SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1995
Filed Pursuant to the
Public Utility Holding Company Act of 1935
by
ENTERGY CORPORATION
639 Loyola Avenue
New Orleans, Louisiana 70113
<PAGE>
TABLE OF CONTENTS
PAGE
ITEM TITLE NUMBER
1 System Companies and Investments Therein
as of December 31, 1995 1
2 Acquisitions or Sales of Utility Assets 5
3 Issue, Sale, Pledge, Guarantee or Assumption
of System Securities 5
4 Acquisition, Redemption or Retirement of
System Securities 6
5 Investments in Securities of Non-System Companies 8
6 Officers and Directors 10
7 Contributions and Public Relations 43
8 Service, Sales and Construction Contracts 46
9 Wholesale Generators and Foreign Utility Companies 49
10 Financial Statements and Exhibits 51
Signature 72
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ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995
<S> <C> <C> <C> <C>
% of Issuer Owner's
Name of Company (1) Number of Common Voting Book Book
(and abbreviations used herein) Shares Owned Power Value Value
---------------------------------------------- ------------ ------- --------- ----------
(000s) (000s)
Entergy Corporation (2,7,8,9)
Arkansas Power & Light Company (AP&L) (2,3,4,10) 46,980,196 100 $1,083,700 $1,083,700
The Arklahoma Corporation (ARKCO) (4) 170 34 $ 121 $ 121
Louisiana Power & Light Company (LP&L) (2,3,10) 165,173,180 100 $1,156,214 $1,156,214
Mississippi Power & Light Company (MP&L) (2,3,10) 8,666,357 100 $430,571 $430,571
Jackson Gas Light Company (5) 360 100 $ - $ -
Jackson Light and Traction Company (5) 75 100 $ - $ -
The Light, Heat and Water Company of Jackson, 75 100 $ - $ -
Mississippi (5)
New Orleans Public Service Inc. (NOPSI) (2,3,10) 8,435,900 100 $151,311 $151,311
System Energy Resources, Inc. (System Energy) (2) 789,350 100 $875,277 $875,277
Entergy Services, Inc. (Entergy Services) (2) 2,000 100 $ 20 $ 20
Entergy Enterprises, Inc.(Entergy Enterprises) 54,400 100 $112,013 $112,013
Entergy Systems and Service, Inc. 13,500 100 $ 91,795 $ 91,795
Entergy Operations, Inc.(EOI or Entergy 1,000 100 $ 1,000 $ 1,000
Operations) (2)
Entergy Power, Inc. (EPI or Entergy Power) 11,000 100 $172,234 $172,234
Entergy S. A. 29,999 100 $ 11,391 $ 11,391
Entergy Argentina S. A. 29,999 100 $ 17,366 $ 17,366
Entergy Power Edesur Holding, LTD (6) 3,516 29 $ 17,119 $ 17,119
Entergy Argentina S. A., Ltd. 99 100 $ 42,055 $ 42,055
Entergy Power Edesur Holding, LTD (6) 8484 71 $ 41,102 $ 41,102
Entergy Power Development Corporation(Entergy 62,100 100 $180,621 $180,621
Power Development) (6,8)
Entergy Richmond Power Corporation (Entergy 13,500 100 $ 9,406 $ 9,406
Richmond Power) (6)
Entergy Pakistan, Ltd. (6) 500 100 $ 50,590 $ 50,590
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<S> <C> <C> <C> <C>
Number of % of
Name of Company (1) Common Shares Voting Issuer Book Owner's Book
(and abbreviations used herein) Owned Power Value Value
--------------------------------------------- ------------ ------- --------- ----------
(000s) (000s)
Entergy Power Asia, Ltd. (6) 5,000 100 $ 5,252 $ 5,252
Entergy Power Holding I, LTD (6) 1 100 $ 3,733 $ 3,733
Entergy Power C.B.A. Holding, LTD (6) 12,000 100 $ 3,674 $ 3,674
Entergy Power Edegel, Inc. (6) 1,000 100 $100,000 $100,000
Entergy Transener S.A. (6) 11,999 100 $ 18,976 $ 18,976
Gulf States Utilities Company (GSU) (2,10) 100 100 $1,624,264 $2,095,954
Varibus Corporation (Varibus) 100,000 100 $ 20,903 $ 20,903
Prudential Oil and Gas, Inc. (POG) 11,537 100 $ 4,483 $ 4,483
Southern Gulf Railway Company (Southern Gulf) 1,000 100 $ 42) $ (42)
GSG&T Inc. (GSG&T) 25,000 100 $ 9,271 $ 9,271
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<PAGE>
NOTES
(1) Pursuant to the General Instructions to Form U5S, the
companies listed in the table, together with System Fuels,
Inc. (SFI or System Fuels), are collectively defined herein
as "System Companies" and individually as a "System
Company".
(2) During 1995, Entergy Corporation, Entergy Services, AP&L,
GSU, LP&L, MP&L, NOPSI, System Fuels, System Energy, and
Entergy Operations participated in a joint money pool
arrangement whereby those companies with available funds
made short-term loans to certain other companies in the
Entergy System having short-term borrowing requirements. As
of December 31, 1995, Entergy Corporation, AP&L, GSU, MP&L,
and NOPSI had total investments in the money pool in the
amounts of $129,118,695, $4,018,469, $205,036,334,
$14,371,175 and $48,053,290, respectively, of which
$29,180,000, $908,000, $46,336,000, $3,248,000, and
$10,860,000 were borrowed by System Companies. Entergy
Services, LP&L, System Fuels, System Energy, and Entergy
Operations had total (borrowings) in the money pool in the
amounts of ($10,545,228), ($61,459,002), ($9,757,512),
($2,990,265) and ($5,779,521), respectively. The unborrowed
balance in the money pool amounted to $310,065,963 as of
December 31, 1995, and was invested in high quality
commercial paper and certificates of deposit.
(3) The percentage ownership of System Fuels' common stock is
held as follows: 35% by AP&L, 33% by LP&L, 19% by MP&L and
13% by NOPSI. The numbers of common shares owned and the
book values to both the issuer and owners are as follows:
AP&L, 70 shares -$7,000; LP&L, 66 shares - $6,600; MP&L, 38
shares - $3,800; and NOPSI, 26 shares - $2,600. Under a
loan agreement, System Fuels had borrowings outstanding from
its parent companies to finance its fuel supply business.
As of December 31, 1995, loans to System Fuels from its
parent companies were as follows: AP&L, $10,994,000; LP&L,
$14,223,000; MP&L, $5,527,000; and NOPSI, $3,256,000. The
loans bear interest at rates approximating the prime rate
with a maturity date of December 31, 2008.
(4) The Capital Stock of ARKCO is owned in the proportions of
34%, 34% and 32%, respectively, by AP&L, Oklahoma Gas and
Electric Company and Southwestern Electric Power Company.
ARKCO owns an electric transmission line that is leased to
these three companies. Information covering ARKCO is
included herein pursuant to the instructions for Form U5S.
AP&L is exempted from holding company status under the
Public Utility Holding Company Act of 1935 ("Act") (except
with regard to section 9(a)(2) of the Act) pursuant to the
provisions of Reg. 250.2(a)(2).
(5) Inactive companies held to preserve franchises.
(6) See Items 5 and 9 and Exhibits H and I for information
regarding direct and indirect holdings in Exempt Wholesale
Generators and Foreign Utility Companies.
(7) Entergy Corporation owns 100% of the outstanding capital
stock of Entergy Yacyreta I, Inc. and Entergy Power
Marketing Corporation. These companies have not been
capitalized and are currently inactive. Accordingly, no
financial information exists as of December 31, 1995.
(8) Entergy Corporation owns, indirectly through Entergy Power
Development Corporation, 100% of the outstanding capital
stock of Entergy Power Operations Holding Ltd., Entergy
Power Holding II, Ltd., Entergy Power Operations
Corporation, Entergy Edegel I, Inc., Entergy Crown Vista I,
Entergy Crown Vista III, and Entergy Crown Vista IV, each of
which has qualified for exemption from EWG status pursuant
to the Energy Act. Entergy Corporation owns, indirectly
through Entergy Power Operations Holding Ltd. (99%) and
Entergy Power Holding II, Ltd. (1%), 100% of the outstanding
common stock of Entergy Power Operations Pakistan LDC.
However, such companies are minimally capitalized, and none
of such companies currently own any facilities used for the
generation of electric energy for sale. Accordingly, no
financial information for such companies is provided under
Exhibit I.
(9) Entergy Corporation owns 100% of the outstanding capital
stock of Entergy Power Development International Holdings
Inc., Entergy Power Development International Corporation
and its wholly owned subsidiaries, EPG Cayman Holding I, EPG
Cayman Holding II, Entergy Victoria LDC, and Entergy
Victoria Holdings LDC, each of which has qualified for
exemption from FUCO status pursuant to the Energy Act.
However, such companies were not capitalized in 1995 and
such companies did not own any facilities used for the
generation of electric energy for sale. Accordingly, no
financial information for such companies is provided under
Exhibit I.
(10) In April 1996, the legal names of Arkansas Power & Light,
Gulf States Utilities, Louisiana Power & Light, Mississippi
Power & Light, and New Orleans Public Service Inc. were
changed to Entergy Arkansas, Inc., Entergy Gulf States,
Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc.,
and Entergy New Orleans, Inc., respectively.
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
All acquisitions or sales of utility assets for the year ended
December 31, 1995 have been previously reported on Rule 24
Certificates.
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM
SECURITIES
On April 27, 1995, NOPSI issued and sold, pursuant to the
exemptive provisions of Rule 52, General and Refunding Mortgage Bonds
in the amount of $30,000,000, 8.67% Series, due April 1, 2005.
Reference is made to the Certificate of Notification on Form U-6B-2,
dated April 28, 1995, filed by NOPSI with the Securities and Exchange
Commission with respect to this transaction.
On September 14, 1995 Entergy Transener S.A. issued and sold a
letter of credit to First National Bank of Boston, issued from the
Bank of America, in the amount of $4,150,000, expiring July 14, 1996.
On November 15, 1995, AP&L entered into a Loan Agreement with
Pope County, Arkansas, pursuant to the exemptive provisions of Rule
52, in which Pope County, Arkansas loaned and AP&L will repay on an
installment basis the net proceeds of the sale and issuance by Pope
County of $120,000,000 Pollution Control Revenue Bonds (Arkansas Power
& Light Company Project) Series 1995, due November 1, 2020. Reference
is made to the Certificate of Notification of Form U-6B-2, dated
December 8, 1995, filed by AP&L with the Securities and Exchange
Commission with respect to this transaction.
On November 27, 1995, EP Edegel, Inc. borrowed $65,000,000 from
Union Bank of Switzerland due on November 27, 1998. The debt is
guaranteed by Entergy Enterprises, Inc. Obligations of Entergy
Enterprises, Inc. are guaranteed by Entergy Corporation.
Additionally, in connection with the Edegel acquisition, a letter of
credit was issued in the amount of $6,940,000 on behalf of EP Edegel,
Inc. which is guaranteed by Entergy Enterprises, Inc. whose obligation
is guaranteed by Entergy Corporation.
On December 28, 1995, Entergy Power Development International
Corporation (EPDIC) entered into a Letter of Credit and Liquidity
Agreement with Swiss Bank. Pursuant to such agreement, a letter of
credit in the amount of $70,000,000 was issued on January 3, 1996.
The letter of credit expires December 27, 1996 with the option the
renew at the sole discretion of Swiss Bank on each anniversary date
through December 31, 2000. EPDIC's obligations are guaranteed in full
by Entergy Corporation. On March 7, 1996, Entergy Corporation
executed an Undertaking to Commonwealth Bank of Australia, as facility
agent for several lenders to CitiPower Pty, wherein Entergy agreed
that if a draw is made under the Swiss Bank that issued the letter of
credit and the US dollar proceeds received from such draw are
insufficient to cover certain obligations payable to such lenders in
Australian dollars, Entergy will pay the difference, up to $7,367,000.
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES
<TABLE>
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<S> <C> <C> <C> <C> <C> <C>
Calendar Year 1995
- -----------------------------------------------------------------------------------------------------------------------
Name of Company Number of Shares Holding Company Act
Name of Issuer Acquiring, Redeeming of Principal Amount Exemption or
and Security Groups or Retiring Securities Acquired Redeemed Retired Consideration Release Number
- -------------------- ---------------------- --------- ---------- ------------ -------------- -------------------
AP&L
Long-Term Debt,
including First
Mortgage Bonds* AP&L - - $147,425,000 $149,825,000 See Exhibit F
Preferred Stock* AP&L - 305,000 - $9,500,000 See Exhibit F
GSU
Long-Term Debt,
including First
Mortgage Bonds* GSU - - $50,425,000 $50,425,000 See Exhibit F
Preferred Stock* GSU - 72,834 - $7,283,400 See Exhibit F
LP&L
Long-Term Debt,
including First
Mortgage Bonds* LP&L - - $75,307,900 $75,307,900 See Exhibit F
Preferred Stock* LP&L - 450,211 - $11,255,275 See Exhibit F
MP&L
Long-Term Debt,
including First
Mortgage Bonds* MP&L - - $65,965,000 $65,965,000 See Exhibit F
Preferred Stock* MP&L - 150,000 - $15,000,000 See Exhibit F
NOPSI
Long-Term Debt,
including First
Mortgage Bonds* NOPSI - - $24,200,000 $24,200,000 See Exhibit F
Preferred Stock* NOPSI - 34,495 - $3,524,751 See Exhibit F
SYSTEM ENERGY
Long-Term Debt,
including First
Mortgage Bonds* SYSTEM ENERGY - - $149,000,000 $150,320,000 See Exhibit F
ENTERGY POWER, INC.
Common Stock ENTERGY 10,000 - - $250,000,000
CORPORATION
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<S> <C> <C> <C> <C> <C> <C>
Calendar Year 1995
- ------------------------------------------------------------------------------------------------------------------------
Name of Company Number of Shares Holding Company Act
Name of Issuer Acquiring, Redeeming of Principal Amount Exemption or
and Security Groups or Retiring Securities Acquired Redeemed Retired Consideration Release Number
- ------------------- ---------------------- ---------- ----------- ----------- -------------- --------------------
ENTERGY POWER
DEVELOPMENT
CORPORATION
Common Stock ENTERGY 31,000 - - $121,000,000
CORPORATION
ENTERGY POWER CBA
HOLDING, LTD.
Common Stock ENTERGY POWER HOLDING 12,000 - - $3,673,508
I, LTD.
