to the Borrower, and
is subject to the assumptions,
limitations and qualifications
contained therein. A copy of the legal
opinion of Reid & Priest, LLP, is being
provided to you contemporaneously
herewith.
Notwithstanding the qualifications set forth
above, I have no actual knowledge of any
matter within the scope of said
qualifications that would cause me to change
the opinions set forth in this letter.
I am licensed to practice law only in the
States of Louisiana and Texas and the
Commonwealth of Virginia and, except as
otherwise provided herein, my role as
counsel to the Company is limited to matters
involving the laws of the State of Louisiana
and the federal laws of the United States of
America. Except to the extent otherwise
expressly set forth herein, and except with
respect to matters governed by the General
Corporation Law of Delaware, I render no
opinion on the laws of any other
jurisdiction or any subdivision thereof, and
have made no independent investigation into
any such laws except as specifically
provided herein.
My opinions are expressed as of the date
hereof, and I do not assume any obligation
to update or supplement my opinions to
reflect any fact or circumstance that
hereafter comes to my attention, or any
change in law that hereafter occurs.
This opinion letter is being provided
exclusively to and for the benefit of the
addressees hereof. It is not to be
furnished to or relied upon by any other
party for any other purpose, without prior
express written authorization from us,
except that (i) Reid & Priest may rely
hereon in connection with their opinion to
you of even date herewith on behalf of the
Borrower as to matters of New York law, (ii)
King & Spalding hereby is authorized to rely
on this letter in the rendering of their
opinion to the Lenders dated as of the date
hereof; and any addressee of this letter may
deliver a copy hereof to any person that
becomes a Lender under the Credit Agreement
after the date hereof, and such person may
rely on this opinion as if it had been
addressed and delivered to it on the date
hereof as an original Bank that was a party
to the Credit Agreement.
Very truly yours,
Laurence M. Hamric
Bank Addressees:
ABN AMRO BANK, N.A.
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
CIBC, INC.
CHEMICAL BANK CITIBANK, N.A.
FIRST NATIONAL BANK OF COMMERCE MELLON BANK,
N.A.
UNION BANK OF SWITZERLAND
WHITNEY NATIONAL BANK
<PAGE>
EXHIBIT E
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE AGENT
[Date]
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Agent
Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to
Citibank, N.A., individually and as Agent,
in connection with the preparation,
execution and delivery of the Credit
Agreement, dated as of
, 1995 (the Credit Agreement ), among
Entergy Corporation, the Banks parties
thereto and Citibank, N.A., as Agent. Terms
defined in the Credit Agreement are used
herein as therein defined.
In this connection, we have examined the
following documents:
1.a counterpart of the Credit Agreement,
executed by the parties thereto;
2.the Contract Notes to the order of each
Bank;
3.the form of the Auction Notes, attached as
Exhibit A-2 to the Credit Agreement, to be
executed and delivered by the Borrower in
connection with any Auction Borrowing; and
4.the other documents furnished to the Agent
pursuant to Section 3.01(a) of the Credit
Agreement, including (without limitation)
the opinion (the Opinion ) of Laurence M.
Hamric, counsel to the Borrower.
In our examination of the documents referred
to above, we have assumed the authenticity
of all such documents submitted to us as
originals, the genuineness of all
signatures, the due authority of the parties
executing such documents and the conformity
to the originals of all such documents
submitted to us as copies. We have also
assumed that you have independently
evaluated, and are satisfied with, the
creditworthiness of the Borrower and the
business terms reflected in the Credit
Agreement. We have relied, as to factual
matters, on the documents we have examined.
To the extent that our opinions expressed
below involve conclusions as to matters
governed by law other than the law of the
State of New York, we have relied upon the
Opinion and have assumed without independent
investigation the correctness of the matters
set forth therein, our opinions expressed
below being subject to the assumptions,
qualifications and limitations set forth in
the Opinion.
Based upon and subject to the foregoing, and
subject to the qualifications set forth
below, we are of the opinion that the Credit
Agreement and the Contract Notes are, and
upon their completion, execution and
delivery in accordance with the terms of the
Credit Agreement, the Auction Notes will be,
the legal, valid and binding obligations of
the Borrower, enforceable against the
Borrower in accordance with their respective
terms.
Our opinion is subject to the following
qualifications:
(a)
The enforceability of the Borrower's
obligations under the Credit Agreement and
the Notes is subject to the effect of any
applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium or similar law affecting
creditors' rights generally.
(b) The enforceability of the Borrower's
obligations under the Credit Agreement and
the Notes is subject to the effect of
general principles of equity, including
(without limitation) concepts of
materiality, reasonableness, good faith
and fair dealing (regardless of whether
considered in a proceeding in equity or at
law). Such principles of equity are of
general application, and, in applying such
principles, a court, among other things,
might not allow a contracting party to
exercise remedies in respect of a default
deemed immaterial, or might decline to
order an obligor to perform covenants.
(c) We note further that, in addition to
the application of equitable principles
described above, courts have imposed an
obligation on contracting parties to act
reasonably and in good faith in the
exercise of their contractual rights and
remedies, and may also apply public policy
considerations in limiting the right of
parties seeking to obtain indemnification
under circumstances where the conduct of
such parties is determined to have
constituted negligence.
(d) We express no opinion herein as to
(i) Section 8.05 of the Credit
Agreement, (ii) the enforceability of
provisions purporting to grant to a party
conclusive rights of determination, (iii)
the availability of specific performance
or other equitable remedies, (iv) the
enforceability of rights to indemnity
under federal or state securities laws or
(v) the enforceability of waivers by
parties of their respective rights and
remedies under law.
(e) Our opinions expressed above are
limited to the law of the State of
New York, and we do not express any
opinion herein concerning any other law.
The foregoing opinion is solely for your
benefit and may not be relied upon by any
other person or entity, other than any
Person that may become a Lender under the
Credit Agreement after the date hereof.
Very truly yours,
MEO:PKS
EXHIBIT F
[Letterhead of Reid & Priest LLP]
New York, New York
October 20, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are familiar with (A) the Declaration on Form U-1
(File No. 70-8149), as amended, filed with the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, as amended, by Entergy Corporation ("Entergy")
contemplating the proposed borrowings by Entergy from time to
time pursuant to a credit agreement with various banks, (B) the
Securities and Exchange Commission's Order, dated July 27, 1995,
permitting to become effective the Declaration, as amended, with
respect to the foregoing matters, and (C) the subsequent
execution by Entergy of the Credit Agreement, dated as of October
10, 1995, among Entergy, the Banks named therein and Citibank,
N.A., as Agent and the issuance by Entergy of promissory notes
("Notes") in connection therewith (the "Transactions"). We are
counsel for Entergy and are of the opinion that:
(1) Entergy is a corporation duly organized and validly
existing under the laws of the State of Delaware.
(2)
(2) The Transactions have been consummated in accordance with
the Declaration, as amended, and the Order of the Securities and
Exchange Commission with respect thereto.
(3) All state laws that relate or are applicable to
the participation by Entergy in the Transactions have been
complied with.
(4) The Notes are valid and binding obligations of
Entergy enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally.
(5) The consummation of the Transactions by Entergy
has not violated the legal rights of the holders of any
securities issued by Entergy 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, although
we have made a study of the laws of other states insofar as they
are involved in the conclusions stated herein.
Our consent is hereby given to the filing of this
opinion as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ REID & PRIEST LLP
REID & PRIEST LLP