ENTERGY POWER EDESUR
HOLDING, LTD.
Common Stock ENTERGY ARGENTINA, S.A. 3,516 - - $17,119,043
ENTERGY POWER EDESUR
HOLDING, LTD.
Common Stock ENTERGY ARGENTINA, S.A. 8,484 - - $41,102,100
LTD.
ENTERGY POWER HOLDING
I, LTD.
Common Stock ENTERGY POWER 1 - - $3,732,300
DEVELOPMENT
CORPORATION
E. P. EDEGEL
Common Stock ENTERGY POWER 1,000 - - $100,000,000
DEVELOPMENT
CORPORATION
ENTERGY TRANSENER
S.A.
Return of Capital ENTERGY - - $2,000,000 $2,000,000
CORPORATION
ENTERGY
CORPORATION
Capital Contribution ENTERGY ENTERPRISES, - - - $125,000,000
INC.
ENTERGY ENTERPRISES,
INC.
Capital Contribution ENTERGY SYSTEMS AND - - - $125,000,000
SERVICE, INC.
</TABLE>
* See annexed schedules (Pages 66-70 - Exhibit F) which identify the amount
acquired, redeemed or retired for each series or issue.
ITEM 5. INVESTMENTS IN SECURITIES OF NON-SYSTEM COMPANIES
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(1) Investments In Persons (Not Exceeding $100,000) Operating Within
Retail Service Area of Owner
-----------------------------------------------------------------
<S> <C> <C>
Amount of
Name of Owner Number of Persons and Description Investment
- -------------- ----------------------------------------- -----------
AP&L One: a development corporation $ 1,000
LP&L Twenty-four: nineteen country clubs, a
board of trade, a baseball club, a
restaurant, a development corporation,
and a toy store 12,338
MP&L Three: two industrial parks, and an oil
and gas and fertilizer company 20,167
---------
Total $ 33,505
=========
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<CAPTION>
(2) Other Investments
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Name of Issuer and a Number of % of Carrying
Name of Owner Description of the Security Shares Voting Value to
Issuer's Business Owned Owned Power Owner
------------- ------------------- ------------ --------- ------ ----------
AP&L Capital Avenue 70.063% - - $176,050
Development Company limited
(limited partnership partnership
engaged in the interest
business of
constructing, owning,
maintaining, operating
and leasing a 40-story
commercial office
building)
Entergy First Pacific Networks Common Stock, 1,715,235 7.9 1,876,038
Enterprises, Inc. Inc. (A communications ($.001 Par)
company, developing
jointly with Entergy,
utility applications
of patented
communication
technology)
Entergy Systems Systems and Service Notes - - 2,430,000
and Service, Inc. International, Inc. Receivable
(SASI) (A manufacturer
of efficient lighting
products)
Entergy S.A. Argelec S. A. 10% Interest 3,000 9.95 3,009
(Consortium of non-
affiliated companies
which independently
acquired a 60%
interest in Central
Costanera S.A.)
Entergy S.A. Central Costanera S. 6% Interest 8,081,160 6 10,524,005
A. (Owner of a 1,260
MW fossil-fuel steam
electric generating
facility located in
Buenos Aires,
Argentina)
Entergy Richmond Richmond Power 1% general - - 6,154,690
Power Corp. Enterprises LP(limited partnership
partnership engaged in interest
owning and operating 49% limited
an independent power partnership
plant) interest
Entergy Transener Citelec S. A. 15% interest 19,800,000 15 18,513,581
S. A. (Consortium of non-
affiliated companies
which acquired a 65%
interest in Transener
SA's high voltage
transmission system)
</TABLE>
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(2) Other Investments (continued)
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Name of Issuer and a Number of % of Carrying
Description of the Security Shares Voting Value to
Name of Owner Issuer's Business Owned Owned Power Owner
--------- --------------- -------- -------- ------ -------
-
Entergy Power Distrelec S.A. - 10% interest 9,911,200 10 58,221,143
Edesur Holding, Edesur Debt(Consortium
Ltd. of non- affiliated
companies which
acquired a 51%
interest in Edesur
SA's distribution
system for the
southern half of the
city of Buenos Aires,
Argentina)
Entergy Pakistan, Hub River Power 10% interest 115,473,441 10 50,531,000
Ltd. Company, Ltd. (Owner
of a 4 unit, 1,300 MW
oil- fired steam
electric generating
facility located near
Karachi, Pakistan at
the mouth of the Hub
River)
Entergy Power Hub River Power .05% interest 20,000 .05 216,500
Asia, Ltd. Company, Ltd. (Owner
of a 4 unit, 1,300 MW
oil- fired steam
electric generating
facility located near
Karachi, Pakistan at
the mouth of the Hub
River)
Entergy Power CBA Central Thermoelectric 7.8% interest 3,301,378 7.8 3,673,508
Holding Ltd. Buenos Aires(Owner of
220 MW combined cycle
gas tubine located at
the Central Costanera
Power Plant in Buenos,
Aires Argentina)
EP Edegel Generandes (Consortium 34.7% Not 50.01 165,000,000
of nonaffiliated interest available
companies which
acquired a 60%
interest in Edegel
S.A. owner of 5 hydro
electric generating
stations (totaling 539
MW) and one thermal
generation station
(154 MW) serving Lima,
Peru)
------------
Total $317,319,524
============
</TABLE>
ITEM 6. OFFICERS AND DIRECTORS
ITEM 6. Part I - Names, Addresses, and Positions Held
ETR = Entergy Corporation
AP&L = Arkansas Power & Light Company
GSU = Gulf States Utilities Company
LP&L = Louisiana Power & LightCompany
MP&L = Mississippi Power & Light Company
NOPSI = New Orleans Public Service Inc.
SERI = System Energy Resources, Inc.
EOI = Entergy Operations, Inc.
EPI = Entergy Power Inc.
ESI = Entergy Services, Inc.
SFI = System Fuels, Inc.
EEI = Entergy Enterprises, Inc.
<TABLE>
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<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ETR AP&L GSU LP&L MP&L NOPSI SERI EOI EPI ESI SFI EEI
Cecil L. Alexander VP
P. O. Box 55l
Little Rock, AR 72203
Kay Kelly Arnold VP
P. O. Box 8082
Little Rock, AR 72203
R. P. Barkhurst VP
Waterford 3
P. O. Box B
Kullona, LA 70066
Michael B. Bemis EVP EVP EVP EVP EVP EVP D
P. O. Box 8082 D D D D
Little Rock, AR 72203
Joseph L. Blount S S
1340 Echelon Parkway
Jackson, MS 39213
W. Frank Blount D D
Telstra Communication
Level 15 OTC House
231 Elizabeth
Sydney, NSW 2000
Australia
John A. Brayman EVP
900 S. Shackleford Road
Suite 210
Little Rock, AR 72211
Charles J. Brown III VP
900 S. Shackleford Road
Suite 210
Little Rock, AR 72211
S. M. Henry Brown, Jr. VP VP
1776 I St. N.W.
Suite 275
Washington, D.C. 20006
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<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ETR AP&L GSU LP&L MP&L NOPSI SERI EOI EPI ESI SFI EEI
James D. Bruno VP VP VP
4609 Jefferson Hwy.
Jefferson, LA 70121
Louis E. Buck, Jr. VP VP VP VP VP VP VP VP VP
639 Loyola Ave. CAO CAO CAO CAO CAO CAO CAO CAO CAO
New Orleans, La. 70113
Amery J. Champagne VP CEO
P. O. Box 2951 P
Beaumont, TX 77704 D
William E. Colston VP VP VP
446 North Blvd.
Baton Rouge, LA 70802
John A. Cooper, Jr. D
1801 Forest Hills Blvd.
Bella Vista, AR 72714-
2399
John J. Cordaro P P
639 Loyola Ave. D D
New Orleans, LA 70113
Bill F. Cossar VP
P. O. Box 1640
Jackson, MS 39215-1640
S. G. Cunningham, Jr. VP
639 Loyola Ave.
New Orleans, LA 70113
Robert J. Cushman VP VP
900 S. Shackleford Road
Suite 210
Little Rock, AR 72211
J. G. Dewease VP
1340 Echelon Parkway
Jackson, MS 39213
Johnny D. Ervin VP VP
P. O. Box 1640
Jackson, MS 39215-1640
Lucie J. Fjeldstad D D
3303 S.W. Sherwood Place
Portland, OR 97201
Lawrence S. Folks VP
18401 Von Karman Avenue
Suite 330
Irvin, CA 92715
Kent R. Foster VP D
P. O. Box 8082
Little Rock, AR 72203
Dr. Norman Francis D
7325 Palmetto Street
New Orleans, LA 70125
Frank F. Gallaher EVP P EVP EVP EVP EVP COB
350 Pine St. D D D
Beaumont, TX 77701
Richard C. Guthrie VP VP
639 Loyola Ave.
New Orleans, La. 70113
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<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ETR AP&L GSU LP&L MP&L NOPSI SERI EOI EPI ESI SFI EEI
William D. Hamilton VP
425 West Capitol Ave
Little Rock, AR 72203
David C. Harlan VP
639 Loyola Ave.
New Orleans, La. 70113
Jack Harrington VP
639 Loyola Ave.
New Orleans, La. 70113
Calvin J. Hebert VP
P. O. Box 2951
Beaumont, TX 77704
Donald C. Hintz EVP EVP EVP EVP D CEO CEO D D
1340 Echelon Parkway CNO D D D P P
Jackson, MS 39213 D D
Kaneaster Hodges, Jr. D
P. O. Box 338
Little Rock, AR 72112
C. Randy Hutchinson VP
P. O. Box 756
Port Gibson, MS 39150
Jerry D. Jackson EVP EVP EVP EVP EVP EVP EVP
639 Loyola Ave. D D D D D D
New Orleans, LA 70113
Karen Johnson VP
919 Congress Ave.
Suite 740
Austin, TX 78701
Robert A. Keegan VP
900 S. Shackleford Road
Suite 210
Little Rock, AR 72211
R. Drake Keith P
P. O. Box 551 D
Little Rock, AR 72203
Charles L. Kelly VP VP
639 Loyola Ave.
New Orleans, LA 70113
James F. Kenney VP
425 West Capitol
Little Rock, AR 72203
Richard J. Landy SVP SVP SVP SVP SVP SVP SVP
639 Loyola Ave. VP VP VP VP VP VP VP
New Orleans, LA 70113 CAdO CAdO CAdO CAdO CAdO CAdO CAdO
Robert v.d. Luft D D
DuPont
17235 Brandywine
Wilmington, DE 19898
Edwin Lupberger COB COB COB COB COB COB COB COB CEO COB COB
639 Loyola Ave. CEO CEO CEO CEO CEO CEO D D CEO P
New Orleans, LA 70113 P D D D D D P D
D D
John R. Marshall VP
P. O. Box 551
Little Rock, AR 72203
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<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ETR AP&L GSU LP&L MP&L NOPSI SERI EOI EPI ESI SFI EEI
Jerry L. Maulden VC VC VC VC VC VC D D VC
P. O. Box 8082 COO COO COO COO COO D
Little Rock, AR 72203 D D D D D
John R. McGaha VP
P. O. Box 220
St. Francisville, LA
70775
Gerald D. McInvale EVP EVP EVP EVP EVP EVP EVP EVP VP EVP EVP EVP
639 Loyola Ave. CFO CFO CFO CFO CFO CFO CFO CFO T CFO CFO CFO
New Orleans, LA 70113 D D D D D D D D D D T
Adm. Kinnaird R. McKee D
214 S. Morris St.
Oxford, Maryland 21654
Donald E. Meiners P
308 East Pearl Street D
Jackson, MS 39201
James E. Moss VP
639 Loyola Ave.
New Orleans, LA 70113
Dr. Paul W. Murrill D
206 Sunset Blvd.
Baton Rouge, LA 70808
James R. Nichols D
50 Congress Street
Suite 832
Boston, MA 02109
Michael R. Niggli SVP SVP SVP SVP SVP SVP
P. O. Box 8082
Little Rock, AR 72203
Kenneth W. Oberg VP
37/F LIPPO Tower,
Suite 08-11
LIPPO Centre
89 Queensway Central ,
Hong Kong
Terry L. Ogletree P EVP
900 S. Shackleford Road COO
Suite 210 D
Little Rock, AR 72211
Eugene H. Owen D D
8755 Goodwood Blvd.
Baton Rouge, LA 70806
Daniel F. Packer VP
639 Loyola Ave.
New Orleans, LA 70113
John N. Palmer, Sr. D D
P. O. Box 2469
Jackson, MS 39225-2469
Ronald E. Phillips VP
639 Loyola Ave.
New Orleans, LA 70113
James S. Pilgrim VP
900 South Louisiana
Little Rock, AR 72201
Robert D. Pugh D D
P. O. Box 159
Portland, AR 71663
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ETR AP&L GSU LP&L MP&L NOPSI SERI EOI EPI ESI SFI EEI
William J. Regan, Jr. VP VP VP VP VP VP VP VP VP VP
639 Loyola Ave. T T T T T T T T T T
New Orleans, LA 70113
Jim Rider VP
P. O. Box 2951
Beaumont, TX 77704
J. Michael Russ VP
P. O. Box 551
Little Rock, AR 72203
Christopher T. Screen S S
639 Loyola Ave.
New Orleans, LA 70113
H. Duke Shackelford D
P. O. Box 168
Bonita, LA 71223
Wm. Clifford Smith D
P. O. Box 2266
Houma, LA 70301
Bismark A. Steinhagen D
P. O. Box 20037
Beaumont, TX 77720-0037
Michael G. Thompson SVP SVP SVP SVP SVP SVP VP SVP SVP
639 Loyola Ave. S S S S S S D GC S
New Orleans, LA 70113 GC GC GC GC GC GC S
F. W. Titus VP
1340 Echelon Parkway
Jackson, MS 39213
C. Hiram Walters VP VP VP
2901 Cypress Street
P. O. Box 35803
West Monroe, LA 71294
Thomas J. Wright VP
3838 N. Causeway Blvd.
Metairie, LA 70002
Jerry W. Yelverton EVP
1340 Echelon Parkway COO
Jackson, MS 39213
Hebert H. Zureich, Jr. VP
900 S. Shackleford Road
Suite 210
Little Rock, AR 72211
</TABLE>
COB = Chairman of Board CAO = Chief Accounting Officer
P = President CAdO = Chief Administrative Office
SVP = Senior Vice President CEO = Chief Executive Officer
EVP = Executive Vice President CFO = Chief Financial Officer
VC = Vice Chairman CNO = Chief Nuclear Officer
VP = Vice President COO = Chief Operating Officer
T = Treasurer GC = General Counsel
S = Secretary
D = Director
ESSI = Entergy Systems and Service, Inc.
EPD = Entergy Power Development Corporation
ERP = Entergy Richmond Power Corporation
ESA = Entergy, S.A.
EASA = Entergy Argentina, S.A.
EASAL = Entergy Argentina, S.A., Ltd.
ETSA = Entergy Transener, S.A.
VARI = Varibus Corporation
PRUD = Prudential Oil & Gas, Inc.
GSG&T = GSG&T, Inc.
SGRC = Southern Gulf Railway Company
EPAT = Entergy Power Asia Ltd.
EPL = Entergy Pakistan Ltd.
EPDI = Entergy Power Development International
EYI = Entergy Yacyreta
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ESSI EPD ERP ESA EASA EASAL ETSA VARI PRUD GSG&T SGRC EPAT EPL EPDI EYI
Michael B. Bemis D D D D
P. O. Box 551
Little Rock, AR 72203
John L. Bosch T
4740 Shelby Drive.
Suite 105
Memphis, TN 38118
Charles J. Brown, III VP
900 S. Shackleford #210
Little Rock, AR 72211
John A. Brayman COB
900 S. Shackleford #210 D
Little Rock, AR 72211
Amery J. Champagne CEO CEO CEO CEO
P. O. Box 2951 P P P P
Beaumont, TX 77704 D D D D
Robert J. Cushman VP VP VP VP VP
Three Financial Centre
900 S. Shackleford #210
Little Rock, AR 72211
M. Noel C. DeSalvat AD AD
Alsina 495 14 Floor
1087 Buenos Aires
Argentina
Michael R. Farien VP
4740 Shelby Drive T
Suite 105
Memphis, TN 38118
Lawrence S. Folks VP VP VP VP
18401 Von Karman Ave.
Suite 330
Irvine, CA 92715
Kent R. Foster D D D D
P. O. Box 8082
Little Rock, AR 72203
Frank F. Gallaher COB COB COB COB
350 Pine Street D D D D
Beaumont, TX 77701
Donald C. Hintz D D D D
1340 Echelon Parkway
Jackson, MS 39213
Edwin Lupberger CEO CEO CEO CEO CEO CEO
639 Loyola Avenue
New Orleans, LA 70113
Robert Keegan VP VP VP VP
900 S. Shackleford Rd.
Suite 210
Little Rock, AR 72211
Gerald D. McInvale EVP SVP SVP EVP EVP EVP EVP SVP SVP SVP SVP
639 Loyola Avenue CFO T T CFO CFO CFO CFO T T T T
New Orleans, La. 70113 D D D D D D D D D D D
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 ESSI EPD ERP ESA EASA EASAL ETSA VARI PRUD GSG&T SGRC EPAT EPL EPDI EYI
Eduardo Montes De Oca D D
Alsina 495 14 Floor
1087 Buenos Aires
Argentina
Frederick Nugent VP VP VP
Three Financial Centre
900 S. Shackleford #210
Little Rock, AR 72211
Kenneth W. Oberg VP VP
37/F LIPPO Tower
Suite 08-11
LIPPO Centre
89 Queensway Cantral
Hong Kong
Terry L. Ogletree P P P P P P P P P P
Three Financial Centre COO COO D D D D D D COO D
900 S. Shackleford #210 D D D
Little Rock, AR 72211
Claudio Onetto D D D D
Alsina 495 14 Floor T T S T
1087 Buenos Aires S S S
Argentina
William J. Regan, Jr. VP VP VP VP
639 Loyola Ave. T T T T
New Orleans, LA 70113
Maximo J. Salvat AD D D D
Carrelal Funes de Rioja
Alsina 495
Buenos Aires, Argentina
Christopher T. Screen S S S S
639 Loyola Avenue
New Orleans, LA 70113
Michael G. Thompson VP VP VP SVP SVP SVP SVP
639 Loyola Avenue S D D D D D D
New Orleans, LA 70113 D S S S S S S
Alberto V. Triulzi VP VP VP VP
Alsina 495 14 Floor D D D D
1087 Buenos Aires T
Argentina
Paul E. Williams CEO
4740 Shelby Drive P
Suite 105 D
Memphis, TN 38118
</TABLE>
COB = Chairman of Board CEO = Chief Executive Officer
P = President CFO = Chief Financial Officer
SVP = Senior Vice President COO = Chief Operating Officer
EVP = Executive Vice President
VP = Vice President
T = Treasurer
S = Secretary
D = Director
AD = Alternate Director
EPHI = Entergy Power Holding I, Ltd.
EPHII = Entergy Power Holding II, Ltd.
EPOC = Entergy Power Operations Corporation
EPOH = Entergy Power Operations, Holdings
EPOP = Entergy Power Operations, Pakistan LDC
EVHL = Entergy Victoria Holding, LDC
EVL = Entergy Victoria LDC
ECHI = EPG Cayman, Holding I
ECHII = EPG Cayman, Holding II
EPM = Entergy Power Marketing
EE = Entergy Edegel I, Inc.
EDEG = EP Edegel, Inc.
EPCHL = Entergy Power CBA Holding, Ltd.
EPDIHI = Entergy Power Development International Holdings Inc.
EPEHL = Entergy Power Edesur Holding, Ltd.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
As of December 31, 1995 EPHI EPHII EPOC EPOH EPOP EVHL EVL ECHI ECHII EPM EE EDEG EPCHL EPDIHI EPEHL
Charles J. Brown, III VP
900 S. Shackleford #210
Little Rock, AR 72211
Robert J. Cushman VP VP VP VP VP VP VP VP VP VP VP VP VP VP VP
Three Financial Centre
900 S. Shackleford #210
Little Rock, AR 72211
Lawrence S. Folks VP VP VP VP VP VP
18401 Von Karman Ave. D D
Suite 330
Irvine, CA 92715
Edwin Lupberger CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO
639 Loyola Avenue
New Orleans, LA 70113
Robert Keegan VP VP VP VP VP VP VP VP VP
900 S. Shackleford Rd.
Suite 210
Little Rock, AR 72211
Gerald D. McInvale SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP
639 Loyola Avenue T T T T T T T T T T T T D D D
New Orleans, La. 70113 D D D D D D D D D D D D
Frederick Nugent VP VP VP VP VP VP VP VP VP VP VP VP VP
Three Financial Centre
900 S. Shackleford #210
Little Rock, AR 72211
Kenneth W. Oberg VP VP
37/F LIPPO Tower
Suite 08-11
LIPPO Centre
89 Queensway Cantral
Hong Kong
Terry L. Ogletree P P P P P P P P P P P P P COO P
Three Financial Centre D D D D D COO COO COO COO COO D COO D D D
900 S. Shackleford #210 D D D D D D
Little Rock, AR 72211
Michael G. Thompson SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP
639 Loyola Avenue D D D D D D D D D D D D D D D
New Orleans, LA 70113 S S S S S S S S S S S S
</TABLE>
P = President CEO = Chief Executive Officer
SVP = Senior Vice President COO = Chief Operating Officer
VP = Vice President
T = Treasurer
S = Secretary
D = Director
AD = Alternate Director
<PAGE>
ITEM 6.Part II - Financial Connections
<TABLE>
<CAPTION>
As of December 31, 1995
<S> <C> <C> <C>
Name and Location Position Held Applicable
Name of Officer of Financial in Financial Exemption
or Director Institution Institution Rule
(1) (2) (3) (4)
Michael B. Bemis Deposit Guaranty Director 70(c), (d), (f)
Corporation
Jackson, Mississippi
Deposit Guaranty Director 70(c), (d), (f)
National Bank
Jackson, Mississippi
W. Frank Blount First Union National Director 70(b), (c)
Bank
Atlanta, Georgia
John A. Cooper, Jr. First National Bank of Honorary 70(a)
Sharp County Director and
Ash Flat, Arkansas Stockholder*
Dr. Norman C. Francis Liberty Financial Chairman of 70(a)
Services/Liberty Bank the Board and
New Orleans, Louisiana Director
The Equitable Life Director 70(b), (d)
Assurance
Society
New York, New York
First National Bank of Director 70(a)
Commerce
New Orleans, Louisiana
Kaneaster Hodges, Jr. Newport Federal Savings Director 70(a)
Bank
Newport, Arkansas
Boatmen of Arkansas Director 70(a))
Little Rock, Arkansas
Edwin Lupberger First National Bank of Director 70(a), (c), (d),
Commerce (e), (f)
New Orleans, Louisiana
First Commerce Director 70(a), (c), (d),
Corporation (e), (f)
New Orleans, Louisiana
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
As of December 31, 1995
<S> <C> <C> <C>
Name and Location PositionHeld Applicable
Name of Officer of in Financial Exemption
or Director Financial Institution Institution Rule
(1) (2) (3) (4)
Donald E. Meiners Trustmark Corporation Director 70(c), (f)
Jackson, Mississippi
Trustmark National Bank Director 70(c), (f)
Jackson, Mississippi
Eugene H. Owen Premier Bancorp, Inc. Director 70(a)
Baton Rouge, Louisiana
Premier Bank, N.A. Director 70(a)
Baton Rouge, Louisiana
John N. Palmer, Sr. Deposit Guaranty Director 70(a), (c)
National Bank
Jackson, Mississippi
Robert D. Pugh Portland Bankshares, Director and 70(a), (c)
Inc. Stockholder*
Portland, Arkansas
Portland Bank Director 70(a), (c)
Portland, Arkansas
Boatmen's National Bank Director 70(a), (c)
of Pine Bluff
Pine Bluff, Arkansas
H. Duke Shackelford Hibernia National Bank Director 70(a)
New Orleans, Louisiana
Wm. Clifford Smith American Bancshares of Director 70(a)
Houma, Inc.
Houma, Louisiana
American Bank & Trust Director 70(a)
Co. of Houma
Houma, Louisiana
Paul W. Murrill McKenna & Co. Limited 70(b), (d)
Houston, Texas Partner
</TABLE>
* Holds, with power to vote, five percent or more of the
outstanding voting securities.
Item 6. Part III (a) - Executive Compensation
Summary Compensation Tables
The following table includes the Chief Executive Officers, as well
as each of the four other most highly compensated executive officers in
office as of December 31, 1995 and any other officer who would have been
one of the most highly compensated executive officer if he had not
retired or left an Entergy System company defined as: Entergy
Corporation, Arkansas Power & Light, Gulf States Utilities Company,
Louisiana Power & Light, Mississippi Power & Light, New Orleans Public
Service Inc., System Energy Resources, Inc., Entergy Services, Inc.,
System Fuels, Inc., Entergy Operations, Inc., Entergy Enterprises, Inc.,
Entergy Power, Inc., Entergy Power Development Corporation, Entergy
Richmond Power Corporation, Entergy Systems and Service, Inc., Entergy,
S.A., Entergy Argentina, S.A., Entergy Argentina S.A., Ltd., Entergy
Transener S.A., Varibus Corporation, Prudential Oil & Gas, Inc.,
Southern Gulf Railway Company, GSG&T, Inc., Entergy Power Asia, Ltd.,
Entergy Pakistan, Ltd., Entergy Power Development International, Entergy
Yacyreta, Entergy Power Holding I, Ltd., Entergy Power Holding II, Ltd.,
Entergy Power Operations Corporation, Entergy Power Operations Holdings,
Entergy Power Operations Pakistan LDC, Entergy Victoria Holding, LDC,
Entergy Victoria LDC, EPG Cayman Holding I, EPG Cayman Holding II,
Entergy Power Marketing, Entergy Edegel I, Inc., EP Edegel, Inc.,
Entergy Power CBA Holding, Ltd., Entergy Power Development International
Holdings Inc., and Entergy Power Edesur Holding, Ltd. This determination
was based on total annual base salary and bonuses (including bonuses of
an extraordinary and nonrecurring nature) from all System sources earned
during the year 1995. See Item 6. Part I "Names, Addresses, and
Positions Held", above incorporated herein by reference, for information
on the principal positions of each of the executive officers named in
the table below.
As shown in Item 6. Part I, most executive officers named below are
employed by several Entergy System companies. Because it would be
impracticable to allocate such officers' salaries among the various
companies, the table below includes aggregate compensation paid by all
Entergy System companies.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Long-Term Compensation
---------------------------------------
Annual Compensation Awards Payouts
---------------------------------- -------------------------- ----------
Other Restricted Securities (b) (c)
(a) Annual Stock Underlying LTIP All Other
Name Year Salary Bonus Compensation Awards Options Payouts Compensation
- ----------------- ----- --------- ---------- ------------- ---------- ----------- ---------- ------------
Ross P. Barkhurst 1995 $ 161,924 $83,212 $21,468 (d) 0 shares $0 $16,007
1994 156,552 65,086 13,148 (d) 0 0 13,669
1993 151,150 67,336 17,620 (d) 0 0 17,436
Michael B. Bemis 1995 $ 290,000 $216,909 $22,844 (d) 27,500 shares $294,282 $27,607
1994 288,846 76,923 32,940 (d) 2,500 28,275 22,982
1993 258,538 161,142 62,372 (d) 2,500 50,125 74,619
Joseph L. Blount 1995 $119,185 $43,645 $15,842 (d) 0 shares $0 $15,705
1994 115,171 17,064 9,339 (d) 0 0 12,416
1993 109,090 0 4,416 (d) 0 0 15,926
John L Bosch 1995 $134,250 $30,609 $2,719 (d) 0 shares $0 $4,000
1994 124,300 52,579 0 (d) 0 0 0
1993 99,750 0 0 (d) 0 0 0
John Brayman 1995 $122,885 $87,696 $64,129 (d) 0 shares $0 $60,605
1994 0 0 0 (d) 0 0 0
1993 0 0 0 (d) 0 0 0
Amery J. Champagne* 1995 $146,046 $74,704 $23,150 (d) 0 shares $0 $14,600
1994 136,669 41,699 3,952 (d) 0 0 8,361
1993 132,125 26,904 0 (d) 7,650 0 26,352
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Long-Term Compensation
-----------------------------------------
Annual Compensation Awards Payouts
---------------------------------- --------------------------- -----------
Other Restricted Securities (b) (c)
(a) Annual Stock Underlying LTIP All Other
Name Year Salary Bonus Compensation Awards Options Payouts Compensation
- ----------------- ----- --------- -------- ------------ ----------- ----------- ----------- ------------
Robert J. Cushman 1995 $176,000 $75,000 $6,486 (d) 0 shares $0 $8,880
1994 171,693 11,401 8,370 (d) 0 0 8,012
1993 52,350 40,000 1,668 (d) 0 0 2,400
Lawrence S. Folks 1995 $175,000 $86,625 $581 (d) 0 shares $0 $5,250
1994 121,154 48,000 1,061 (d) 0 0 0
1993 0 0 0 (d) 0 0 0
Frank F. Gallaher 1995 $240,000 $198,360 $61,360 (d) 27,500 shares $324,398 $21,457
1994 219,781 106,151 63,526 (d) 2,500 46,908 71,885
1993 162,643 101,355 19,213 (d) 2,500 83,763 21,191
Donald C. Hintz** 1995 $325,000 $265,049 $13,394 (d) 30,000 shares $409,414 $23,569
1994 320,769 142,749 52,389 (d) 5,000 48,379 23,056
1993 265,386 166,560 48,548 (d) 5,000 85,774 24,462
Jerry D. Jackson 1995 $325,000 $256,838 $43,054 (d) 30,000 shares $422,438 $24,794
1994 323,711 106,155 29,598 (d) 5,000 56,550 23,370
1993 288,559 217,287 36,166 (d) 6,719 100,250 25,961
Harold W. Keiser 1995 $262,011 $0 $8,589 (d) 2,500 shares $0 $20,779
1994 243,078 89,058 24,827 (d) 2,500 21,140 20,744
1993 169,240 159,828 22,292 (d) 0 38,250 37,242
Richard J. Landy 1995 $200,535 $147,429 $33,935 (d) 27,500 shares $200,750 $11,510
1994 179,041 48,657 11,327 (d) 2,500 21,460 8,875
1993 147,854 71,809 22,188 (d) 2,500 38,650 13,737
Edwin Lupberger*** 1995 $700,000 $568,400 $29,624 (d) 60,000 shares $781,337 $33,142
1994 681,539 218,789 39,961 (d) 10,000 139,525 29,457
1993 542,077 437,610 20,327 (d) 13,438 248,313 32,957
Jerry L. Maulden 1995 $435,000 $353,220 $26,248 (d) 30,000 shares $422,438 $28,504
1994 426,134 135,962 63,994 (d) 5,000 56,550 25,690
1993 385,000 286,985 84,655 (d) 5,000 100,250 25,639
Gerald D. McInvale 1995 $255,481 $186,739 $12,525 (d) 27,500 shares $294,282 $21,263
1994 244,165 66,227 14,146 (d) 2,500 28,275 19,581
1993 221,696 141,811 48,805 (d) 2,500 50,125 22,667
Terry L. Ogletree 1995 $245,000 $117,233 $20,717 (d) 25,000 shares $0 $19,175
1994 244,231 32,689 15,865 (d) 0 0 18,627
1993 177,588 50,000 35,003 (d) 0 0 50,300
William J. Regan,Jr. 1995 $120,577 $54,727 $21,141 (d) 0 shares $0 $14,633
1994 0 0 0 (d) 0 0 0
1993 0 0 0 (d) 0 0 0
Michael Thompson 1995 $236,546 $163,612 $57,600 (d) 2,500 shares $211,219 $17,078
1994 229,378 62,172 21,287 (d) 2,500 28,275 12,988
1993 212,550 138,431 20,714 (d) 2,500 50,125 17,398
Paul E. Williams**** 1995 $175,000 $66,500 $0 (d) 0 shares $0 $15,000
1994 175,000 573,600 0 (d) 0 0 15,000
1993 150,000 51,435 0 (d) 0 0 15,000
</TABLE>
* Chief Executive Officer of System Fuels, Inc., Varibus Corporation,
Prudential Oil & Gas, Inc., Southern Gulf Railway Company, and
GSG&T.
** Chief Executive Officer of System Energy Resources, Inc. and
Entergy Operations, Inc.
*** Chief Executive Officer of Entergy Corporation, Arkansas Power &
Light, Gulf States Utilities Company, Louisiana Power & Light,
Mississippi Power & Light, New Orleans Public Service Inc.,
Entergy Services, Inc., Entergy Power, Inc.; Entergy Power
Development Corporation; Entergy Richmond Power Corporation;
Entergy Power Asia, Ltd., Entergy Pakistan, Ltd., Entergy Power
Development International, Entergy Yacyreta, Entergy Power Holding
I, Ltd., Entergy Power Holding II, Ltd., Entergy Power Operations
Corporation, Entergy Power Operations Holdings, Entergy Power
Operations Pakistan LDC, Entergy Victoria Holding LDC, Entergy
Victoria LDC, EPG Cayman Holding I, EPG Cayman Holding II, Entergy
Power Marketing, Entergy Edegel I, Inc., EP Edegel, Inc., Entergy
Power CBA Holding, Ltd., Entergy Power Development International
Holdings Inc., and Entergy Power Edesur Holding, Ltd.
**** Chief Executive Officer of Entergy Systems and Service, Inc.
(a) Includes bonuses earned pursuant to the Annual Incentive Plan as
well as any bonuses of an extraordinary or nonrecurring nature.
(b) Amounts include the value of restricted shares that vested under
Entergy's Equity Ownership Plan.
(c) Includes the following:
(1) 1995 employer payments for Executive Medical Plan
premiums as follows: Mr. Barkhurst $3,019; Mr. Bemis $3,019;
Mr. Blount $3,019; Mr. Brayman $1,510; Mr. Champagne $3,019;
Mr. Gallaher $3,019; Mr. Hintz $3,019; Mr. Jackson $3,019; Mr.
Keiser $3,019; Mr. Landy $3,019; Mr. Lupberger $3,019; Mr.
Maulden $3,019; Mr. McInvale $3,019; Mr. Regan $2,013; and Mr.
Thompson $3,019.
(2) 1995 employer contributions to the Defined Contribution
Restoration Plan as follows: Mr. Barkhurst, $358; Mr. Bemis,
$4,200; Mr. Cushman, $780; Mr. Folks, $750; Mr. Gallaher,
$2,700; Mr. Hintz, $5,250; Mr. Jackson, $5,250; Mr. Keiser,
$3,360; Mr. Landy, $1,516; Mr. Lupberger, $16,500; Mr.
Maulden, $8,550; Mr. McInvale, $3,164; Mr. Ogletree, $2,850;
and Mr. Thompson, $2,596.
(3) 1995 employer contributions to the System Savings Plan as
follows: Mr. Barkhurst $4,500; Mr. Bemis, $4,500; Mr. Blount,
$3,576; Mr. Champagne $4,381; Mr. Cushman, $4,500; Mr. Folks,
$4,500; Mr. Gallaher, $4,500; Mr. Hintz, $4,500; Mr. Jackson,
$4,500; Mr. Keiser, $4,500; Mr. Landy, $4,500; Mr.
Lupberger, $4,500; Mr. Maulden, $4,500; Mr. McInvale,
$4,500; Mr. Ogletree, $4,500; Mr. Regan, $877; and Mr.
Thompson, $4,500.
(4) 1995 reimbursements under the Executive Financial
Counseling Program as follows: Mr. Bemis, $2,625; Mr.
Jackson, $1,225; Mr. Lupberger, $3,100; Mr. Maulden, $2,715;
Mr. McInvale, $680; Mr. Ogletree, $1,025; and Mr. Thompson,
$4,488.
(5) 1995 payments for personal use under the Private
Ownership Vehicle Plan as follows: Mr. Barkhurst $7,200; Mr.
Bemis, $9,900; Mr. Blount, $7,200; Mr. Bosch, $4,000; Mr.
Brayman $5,600; Mr. Champagne, $7,200; Mr. Cushman, $3,600;
Mr. Gallaher, $10,800; Mr. Hintz, $10,800; Mr. Jackson,
$10,800; Mr. Keiser, $9,900; Mr. Landy, $2,475; Mr. Lupberger,
$6,023; Mr. Maulden, $9,720; Mr. McInvale, $9,900; Mr.
Ogletree, $10,800; Mr. Regan, $4,800; Mr. Thompson, $2,475;
and Mr. Williams $15,000.
(6) 1995 reimbursements for moving expenses are as follows:
Mr. Brayman, $53,495; Mr. Gallaher, $438; and Mr. Regan,
$6,943.
(7) 1995 earnings under the Entergy Stock Investment Plan as
follows: Mr. Barkhurst, $930; Mr. Bemis $3,363; and Mr.
Blount $1,910.
(d) There were no restricted stock awards in 1995 under the Equity
Ownership Plan. At December 31, 1995, the number and value of the
aggregate restricted stock holdings were as follows: Mr. Bemis:
4,000 shares, $117,000; Mr. Gallaher: 5,175 shares, $151,369; Mr.
Hintz: 5,429 shares, $158,798; Mr. Jackson: 5,500 shares, $160,875;
Mr. Landy: 3,700 shares, $108,225; Mr. Lupberger: 10,900 shares,
$318,825; Mr. Maulden: 5,500 shares, $160,875; Mr. McInvale: 4,000
shares, $117,000 and Mr. Thompson: 2,750 shares, $80,438.
Accumulated dividends are paid on restricted stock when vested.
The value of stock for which restrictions were lifted in 1995, and
the applicable portion of accumulated cash dividends, are reported
in the LTIP Payouts column in the above table. The value of
restricted stock awards as of December 31, 1995 are determined by
multiplying the total number of shares awarded by the closing
market price of Entergy Corporation common stock on the New York
Stock Exchange Composite Transactions on December 29, 1995 ($29.25
per share).
Option Grants in 1995
The following table summarizes option grants during 1995 to the
executive officers named in the Summary Compensation Table above. The
absence, in the table below, of any named officer indicates that no
options were granted to such officer.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Individual Grants
------------------------------------------------- Potential Realizable
% of Total Value
Number of Options at Assumed Annual
Securities Granted to Exercise Rates of Stock
Underlying Employees Price Price Appreciation
Options in (per Expiration for Option Term(c)
Name Granted 1995 share) Date 5% 10%
---------- ---------- ----------- ---------- -------- ---------
Michael B. Bemis 2,500 (a) 0.8% $23.375 (a) 1/26/05 $36,751 $93,134
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Frank F. Gallaher 2,500 (a) 0.8% 23.375 (a) 1/26/05 36,751 93,134
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Donald C. Hintz 5,000 (a) 1.6% 23.375 (a) 1/26/05 73,502 186,269
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Jerry D. Jackson 5,000 (a) 1.6% 23.375 (a) 1/26/05 0 0
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Harold W. Keiser 2,500 (a) 0.8% 23.375 (a) 1/26/05 36,751 93,134
- (b) - - (b) - - -
Richard J. Landy 2,500 (a) 0.8% 23.375 (a) 1/26/05 0 0
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Edwin Lupberger 10,000 (a) 3.2% 23.375 (a) 1/26/05 147,004 372,537
50,000 (b) 15.9% 20.875 (b) 3/31/05 656,409 1,663,469
Jerry L. Maulden 5,000 (a) 1.6% 23.375 (a) 1/26/05 73,502 186,269
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Gerald D. 2,500 (a) 0.8% 23.375 (a) 1/26/05 36,751 93,134
McInvale
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Terry L. Ogletree - (a) - - (a) - - -
25,000 (b) 7.9% 20.875 (b) 3/31/05 328,204 831,734
Michael Thompson 2,500 (a) 0.8% 23.375 (a) 1/26/05 36,751 93,134
- (b) - - (b) - - -
</TABLE>
(a) Options were granted on January 26, 1995, pursuant to the Equity
Ownership Plan. All options granted on this date have an exercise
price equal to the closing price of Entergy Corporation common
stock on the New York Stock Exchange Composite Transactions on
January 26, 1995. These options became exercisable on
July 26, 1995.
(b) Options were granted on March 31, 1995, pursuant to the Equity
Ownership Plan. All options granted on this date have an exercise
price equal to the closing price of Entergy Corporation common
stock on the New York Stock Exchange Composite Transactions on
March 31, 1995. These options will become exercisable on
March 31, 1998.
(c) Calculation based on the market price of the underlying securities
over a ten-year period assuming annual compounding. The column
presents estimates of potential values based on simple mathematical
assumptions. The actual value, if any, an executive officer may
realize is dependent upon the market price on the date of option
exercise.
Aggregated Option Exercises in 1995 and December 31, 1995 Option Values
The following table summarizes the number and value of options exercised
during 1995, as well as the number and value of unexercised options, as of
December 31, 1995, held by the executive officers named in the Summary
Compensation Table above.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Number of Securities Value of Unexercised
Underlying Unexercised Options In-the-Money Options
Shares Acquired Value as of December 31, 1995 as of December 31, 1995(b)
Name on Exercise Realized(a) Exercisable Unexercisable Exercisable Unexercisable
- ----------------- --------------- ------------ ------------ ------------- ------------ -------------
Michael B. Bemis 0 $0 10,000 25,000 58,750 $209,375
Frank F. Gallaher 0 0 7,500 25,000 14,688 209,375
Donald C. Hintz 0 0 17,500 25,000 29,375 209,375
Jerry D. Jackson 5,000 21,817 14,411 25,000 0 209,375
Harold W. Keiser 0 0 7,500 0 14,688 0
Richard J. Landy 2,500 10,384 5,000 25,000 0 209,375
Edwin Lupberger 0 0 38,824 50,000 58,750 418,750
Jerry L. Maulden 0 0 20,000 25,000 29,375 209,375
Gerald D. McInvale 0 0 10,000 25,000 14,688 209,375
Terry L. Ogletree 0 0 0 25,000 0 209,375
Michael Thompson 0 0 7,500 0 14,688 0
</TABLE>
(a)For Mr. Jackson and Mr. Landy, the value realized is based on the
difference between the closing price of the Corporation's Common
Stock on the New York Stock Exchange Composite Transactions on the
exercise date of November 17, 1995 and November 20, 1995,
respectively, and the option exercise price.
(b)Based on the difference between the closing price of the
Corporation's Common Stock on the New York Stock Exchange Composite
Transactions on December 29, 1995, and the option exercise price.
Pension Plan Tables
Retirement Income Plan Table
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Annual
Covered Years of Service
Compensation 15 20 25 30 35
- ------------- ----------- ------------ ----------- ---------- --------
$100,000 $ 22,500 $ 30,000 $ 37,500 $ 45,000 $ 52,000
200,000 45,500 60,000 75,000 90,000 105,000
300,000 67,500 90,000 112,500 135,000 157,500
400,000 90,000 120,000 150,000 180,000 210,000
500,000 112,500 150,000 187,500 225,000 262,500
850,000 191,250 255,000 318,750 382,500 446,250
</TABLE>
Certain Entergy System companies participate in a Retirement
Income Plan (a defined benefit plan) that provides a benefit for
employees at retirement from the System based upon (1) generally all
years of service beginning at age 21 through termination, with a
forty-year maximum, multiplied by (2) 1.5%, multiplied by (3) the final
average compensation. Final average compensation is based on the
highest consecutive 60 months of covered compensation in the last 120
months of service. The normal form of benefit for a single employee is
a lifetime annuity and for a married employee is a 50% joint and
survivor annuity. Other actuarially equivalent options are available
to each retiree. Retirement benefits are not subject to any deduction
for Social Security or other offset amounts. The amount of the named
executive officers' annual compensation covered by the plan as of
December 31, 1995, is represented by the salary column in the Summary
Compensation Table above.
The maximum benefit under the Retirement Income Plan is limited by
Sections 401 and 415 of the Internal Revenue Code of 1986, as amended;
however, certain companies have elected to participate in the Pension
Equalization Plan sponsored by Entergy Corporation. Under this plan,
certain executives, would receive an amount equal to the benefit
payable under the Retirement Income Plans, without regard to the
limitations, less the amount actually payable under the Retirement
Income Plans.
Effective January 1, 1995, the System Companies Retirement Income
Plans were amended to transfer assets and related liabilities to a
single Entergy Corporation Retirement Plan for all non-bargaining unit
employees. Certain of the companies amended their Retirement Income
Plan effective February 1, 1991, to provide a minimum accrued benefit
as of that date to any employee who was vested as of that date. For
purposes of calculating such minimum accrued benefit, each eligible
employee was deemed to have had an additional five years of service and
age as of that date. The additional years of age did not count toward
eligibility for early retirement, but served only to reduce the early
retirement discount factor for those employees who were at least age 50
as of that date.
The credited years of service under the Entergy Corporation
Retirement Income Plan (without giving effect to the five additional
years of service credited pursuant to the February 1, 1991 amendment as
discussed above) as of December 31, 1995 for the executive officers
named in the Summary Compensation Table were as follows: Mr. Barkhurst
13, Mr. Bemis 13, Mr. Blount 11, Mr. Champagne 22, Mr. Cushman 2, Mr.
Folks 1, Mr. Gallaher 24, Mr. Landy 12, and Mr. Maulden 30.
The credited years of service under the Entergy System companies'
Retirement Income Plans, as amended, as of December 31, 1995 for the
executive officers named in the Summary Compensation Table, as a result
of entering into supplemental retirement agreements, were as follows:
Mr. Brayman 24, Mr. Hintz 24, Mr. Jackson 16, Mr. Lupberger 32,
Mr. McInvale 23, Mr. Ogletree 27, and Mr. Thompson 19.
In addition to the Entergy Corporation Retirement Income Plan
discussed above, certain companies participate in the Supplemental
Retirement Plan of Entergy Corporation and Subsidiaries (SRP) and the
Post-Retirement Plan of Entergy Corporation and Subsidiaries (PRP).
Participation is limited to one of these two plans and is at the
invitation of a participating employer. The participant may receive
from the appropriate System company a monthly benefit payment not in
excess of .025 (under the SRP) or .0333 (under the PRP) times the
participant's average base annual salary (as defined in the plans) for
a maximum of 120 months. Mr. Hintz entered into SRP participation
contracts and Mr. Ogletree entered into a contract substantially
similar to the SRP participation contract. All remaining executive
officers named in the Summary Compensation Table (except for
Mr. Blount, Mr. Bosch, Mr. Brayman, Mr. Champagne, Mr. Cushman, Mr.
Folks, Mr. Keiser, Mr. McInvale, Mr. Regan, Mr. Thompson, and Mr.
Williams) have PRP participation contracts.
System Executive Retirement Plan Table (1)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Annual
Covered Years of Service
Compensation 15 20 25 30+
- -------------- -------- --------- --------- ---------
$ 200,000 $ 90,000 $100,000 $110,000 $120,000
300,000 135,000 150,000 165,000 180,000
400,000 180,000 200,000 220,000 240,000
500,000 225,000 250,000 275,000 300,000
600,000 270,000 300,000 330,000 360,000
700,000 315,000 350,000 385,000 420,000
1,000,000 450,000 500,000 550,000 600,000
</TABLE>
__________
(1) Benefits shown are based on a target replacement ratio of 50% based
on the years of service and covered compensation shown. The
benefits for 15 and 20 or more years of service at the 45% and 55%
replacement levels would decrease (in the case of 45%) or increase
(in the case of 55%) by the following percentages: 4.5% and 5.0%,
respectively.
In 1993, Entergy Corporation adopted the System Executive
Retirement Plan (SERP). Certain of the companies are participating
employers in the SERP. The SERP is an unfunded defined benefit plan
offered at retirement to certain senior executives, which would
currently include all the executive officers (except for Mr. Bosch, Mr.
Blount, Mr. Cushman, Mr. Folks, Mr. Keiser, Mr. Ogletree, and Mr.
Williams) named in the Summary Compensation Table. Participating
executives choose, at retirement, between the retirement benefits paid
under provisions of the SERP or those payable under the executive
retirement benefit plans discussed above. Covered pay under the SERP
includes final annual base salary (see the Summary Compensation Table
for the base salary covered by the SERP as of December 31, 1995) plus
the Target Incentive Award (i.e., a percentage of final annual base
salary) for the participant in effect at retirement. Benefits paid under
the SERP are calculated by multiplying the covered pay times target pay
replacement ratios (45%, 50%, or 55%, dependent on job rating at
retirement) that are attained, according to plan design, at 20 years of
credited service. The target ratios are increased by 1% for each year
of service over 20 years, up to a maximum of 30 years of service. In
accordance with the SERP formula, the target ratios are reduced for each
year of service below 20 years. The credited years of service under
this plan are identical to the years of service for named executive
officers (other than Mr. Bemis, Mr. Brayman, Mr. Jackson, Mr. Landy, Mr.
McInvale, and Mr. Thompson) disclosed above in the "Pension Plan Tables-
Retirement Income Plan Table" section. Mr. Bemis, Mr. Brayman, Mr.
Jackson, Mr. Landy, Mr. McInvale, and Mr. Thompson have 23 years, 0
years, 22 years, 22 years, 14 years and 4 years, respectively, of
credited service under this plan.
The normal form of benefit for a single employee is a lifetime
annuity and for a married employee is a 50% joint and survivor annuity.
All SERP payments are guaranteed for ten years. Other actuarially
equivalent options are available to each retiree. SERP benefits are
offset by any and all defined benefit plan payments from the company and
from prior employers. SERP benefits are not subject to Social Security
offsets.
Eligibility for and receipt of benefits under any of the executive
plans described above are contingent upon several factors. The
participant must agree that, without the specific consent of the System
company for which such participant was last employed, he may take no
employment after retirement with any entity that is in competition with,
or similar in nature to, any System company. Eligibility for benefits is
forfeitable for various reasons, including violation of an agreement
with a participating employer, resignation of employment, or termination
for cause.
In addition to the Entergy System companies' Retirement Income Plan
discussed above, Gulf States Utilities Company provides, among other
benefits to officers, an Executive Income Security Plan for key
managerial personnel. The plan provides participants with certain
retirement, disability, termination, and survivors' benefits. To the
extent that such benefits are not funded by the employee benefit plans
of Gulf States Utilities Company or by vested benefits payable by the
participants' former employers, Gulf States Utilities Company is
obligated to make supplemental payments to participants or their
survivors. The plan provides that upon the death or disability of a
participant during his employment, he or his designated survivors will
receive (i) during the first year following his death or disability an
amount not to exceed his annual base salary, and (ii) thereafter for a
number of years until the participant attains or would have attained age
65, but not less than nine years, an amount equal to one-half of the
participant's annual base salary. The plan also provides supplemental
retirement benefits for life for participants retiring after reaching
age 65 equal to 1/2 of the participant's average final compensation
rate, with 1/2 of such benefit upon the death of the participant being
payable to a surviving spouse for life.
Gulf States Utilities Company amended and restated the plan
effective March 1, 1991, to provide such benefits for life upon
termination of employment of a participating officer or key managerial
employee without cause (as defined in the plan) or if the participant
separates from employment for good reason (as defined in the plan), with
1/2 of such benefits to be payable to a surviving spouse for life.
Further, the plan was amended to provide medical benefits for a
participant and his family when the participant separates from service.
These medical benefits generally continue until the participant is
eligible to receive medical benefits from a subsequent employer; but in
the case of a participant who is over 50 at the time of separation and
was participating in the plan on March 1, 1991, medical benefits
continue for life. By virtue of the 1991 amendment and restatement,
benefits for a participant cannot be modified once he becomes eligible
to participate in the plan.
Compensation of Directors
Directors of the Entergy Corporation and Entergy Enterprises, Inc.
who are not employees of a System company are paid an attendance fee of
$1,000 for attendance at meetings of the Board of Directors, $1,000 for
attendance at meetings of committees of the Board (except for the
committee chairmen who are paid $1,500), $2,000 for attending committee
meetings of the Board of Directors when scheduled during a time or at a
location not in association with a scheduled Board of Directors meeting
(except for committee chairmen who are paid $2,500), and $1,000 for
participation on behalf of the Corporation in any inspection trip or
conference not held on the same day as a Board or committee meeting.
All nonemployee directors are also compensated on a quarterly basis in
the form of fixed awards of the Corporation's Common Stock pursuant to
the Stock Plan for Outside Directors (Directors Plan) and cash based on
1/2 the value of the stock awarded pursuant to the Directors Plan. This
level of directors' compensation is set to enable the Corporation to
attract and retain persons of outstanding competence to serve on the
Board of Directors. Directors are paid a portion of their compensation
in the form of the Corporation's Common Stock in order to assure that
directors will have a personal interest in the performance of the stock
of the Corporation. Nonemployee directors of the Corporation are
awarded 150 shares of the Corporation's Common Stock quarterly,
consisting of authorized but unissued shares, treasury shares, or shares
acquired on the open market.
The remaining Entergy System companies currently have no
non-employee directors, and none of the current directors are
compensated for his responsibilities as director.
Retired nonemployee directors of Entergy Corporation with a minimum
of five years of service are paid 100% of their annual retainer at
retirement for a term corresponding to the number of years of service or
until death, whichever occurs first. Retired nonemployee directors with
over ten years of service receive a lifetime benefit. However,
nonemployee directors who were also formerly directors of Gulf States
Utilities, i.e., Messrs. Owen and Steinhagen and Dr. Murrill, pursuant
to the terms of the agreement consolidating Entergy Corporation (a
Florida corporation) and Gulf States Utilities, may choose either the
director retirement benefits offered by the Corporation or the director
retirement benefits formerly offered to directors of Gulf States
Utilities. Under the Gulf States Utilities retirement plan for
directors, the retirement benefit will be 30 percent of the retainer fee
for service of not less than five nor more than nine years, 40 percent
for service of not less than ten nor more than fourteen years, and 50
percent for fifteen or more years of service. For those directors who
retire prior to the retirement age, the benefits will be reduced. The
plan also provides disability retirement benefits if the director has
served at least five years prior to the disability.
Retired non-employee directors of Arkansas Power & Light, Louisiana
Power & Light, Mississippi Power & Light, New Orleans Public Service
Inc., Entergy Operations, Inc., and Entergy Enterprises, Inc. with a
minimum of five years of service on the respective Boards of Directors
are paid $200 a month for a term of years corresponding to the number of
years of active service as directors. Retired non-employee directors
with over ten years of service receive a lifetime benefit of $200 a
month. Years of service as an advisory director are included in
calculating this benefit. System Energy has no retired non-employee
directors.
On certain occasions Entergy Corporation provides personal
transportation services for the benefit of nonemployee directors.
During 1995, the value of such transportation services provided by
Entergy Corporation was approximately $49,000.
Employment Contracts and Termination of Employment and Change-in-Control
Arrangements
Mr. Ogletree has an employment contract whereby if he is terminated
for reasons other than just cause prior to the fifth anniversary of his
employment, Entergy Enterprises, Inc. will pay Mr. Ogletree one year's
severance allowance which is his base salary at the time of his
termination. Mr. Ogletree was also vested for the 24.33 years of
service under his Supplemental Credited Service Agreement and for five
years under his Special Retirement Agreement as of the effective date of
his employment contract.
Mr. Williams has an employment contract whereby if he is terminated
for nonperformance due to disability or reasons other than just cause
prior to the fifth anniversary of his employment, Entergy System and
Services, Inc.(ESSI) will pay Mr. Williams a severance allowance. This
severance allowance represents his base salary at the time of his
termination and would be paid for the remaining balance of his five year
employment contract. If Mr. Williams is terminated for reasons other
than just cause, he has agreed to provide consulting services to ESSI at
no additional compensation for the remaining balance of his five year
employment contract. During this period, ESSI would continue to provide
Mr. Williams with medical insurance benefits.
Mr. Folks has an employment contract whereby if after ten years of
continuous employment with Entergy Enterprises, Inc., his position is
eliminated, or his employment terminated for other than just cause, or
if he is required to relocate outside of Southern California, Mr. Folks
will be provided a severance package equal to one year annual base
salary. Additionally, Mr. Folks will receive five additional years of
credited service after completing ten years of actual service.
Mr. Brayman has an employment contract whereby if he is terminated
prior to the time he becomes eligible to retire, Entergy Enterprises,
Inc. will pay Mr. Brayman a minimum of two years salary at termination
as severance and provide compensation for a household move within the
continental United States under the same terms and conditions as that
provided at the time of employment.
Gulf States Utilities Company established on January 18, 1991, an
Executive Continuity Plan for elected and appointed officers providing
for severance benefits equal to 2.99 times the officer's annual
compensation upon termination of employment for reasons other than cause
or upon a resignation of employment for good reason within two years
after a change in control of Gulf States Utilities Company. Benefits
are prorated if the officer is within three years of normal retirement
age (65) at termination of employment. The plan further provides for
continued participation in medical, dental, and life insurance programs
for three years following termination unless such benefits are available
from a subsequent employer. The plan provides for outplacement
assistance to aid a terminated officer in securing another position.
Upon consummation of the Entergy Corporation/Gulf States Utilities
Company merger on December 31, 1993, Gulf States Utilities Company made
a one time contribution of $16,330,693 to a trust equivalent to the then
present value of the maximum benefits which might be payable under the
plan. As of December 31, 1995, the balance in the trust had been
reduced to $7,678,628. If and to the extent outstanding benefits are
not paid to the participants, the balance in the trust will be returned
to GSU.
As a result of the Entergy Corporation/ Gulf States Utilities
Company merger, Gulf States Utilities Company is obligated to pay
benefits under the Executive Income Security Plan to those persons who
were participants at the time of the merger and who later terminated
their employment under circumstances described in the plan. For
additional description of the benefits under the Executive Income
Security Plan, see the "Pension Plan Tables-System Executive Retirement
Plan Table" section noted above.
Personnel/Compensation Committee Interlocks and Insider Participation
The following persons served during 1995 as members of the
Personnel Committee of Entergy Corporation's Board of Directors:
Entergy Corporation - Eugene H. Owen*, W. Frank Blount, John A.
Cooper, Jr., Dr. Paul W. Murrill
______________
* Denotes Chairman of the Personnel Committee
The other Entergy System companies do not have a Personnel
Committee of the Board of Directors. The compensation of these
companies' executive officers (with the exception of several officers
who are not named in the Summary Compensation Table) was set by the
Personnel Committee of Entergy Corporation's Board of Directors for
1995. No officers or employees of such companies participated in
deliberations concerning compensation during 1995. See Item 6. Part I
"Names, Addresses, and Positions Held", incorporated herein by
reference, for a listing of Entergy Corporation's directors at December
31, 1995.
Item 6. Part III (b) - Security Ownership of Certain Beneficial Owners
and Management
The directors, the executive officers named in the Summary
Compensation Table, and the directors and officers as a group for
Entergy Corporation, Arkansas Power & Light, Gulf States Utilities
Company, Louisiana Power & Light, Mississippi Power & Light, New Orleans
Public Service Inc., System Energy Resources, Inc., Entergy Services,
Inc., System Fuels, Inc., Entergy Operations, Inc., Entergy Enterprises,
Inc., Entergy Power, Inc., Entergy Power Development Corporation,
Entergy Richmond Power Corporation, Entergy Systems and Service, Inc.,
Entergy, S.A., Entergy Argentina S.A., Entergy Argentina, S.A., Ltd.,
Entergy Transener, S.A., Varibus Corporation, Prudential Oil & Gas,
Inc., Southern Gulf Railway Company, GSG&T, Inc., Entergy Power Asia,
Ltd., Entergy Pakistan, Ltd., Entergy Power Development International,
Entergy Yacyreta, Entergy Power Holding I, Ltd., Entergy Power Holding
II, Ltd., Entergy Power Operations Corporation, Entergy Power Operations
Holdings, Entergy Power Operations Pakistan, LDC, Entergy Victoria
Holding, LDC, Entergy Victoria LDC, EPG Cayman Holding I, EPG Cayman
Holding II, Entergy Power Marketing, Entergy Edegel I, Inc., EP Edegel,
Inc., Entergy Power CBA Holding, Ltd., Entergy Power Development
International Holdings Inc., and Entergy Power Edesur Holding, Ltd.
beneficially owned directly or indirectly the following cumulative
preferred stock of a System company and/or common stock of Entergy:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
----------------------------------------------------------
Entergy Corporation
Common Stock
------------------------------
Preferred Stock Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------ ------------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ------------------------- ----------- ----------- ------------ ------------
Entergy Corporation
W. Frank Blount* - - 3,734 -
John A. Cooper, Jr.* 6,000 (a) - 6,334 -
Lucie J. Fjeldstad* - - 2,684 -
Dr. Norman C. Francis* - - 1,000 -
Donald C. Hintz** - - 40,451 50,151
Kaneaster Hodges, Jr.* - - 3,517 -
Jerry D. Jackson** - - 40,290 48,148
Robert v.d. Luft* - - 2,984 -
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden** - - 77,924 61,816
Gerald D. McInvale** - - 37,005 39,920
Adm. Kinnaird R. McKee* - - 2,167 -
Paul W. Murrill* - - 2,754 -
James R. Nichols* - - 4,179 -
Eugene H. Owen* - 3,500 (a) 2,392 -
John N. Palmer, Sr.* - - 15,000 -
Robert D. Pugh* - - 6,000 10,000(i)
H. Duke Shackelford* - - 8,750 3,950(i)
Wm. Clifford Smith* - - 4,670 -
Bismark A. Steinhagen* - - 7,037 -
All directors and executive
officers 6,000 3,500 371,483 371,631
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
-----------------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock -----------------------------
--------------------------- Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
--------------------------- -----------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- --------------------------- ----------- ------------- ------------- -------------
Arkansas Power & Light
Michael B. Bemis** - - 38,793 44,907
Donald C. Hintz** - - 40,451 50,151
Jerry D. Jackson** - - 40,290 48,148
R. Drake Keith*** - - 7,535 12,570
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden** - - 77,924 61,816
All directors and executive
officers - - 416,735 495,796
Gulf States Utilities Co.
Michael B. Bemis** - - 38,793 44,907
Frank F. Gallaher*** - - 37,958 42,616
Donald C. Hintz** - - 40,451 50,151
Jerry D. Jackson** - - 40,290 48,148
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden** - - 77,924 61,816
All directors and executive
officers - - 403,151 474,665
Louisiana Power & Light
Michael B. Bemis** - - 38,793 44,907
John J. Cordaro*** - - 3,669 11,785
Donald C. Hintz** - - 40,451 50,151
Jerry D. Jackson** - - 40,290 48,148
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden** - - 77,924 61,816
All directors and executive
officers - - 406,074 494,161
Mississippi Power & Light
Michael B. Bemis** - - 38,793 44,907
Donald C. Hintz* - - 40,451 50,151
Jerry D. Jackson** - - 40,290 48,148
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden** - - 77,924 61,816
Gerald D. McInvale** - - 37,005 39,920
Donald E. Meiners*** - - 3,328 16,546(j)
All directors and executive
officers - - 406,640 493,105
New Orleans Public Service
Inc.
Michael B. Bemis** - - 38,793 44,907
John J. Cordaro*** - - 3,669 11,785
William D. Hamilton* - - - 2,208
Jerry D. Jackson** - - 40,290 48,148
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden** - - 77,924 61,816
Gerald D. McInvale** - - 37,005 39,920
All directors and executive
officers - - 366,834 438,088
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
----------------------------------------------------------
Entergy Corporation
Preferred Stock Common Stock
-------------------------- ---------------------------
Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
-------------------------- ----------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ---------------------------- ----------- ------------ ----------- -------------
System Energy Resources, Inc.
Joseph L. Blount** - - - 2,619
Donald C. Hintz** - - 40,451 50,151
Jerry D. Jackson* - - 40,290 48,148
Edwin Lupberger** - - 83,552 111,381(h)(i)
Jerry L. Maulden* - - 77,924 61,816
Gerald D. McInvale*** - - 37,005 39,920
William J. Regan** - - - 15
All directors and executive
officers - - 279,222 319,114
Entergy Services, Inc.
Michael B. Bemis** - - 38,793 44,907
Frank F. Gallaher* - - 37,958 42,616
Donald C. Hintz* - - 40,451 50,151
Jerry D. Jackson*** - - 40,290 48,148
Edwin Lupberger*** - - 83,552 111,381(h)(i)
Jerry L. Maulden*** - - 77,924 61,816
Gerald D. McInvale*** - - 37,005 39,920
All directors and executive
officers - - 436,118 576,077
System Fuels, Inc.
Michael B. Bemis* - - 38,793 44,907
Amery J. Champagne*** - - 238 551
Kent R. Foster* - - 1,743 16,245
Frank F. Gallaher*** - - 37,958 42,616
Donald C. Hintz* - - 40,451 50,151
Gerald D. McInvale*** - - 37,005 39,920
William J. Regan - - - 15
All directors and executive
officers - - 156,188 195,975
Entergy Operations, Inc.
R.P. Barkhurst** - - - 2,927
Donald C. Hintz*** - - 40,451 50,151
Harold W. Keiser** - - 1,297 7,941
Richard J. Landy** - - 33,400 36,390
Edwin Lupberger*** - - 83,552 111,381(h)(i)
Jerry L. Maulden* - - 77,924 61,816
Gerald D. McInvale*** - - 37,005 39,920
All directors and executive
officers - - 281,204 328,487
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
-------------------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock ------------------------------
--------------------------- Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
--------------------------- ------------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- -------------------------- ----------- ----------- ------------ -------------
Entergy Enterprises, Inc.
W. F. Blount* - - 3,734 -
Lucie J. Fjeldstad* - - 2,684 -
Lawrence S. Folks** - 100 240
Robert v.d. Luft* - - 2,984 -
Edwin Lupberger*** - - 83,552 111,381(h)(i)
Gerald D. McInvale** - - 37,005 39,920
Terry L. Ogletree** - - 25,757 29,993(j)
Eugene H. Owen* - 3,500 (a) 2,392 -
J. N. Palmer* - - 15,000 -
Robert D. Pugh* - - 6,000 10,000(i)
Michael G. Thompson** - - 9,821 11,027
All directors and executive
officers - 3,500 185,295 203,268
Entergy Power, Inc.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers - - 156,135 192,715
Entergy Power Development
Corp.
Lawrence S. Folks** - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers - - 156,235 193,268
Entergy Richmond Power
Corp.
Lawrence S. Folks** - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers - - 156,235 192,561
Entergy Systems and
Service, Inc.
John L. Bosch** - -
John A. Brayman*** - -
Gerald D. McInvale*** - - 37,005 39,920
Michael G. Thompson*** - - 9,821 11,027
Paul E. Williams*** - - - -
All directors and executive
officers - - 46,826 50,947
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
As of December 31, 1995
---------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock -------------------------
------------------------- Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------- -------------------------
<S> <C> <C> <C> <C>
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ----------------------------- ----------- ---------- ----------- ------------
Entergy, S. A.
Terry L. Ogletree*** - - 25,757 29,993(j)
Claudio Onetto* - - 3 -
Alberto V. Triulzi* - - 124 618
All directors and executive
officers - - 25,884 30,611
Entergy Argentina, S. A.
Eduardo Montes De Oca* - - - -
Terry L. Ogletree*** - - 25,757 29,993(j)
Claudio Onetto* - - 3 -
Maximo J. Salvat* - - - -
Alberto V. Triulzi* - - 124 618
All directors and executive
officers - - 25,884 30,611
Entergy Argentina, S. A., Ltd.
Terry L. Ogletree*** - - 25,757 29,993(j)
Claudio Onetto* - - 3 -
Maximo J. Salvat* - - - -
Alberto V. Triulzi* - - 124 618
All directors and executive
officers - - 25,884 30,611
Entergy Transener, S. A.
Eduardo Montes De Oca* - - - -
Terry L. Ogletree*** - - 25,757 29,993(j)
Claudio Onetto* - - 3 -
Maximo J. Salvat* - - - -
Alberto V. Triulzi* - - 124 618
All directors and executive
officers - - 25,884 30,611
Varibus Corporation
Michael B. Bemis* - - 38,793 44,907
Amery J. Champagne*** - - 238 551
Kent R. Foster* - - 1,743 16,245
Frank F. Gallaher*** - - 37,958 42,616
Donald C. Hintz* - - 40,451 50,151
Gerald D. McInvale*** - - 37,005 39,920
William J. Regan** - - - 15
All directors and executive
officers - - 156,188 195,975
Prudential Oil & Gas, Inc.
Michael B. Bemis* - - 38,793 44,907
Amery J. Champagne*** - - 238 551
Kent R. Foster* - - 1,743 16,245
Frank F. Gallaher*** - - 37,958 42,616
Donald C. Hintz* - - 40,451 50,151
Gerald D. McInvale*** - - 37,005 39,920
William J. Regan** - 15
All directors and executive
officers - - 156,188 195,975
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
----------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock ---------------------------
------------------------- Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------- ---------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ---------------------------- ----------- ---------- ----------- ------------
Southern Gulf Railway Co.
Michael B. Bemis* - - 38,793 44,907
Amery J. Champagne*** - - 238 551
Kent R. Foster* - - 1,743 16,245
Frank F. Gallaher*** - - 37,958 42,616
Donald C. Hintz* - - 40,451 50,151
Gerald D. McInvale*** - - 37,005 39,920
William J. Regan** - 15
All directors and executive
officers - - 156,188 195,975
GSG&T, Inc.
Michael B. Bemis* - - 38,793 44,907
Amery J. Champagne*** - - 238 551
Kent R. Foster* - - 1,743 16,245
Frank F. Gallaher*** - - 37,958 42,616
Donald C. Hintz* - - 40,451 50,151
Gerald D. McInvale*** - - 37,005 39,920
William J. Regan** - 15
All directors and executive
officers - - 156,188 195,975
Entergy Power Asia, Ltd.
Lawrence S. Folks** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,342 193,567
Entergy Pakistan, Ltd.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,014
Entergy Power Development
International
Lawrence S. Folks** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,235 192,969
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
----------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock ---------------------------
------------------------ Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------ ---------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ----------------------------- ----------- ---------- ----------- --------------
Entergy Yacyreta
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
Entergy Power Holding I, Ltd.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,327
Entergy Power Holding II Ltd.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
Entergy Power Operations Corp.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
Entergy Power Operations
Holdings
Lawrence S. Folks** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,342 193,254
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
----------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock --------------------------
------------------------ Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------ --------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ------------------------- ----------- ---------- ----------- ------------
Entergy Power Operations
Pakistan LDC
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,014
Entergy Victoria Holding, LDC
Lawrence S. Folks*** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,342 193,254
Entergy Victoria LDC
Lawrence S. Folks*** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,342 193,254
EPG Cayman, Holding I
Lawrence S. Folks** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,342 193,268
EPG Cayman, Holding II
Lawrence S. Folks** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,342 193,254
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
-----------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock ---------------------------
------------------------- Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------- ---------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- ------------------------------- ----------- ---------- ------------- ------------
Entergy Power Marketing
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,135 192,715
Entergy Edegel I, Inc.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
EP Edegel, Inc.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
Entergy Power CBA Holding, Ltd.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
Entergy Power Development
International Holdings Inc.
Lawrence S. Folks** - - 100 240
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,235 193,268
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
As of December 31, 1995
-----------------------------------------------------
Entergy Corporation
Common Stock
Preferred Stock ---------------------------
------------------------ Amount and Nature
Amount and Nature of of Beneficial
Beneficial Ownership(b) Ownership(b)
------------------------ ---------------------------
Sole Voting Sole Voting Other
and Other and Beneficial
Investment Beneficial Investment Ownership
Name Power(c) Ownership Power(c) (d)(e)(f)(g)
- --------------------------------- ------------ ---------- ----------- -------------
Entergy Power Edesur Holding, Ltd.
Robert J. Cushman** - - - 394
Edwin Lupberger** - - 83,552 111,381(h)(i)
Gerald D. McInvale*** - - 37,005 39,920
Terry L. Ogletree*** - - 25,757 29,993(j)
Michael G. Thompson*** - - 9,821 11,027
All directors and executive
officers 156,242 193,028
</TABLE>
* Director of the respective Company
** Named Executive Officer of the respective Company
*** Officer and Director of the respective Company
(a) Stock ownership amounts refer to 6,000 shares of AP&L's $0.01 Par
Value ($25 liquidation value) Preferred Stock held by the John A.
Cooper Trust, and 3,500 shares of AP&L's $0.01 Par Value ($25
liquidation value) Preferred Stock held by Eugene H. Owen. Mr.
Cooper disclaims any personal interest in these shares.
(b) Based on information furnished by the respective individuals. The
ownership amounts shown for each individual and for all directors
and executive officers as a group do not exceed one percent of the
outstanding securities of any class of security so owned.
(c) Includes all shares that the individual has the sole power to vote
and dispose of, or to direct the voting and disposition of.
(d) Includes, for the named persons, shares of Entergy Corporation
common stock held in the Employee Stock Ownership Plan of the
registrants as follows: R.P. Barkhurst, 867 shares; Michael B.
Bemis, 767 shares; Amery J. Champagne, 373 shares; Joseph L. Blount,
810 shares; John J. Cordaro, 1,082 shares; Kent R. Foster, 45
shares; Frank F. Gallaher, 1,011 shares; William D. Hamilton, 617
shares; Donald C. Hintz, 810 shares; Jerry D. Jackson, 810 shares;
R. Drake Keith, 810 shares; Richard J. Landy, 810 shares; Edwin
Lupberger, 886 shares; Jerry L. Maulden, 856 shares; Gerald D.
McInvale, 118 shares; Donald E. Meiners, 594 shares; Michael G.
Thompson, 118 shares; and Alberto V. Triulzi, 328 shares.
(e) Includes, for the named persons, shares of Entergy Corporation
common stock held in the System Savings Plan company account as
follows: R.P. Barkhurst, 2,060 shares; Michael B. Bemis, 5,140
shares; Joseph L. Blount, 1,809 shares; Amery J. Champagne, 178
shares; John J. Cordaro, 2,003 shares; Robert J. Cushman, 394
shares; Lawrence S. Folks, 240 shares; Frank F. Gallaher, 3,930
shares; William D. Hamilton, 1,591 shares; Donald C. Hintz, 1,412
shares; Jerry D. Jackson, 2,427 shares; Harold W. Keiser, 441
shares; R. Drake Keith, 4,336 shares; Richard J. Landy 1,880 shares;
Edwin Lupberger, 6,771 shares; Jerry L. Maulden, 10,460 shares;
Gerald D. McInvale, 802 shares; Donald E. Meiners, 4,950 shares;
Terry L. Ogletree, 435 shares; William J. Regan, 15 shares; Michael
G. Thompson, 659 shares; and Alberto V. Triulzi, 290 shares.
(f) Includes, for the named persons, unvested restricted shares of
Entergy Corporation common stock held in the Equity Ownership Plan
as follows: Michael B. Bemis, 4,000 shares; John J. Cordaro, 1,200
shares; Kent R. Foster, 8,700 shares; Frank F. Gallaher, 5,175
shares; Donald C. Hintz, 5,429 shares; Jerry D. Jackson, 5,500
shares; R. Drake Keith, 250 shares; Richard J. Landy, 3,700 shares;
Edwin Lupberger, 10,900 shares; Jerry L. Maulden, 5,500 shares;
Gerald D. McInvale, 4,000 shares; Donald E. Meiners, 250 shares;
and Michael G. Thompson, 2,750 shares.
(g) Includes, for the named persons, shares of Entergy Corporation
common stock in the form of unexercised stock options awarded
pursuant to the Equity Ownership Plan as follows: Michael B. Bemis,
35,000 shares; John J. Cordaro 7,500 shares; Kent R. Foster, 7,500
shares; Frank F. Gallaher, 32,500 shares; Donald C. Hintz, 42,500
shares; Jerry D. Jackson, 39,411 shares; Harold W. Keiser, 7,500
shares; R. Drake Keith, 7,174 shares; Richard J. Landy, 30,000
shares; Edwin Lupberger, 88,824 shares; Jerry L. Maulden, 45,000
shares; Gerald D. McInvale, 35,000 shares; Donald E. Meiners,
10,000 shares; Terry L. Ogletree, 25,000 shares; and Michael G.
Thompson, 7,500 shares.
(h) Includes 1,500 shares of Entergy Corporation common stock held
jointly between Edwin Lupberger and Ms. E. H. Lupberger.
(i) Includes, for the named persons, shares of Entergy Corporation
common stock held by their spouses. The named persons disclaim any
personal interest in these shares as follows: Edwin Lupberger,
2,500 shares; Robert D. Pugh, 10,000 shares; and H. Duke
Shackleford, 3 ,950 shares.
(j) Includes, for the named persons, shares of Entergy Corporation
common stock held jointly with their spouses as follows: Don E.
Meiners, 752 shares; and Terry L. Ogletree, 4,558 shares.
Item 6 Part III (c) - Certain Relationships and Related Transactions
See Item 6 Part III (a) "Executive Compensation - Personnel
Committee Interlocks and Insider Participation" for information on
certain transactions required to be reported under this item.
During 1995, Entergy Systems and Services, Inc. (Entergy SASI)
purchased approximately $7.5 million of lighting products from Systems
and Service International, Inc. (SASI). Mr. Paul E. Williams, CEO,
President, and director of Entergy SASI, is a 35% shareholder of SASI.
Mr. Paul E. Williams' SASI shares are held in a blind trust.
The System companies do not have policies whereby transactions
involving executive officers and directors of the System are approved by
a majority of disinterested directors. However, pursuant to the Entergy
Corporation Code of Conduct, transactions involving a System company and
its executive officers must have prior approval by the next higher
reporting level of that individual, and transactions involving a System
company and its directors must be reported to the secretary of the
appropriate System company.
ITEM 6. Part III (d) - Indebtedness to System Companies
None.
ITEM 6. Part III (e) - Participation in Bonus and Sharing Arrangements
and Other Benefits
See Item 6. Part III (a).
ITEM 6. Part III (f) - Rights to Indemnity
No indemnifications have been granted.
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
(1)* CALENDAR YEAR 1995
Name of Name or Number
Company of Purpose(s) Account(s) Amount
Beneficiaries Charged
- ----------- ------------- ------------- --------- ------------
ENTERGY Democratic Building Fund Donations $121,500.00
CORPORATION National
Committee
Republican Building Fund Donations 99,000.00
National
Finance
Committee
------------
Total $220,500.00
============
* Several of the System Companies have established separate
segregated funds known as political action committees,
established pursuant to the Federal Election Campaign Act, in
soliciting employee participation in Federal, state and local
elections.
(2) CALENDAR YEAR 1995
Name of Name or Number
Company of Purpose(s) Account(s) Amount
Beneficiaries Charged
- ------------ ------------- --------------- ---------- -------------
ENTERGY U.S. Chamber Civic Activity Donations $12,000.00
CORPORATION of Commerce
Democratic Civic Activity Donations 10,000.00
Leadership
Council
NAACP Community Donations 21,127.00
Welfare
Urban League Community Donations 10,500.00
Welfare
Committee for Civic Activity Donations 18,000.00
Economic
Development
Nine Items Community Donations 28,340.00
Welfare,
Education,
Research
& Education,
and Civic
Activity
----------
Total $99,967.00
==========
AP&L Arkansas State Civic Activity Donations $145,886.00
and Local
Chamber of
Commerce
Arkansas Civic Activity Donations 30,000.00
Industrial
Association.
NAACP Community Donations 16,975.00
Welfare
Arkansas Civic Activity Donations 11,000.00
Nature
Conservancy
(2) CALENDAR YEAR 1995
Name of Name or Number
Company of Purpose(s) Account(s) Amount
Beneficiaries Charged
- ---------- ------------- -------------- --------- ---------
Six Items Community Donations 11,550.00
Welfare,
Education &
Research, Civic
Activity,
Public
Relations
-----------
Total $215,411.00
===========
GSU Greater Baton Civic Activity Donations $25,000.00
Rouge Economic
Partnership
Inc.
Baton Rouge Civic Activity Donations 25,000.00
Area
Foundation
Foundation Civic Activity Donations 25,000.00
Southwest
Louisiana
Chamber of Civic Activity Donations 12,654.55
Commerce
Capitol Fund Building Fund Donations 10,000.00
of Austin
Fifteen Items Civic Activity, Donations 25,975.00
Education,
Community
Welfare
-----------
Total $123,629.55
===========
LP&L Chamber, New Civic Activity Donations $73,301.00
Orleans
& the River
Region
MetroVision Civic Activity Donations 25,000.00
Partnership
Louisiana Civic Activity Donations 16,500.00
Association
of Business
and Industry
NAACP Civic Activity Donations 14,500.00
South Civic Activity Donations 25,000.00
Louisiana
Economic
Council
Eleven Items Public Donations 25,600.00
Relations,
Research and
Education,
Civic Activity,
Community
Welfare
-----------
Total $179,901.00
===========
MP&L NAACP Civic Activity Donations $25,000.00
Chamber of Civic Activity Donations 90,000.00
Commerce
Civic Activity Donations 25,000.00
Metropolitan
Crime
Commission
<PAGE>
(2) CALENDAR YEAR 1995
Name of Name or Number
Company of Purpose(s) Account(s) Amount
Beneficiaries Charged
- -------- -------------- --------------- ------------ -----------
Fourteen Items Civic Activity, Donations 35,700.00
Research &
Education,
Community
Welfare
-----------
Total $175,700.00
===========
NOPSI The Civic Activity Donations $102,100.00
Chamber/N.O. &
The River
Region
Louisiana Civic Activity Donations 10,000.00
Association
of Business and
Industry
New Orleans Civic Activity Donations 15,000.00
Economic
Growth
Corporation
Six Items Public Donations 8,150.00
Relations,
Research and
Education, Civic
Activity,
Community
Welfare
-----------
Total $135,250.00
===========
SYSTEM Two Items Civic Activity, Donations $15,364.85
ENERGY Public ===========
Relations,
<TABLE>
<CAPTION>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS
<S> <C> <C> <C> <C> <C>
(I)
In Effect
Serving Receiving Date of Dec. 31, 1995
Transaction Company Company Compensation Contract (Yes or No)
Fuel purchases SYSTEM FUELS AP&L $ 3,017,950 1/12/73 Yes
Fuel purchases SYSTEM FUELS LP&L $ 8,680,695 1/12/73 Yes
Fuel purchases SYSTEM FUELS MP&L $ 4,273,838 1/12/73 Yes
Fuel purchases SYSTEM FUELS NOPSI $ 1,014,455 1/12/73 Yes
Miscellaneous AP&L GSU $ 739 N/A N/A
transmission and
distribution
station equipment
Miscellaneous AP&L MPL $ 58,774 N/A N/A
transmission and
distribution
station equipment
Miscellaneous GSU LP&L $ 64,104 N/A N/A
transmission and
distribution
station equipment
Miscellaneous LP&L AP&L $ 88,100 N/A N/A
transmission and
distribution
station equipment
Miscellaneous LP&L GSU $ 49,811 N/A N/A
transmission and
distribution
station equipment
Miscellaneous MP&L AP&L $ 1,133,485 N/A N/A
transmission and
distribution
station equipment
Certain materials SYSTEM FUELS AP&L $32,698,982 6/15/78 Yes
& services
required for
fabrication of
Nuclear Fuel
Certain materials SYSTEM FUELS LP&L $40,417,903 6/15/78 Yes
&
services required
for fabrication
of Nuclear Fuel
Certain materials SYSTEM FUELS SERI $11,635,372 6/15/78 Yes
& services
required for
fabrication of
Nuclear Fuel
Microwave System MP&L SYSTEM ENERGY $ 33,275 6/06/90* Yes
Services
Miscellaneous AP&L LP&L $ 324,516 N/A N/A
Spare Parts
Inventory
</TABLE>
*Original contract dated June 21, 1974, modified December 16, 1986 and
June 6, 1990.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Miscellaneous AP&L MP&L $ 289,259 N/A N/A
Spare Parts
Inventory
Miscellaneous AP&L NOPSI $ 1,064 N/A N/A
Spare Parts
Inventory
Miscellaneous AP&L GSU $ 75,781 N/A N/A
Spare Parts
Inventory
Miscellaneous LP&L AP&L $ 109,365 N/A N/A
Spare Parts
Inventory
Miscellaneous LP&L MP&L $ 277,340 N/A N/A
Spare Parts
Inventory
Miscellaneous LP&L NOPSI $1,837,402 N/A N/A
Spare Parts
Inventory
Miscellaneous LP&L GSU $ 84,861 N/A N/A
Spare Parts
Inventory
Miscellaneous MP&L AP&L $ 462,499 N/A N/A
Spare Parts
Inventory
Miscellaneous MP&L LP&L $ 672,766 N/A N/A
Spare Parts
Inventory
Miscellaneous MP&L NOPSI $ 2,848 N/A N/A
Spare Parts
Inventory
Miscellaneous MP&L GSU $ 215,824 N/A N/A
Spare Parts
Inventory
Miscellaneous NOPSI AP&L $ 1,535 N/A N/A
Spare Parts
Inventory
Miscellaneous NOPSI LP&L $ 389,794 N/A N/A
Spare Parts
Inventory
Miscellaneous NOPSI MP&L $ 5,457 N/A N/A
Spare Parts
Inventory
Miscellaneous NOPSI GSU $ 6,689 N/A N/A
Spare Parts
Inventory
Miscellaneous GSU AP&L $ 40,522 N/A N/A
Spare Parts
Inventory
Miscellaneous GSU LP&L $ 81 N/A N/A
Spare Parts
Inventory
Miscellaneous GSU MP&L $ 13,042 N/A N/A
Spare Parts
Inventory
Miscellaneous GSU NOPSI $ (1,051) N/A N/A
Spare Parts
Inventory
</TABLE>
The following contracts were in effect as of December 31, 1995
- - Contract for the purchase of fuel oil between System Fuels and certain
System Companies dated January 12, 1973.
- - Contract for the purchase of nuclear fuel between System Fuels and
certain System Companies dated June 15, 1978.
- - Contract for the maintenance of the microwave system between MP&L and
System Energy dated December 16, 1986.
ITEM 8. Part II
Reference is made to information under Item 6, Part III(c).
ITEM 8. Part III
None.
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
(a) In December 1992, Entergy Corporation purchased a 50%
interest in a 250 MW gas-fired, combined cycle independent
power plant in Richmond, Virginia. The plant is jointly
owned and operated by the Enron Power Corporation, a
developer of independent power projects. The plant owners
have a 25 year contract to sell electricity to the Virginia
Electric & Power Company. Entergy owns its interest in the
plant indirectly through a subsidiary created as an EWG
holding company under the provisions of the Energy Act.
This company, Entergy Power Development Corporation, has
formed a second EWG as a subsidiary, Entergy Richmond Power
Corporation, which directly owns the interest in the
Richmond facility. Entergy's investment in the project
totals approximately $12.5 million.
In November 1992, Entergy Corporation's subsidiary,
Entergy, S.A., participated in a consortium with other
nonaffiliated companies that allowed it to acquire a 6%
interest in Central Costanera, S.A., an Argentina steam
electric generating facility consisting of seven natural gas
and oil fired generating units, with total installed
capacity of 1,260 MW. Central Costanera, S. A. is an EWG
under the provisions of the Energy Act. Entergy
Corporation's initial investment to acquire its 6% interest
in Central Costanera, S.A. was approximately $10.5 million.
In August 1995, Entergy, S.A. was granted EWG status.
In January 1993, Entergy Corporation, through its
subsidiary, Entergy Power Edesur Holding, Ltd., holds a 10%
interest in Distrilec, S.A., an Argentina Company acquired a
privatized 51% interest in Edesur S.A., an electric
distribution company providing service to Buenos Aries,
Argentina. Edesur, S.A. is a FUCO under the provisions of
the Energy Act. Entergy Corporation's initial investment to
acquire its indirect 5.1% in Edesur, S.A. was approximately
$58.2 million.
In July 1993, Entergy Corporation, through a subsidiary,
Entergy Transener, S.A., participated in a consortium with
other nonaffiliated companies that acquired a 65% interest
in a foreign transmission system providing service in the
country of Argentina. Entergy Transener, S.A. is a FUCO
under the provisions of the Energy Act. Entergy
Corporation's initial investment to acquire its indirect
9.75% interest in Transener, S. A. was $18.5 million.
In August 1994, Entergy Corporation, through a wholly
owned subsidiary of Entergy Power Development Corporation,
Entergy Pakistan, Ltd., acquired a 10% equity interest in
Hub River Company, Ltd., which owns a 1,292 MW steam
electric generation facility under development in Pakistan.
Entergy Pakistan, Ltd. is an EWG under provisions of the
Energy Act. Entergy Corporation's initial investment to
acquire its indirect 10% interest in Hub River Company,
Ltd., was $50.2 million.
In August 1994, Entergy Corporation established through
its wholly owned subsidiary, Entergy Power Development
Corporation, a wholly owned subsidiary Entergy Power Asia,
Ltd. This subsidiary is an EWG under the provisions of the
Energy Act and has been established to hold Entergy's
investments in the Pacific Rim. To date, Entergy Power
Asia, Ltd. does not have any material investments.
In April 1995, Entergy Corporation established through
its wholly owned subsidiary, Entergy Power Development
Corporation, a wholly owned subsidiary Entergy Power Holding
I, Ltd. This subsidiary is an EWG under the provisions of
the Energy Act and has been established to own 100% of
Entergy Power CBA Holding Ltd. which in turn purchased a
7.8% interest in Central Buenos Aires, S.A. Central Buenos
Aires, S.A. owns a power plant in Buenos Aires, Argentina.
Entergy's equity position in this investment currently
totals $3.6 million.
In November 1995, Entergy Corporation, through a wholly
owned subsidiary of Entergy Power Development Corporation,
EP Edegel, Inc., acquired a 34.7% interest in a consortium,
Generandes, Co., which purchased 60% of Edegel, S.A., a
company that owns 5 hydroelectric generating stations
(totaling 539 MW) and 1 thermal generating station (154 MW).
EP Edegel, Inc. is an EWG under the provisions of the Energy
Act. Entergy Corporation's investment in Generandes, Co.
totals $167.4 million.
The business address of Entergy Power Development and
its subsidiaries, Entergy Transener S. A., and Entergy S.A.,
is:
900 South Shackleford Road
Suite 210
Little Rock, AR 72211
Entergy Corporation owns, indirectly through Entergy
Power Development Corporation, 100% of the outstanding
capital stock of Entergy Power Operations Holding Ltd.,
Entergy Power Operations Corporation, Entergy Crown Vista I,
Entergy Crown Vista III, and Entergy Crown Vista IV, each of
which has qualified for exemption from EWG status pursuant
to the Energy Act. However, such companies are minimally
capitalized, and none of such companies currently owns any
facilities used for the generation of electric energy for
sale. Accordingly, no financial information for such
companies is provided under Exhibit I.
Entergy Corporation owns 100% of the outstanding capital
stock of Entergy Power Marketing which has qualified for
exemption from EWG status pursuant to the Energy Act.
However, such company is minimally capitalized and such
company does not own any facilities used for the generation
of electric energy for sale. Accordingly, no financial
information for such companies is provided under Exhibit I.
Entergy Corporation owns 100% of the outstanding capital
stock of Entergy Power Development International Holdings
Inc., Entergy Power Development International Corporation
and its wholly owned subsidiaries, EPG Cayman Holding I, EPG
Cayman Holding II, Entergy Victoria LDC, and Entergy
Victoria Holdings LDC, each of which has qualified for
exemption from FUCO status pursuant to the Energy Act.
However, such companies were not capitalized in 1995 and
such companies did not own any facilities used for the
generation of electric energy for sale. Accordingly, no
financial information for such companies is provided under
Exhibit I.
Part I(b); Part I(c); and Part I(d) are being filed pursuant
to Rule 104.
ITEM 9. Part II
See Exhibit H
ITEM 9. Part III is being filed pursuant to Rule 104.
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Financial statements and financial statement schedules filed as
part of the annual report, pursuant to requirements of the Public
Utility Holding Company Act of 1935.
FINANCIAL STATEMENTS PAGE NO.
*Independent Accountants' Consent S-1
Entergy Corporation and Subsidiaries:
*Consolidating Statement of Income (Loss) for the Year S-2
Ended December 31, 1995
*Consolidating Statement of Cash Flows for the Year Ended S-4
December 31, 1995
*Consolidating Balance Sheet as of December 31, 1995 S-6
*Consolidating Statement of Retained Earnings for the Year S-10
Ended December 31, 1995
GSU Corporation and Subsidiaries:
*Consolidating Statement of Income (Loss) for the Year S-12
Ended December 31, 1995
*Consolidating Statement of Cash Flows for the Year Ended S-13
December 31, 1995
*Consolidating Balance Sheet as of December 31, 1995 S-14
*Consolidating Statement of Retained Earnings for the Year S-16
Ended December 31, 1995
Statutory Subsidiary, accounted for as an equity investment, the
Accounts of which are not included in the foregoing Consolidating
Statements of Entergy Corporation and Subsidiaries:
The Arklahoma Corporation:
*Statements of Operations and Statements of Retained
Earnings, Years Ended November 30, 1995 and 1994 S-18
*Statements of Cash Flows, Years Ended
November 30, 1995 and 1994 S-19
*Balance Sheets, November 30, 1995 and 1994 S-20
*Notes to Financial Statements, November 30, 1995 and 1994 S-21
* Letter, dated April 25, 1996, regarding payment of nuclear
liability insurance premiums by Entergy System companies.
The following financial information indicated by an asterisk is
filed herewith. The balance of the financial information has
heretofore been filed with the Securities and Exchange Commission in
the file numbers indicated and is incorporated herein by reference.
ENTERGY CORPORATION
Independent Accountants' Report and Notes to Consolidated
Financial Statements of Entergy Corporation (Reference is made to
information under the headings "Report of Independent Accountants" and
"Notes to Consolidated Financial Statements," contained in Entergy
Corporation's 1995 Financial Statements included in the Form 10-K for
the year ended December 31, 1995, in File No. 1-11299).
Financial Statement Schedules of Entergy Corporation (Referred to
in Item 14(a)2 to Form 10-K for the year ended December 31, 1995, in
File No. 1-11299 and included in such Form 10-K).
AP&L
Independent Accountants' Report and Notes to Financial Statements
of AP&L (Reference is made to information under the headings "Report of
Independent Accountants" and "Notes to Financial Statements" contained
in AP&L's 1995 Financial Statements included in the Form 10-K for the
year ended December 31, 1995, in File No. 1-10764).
Financial Statement Schedules of AP&L (Referred to in Item 14(a)2
to Form 10-K for the year ended December 31, 1995, in File No. 1-10764
and included in such Form 10-K).
GSU
Independent Accountants' Report and Notes to Financial Statements
of GSU (Reference is made to information under the headings "Report of
Independent Accountants" and "Notes to Financial Statements" contained
in GSU's 1995 Financial Statements included in the Form 10-K for the
year ended December 31, 1995, in File No. 1-2703).
Financial Statement Schedules of GSU (Referred to in Item 14(a)2
to Form 10-K for the year ended December 31, 1995, in File No. 1-2703
and included in such Form 10-K).
LP&L
Independent Accountants' Report and Notes to Financial Statements
of LP&L (Reference is made to information under the headings "Report of
Independent Accountants" and "Notes to Financial Statements" contained
in LP&L's 1995 Financial Statements included in the Form 10-K for the
year ended December 31, 1995, in File No. 1-8474).
Financial Statement Schedules of LP&L (Referred to in Item 14(a)2
to Form 10-K for the year ended December 31, 1995, in File No. 1-8474
and included in such Form 10-K).
MP&L
Independent Accountants' Report and Notes to Financial Statements
of MP&L (Reference is made to information under the headings "Report of
Independent Accountants" and "Notes to Financial Statements," contained
in MP&L's 1995 Financial Statements included in the Form 10-K for the
year ended December 31, 1995, in File No. 0-320).
Financial Statement Schedules of MP&L (Referred to in Item 14(a)2
to Form 10-K for the year ended December 31, 1995, in File No. 0-320
and included in such Form 10-K).
NOPSI
Independent Accountants' Report and Notes to Financial Statements
of NOPSI (Reference is made to information under the headings "Report
of Independent Accountants" and "Notes to Financial Statements,"
contained in NOPSI's 1995 Financial Statements included in the Form 10-
K for the year ended December 31, 1995, in File No. 0-5807).
Financial Statement Schedules of NOPSI (Referred to in Item 14(a)2
to Form 10-K for the year ended December 31, 1995, in File No. 0-5807
and included in such Form 10-K).
SYSTEM ENERGY
Independent Accountants' Report and Notes to Financial Statements
of System Energy (Reference is made to information under the headings
"Report of Independent Accountants" and "Notes to Financial
Statements," contained in System Energy's 1995 Financial Statements
included in the Form 10-K for the year ended December 31, 1995, in File
No. 1-9067).
Financial Statement Schedules of System Energy (Referred to in
Item 14(a)2 to Form 10-K for the year ended December 31, 1995, in File
No. 1-9067 and included in such Form 10-K).
ENTERGY CORPORATION SYSTEM COMPANIES
A-1 Entergy Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995 (Incorporated herein by reference from File No.
1-11299).
A-2 AP&L's Annual Report on Form 10-K for the year ended December 31,
1995 (Incorporated herein by reference from File No. 1-10764).
A-3 GSU's Annual Report on Form 10-K for the year ended December 31,
1995 (Incorporated herein by reference from File No. 1-2703).
A-4 LP&L's Annual Report on Form 10-K for the year ended December 31,
1995 (Incorporated herein by reference from File No. 1-8474).
A-5 MP&L's Annual Report on Form 10-K for the year ended December 31,
1995 (Incorporated herein by reference from File No. 0-320).
A-6 NOPSI's Annual Report on Form 10-K for the year ended December
31, 1995 (Incorporated herein by reference from File No. 0-5807).
A-7 System Energy's Annual Report on Form 10-K for the year ended
December 31, 1995 (Incorporated herein by reference from File No. 1-
9067).
ENTERGY CORPORATION
B-1(a) Certificate of Incorporation of Entergy Corporation as executed
December 31, 1993 (Filed as Exhibit A-1(a) to Rule 24 Certificate in
File No. 70-8059).
B-1(b) By-Laws of Entergy Corporation as executed August 25, 1992
(Filed as Exhibit A-2(a) to Rule 24 Certificate in File No. 70-8059).
AP&L
B-2(a) Amended and Restated Articles of Incorporation of AP&L, as
amended as of May 27, 1992 (Filed as Exhibit 4(c) to Form S-3 in File
No. 33-50289).
B-2(b) By-Laws of AP&L, as amended as of May 5, 1994 and currently in
effect (Filed as Exhibit 3(d) to Form 10-Q for the quarterly period
ended June 30, 1994 in File No. 1-10764).
ENTERGY ENTERPRISES
B-3(a) Articles of Incorporation of Enterprises (formerly Electec)
(Filed as Exhibit B-4(a) to Form U5S for the year ended December 31,
1983).
B-3(b) Amendment of Articles of Incorporation of Enterprises, as
executed July 27, 1992 (Filed as Exhibit A-5 to Form U-1 in File No. 70-
8002).
B-3(c) Amendment of Articles of Incorporation of Enterprises, as
executed September 16, 1992 (Filed as Exhibit A-4 to Form U-1 in File
No. 70-8002).
B-3(d) By-Laws of Enterprises, as amended as of July 17, 1990 and
currently in effect (Filed as Exhibit A-6(a) to Form U-1 in File No. 70-
7947).
LP&L
B-4(a) Restated Articles of Incorporation of LP&L, as amended as of
July 21, 1994 (Filed as Exhibit 3(a) to Form 10-Q for the quarterly
period ended June 30, 1994 in File No. 1-8474).
B-4(b) By-Laws of LP&L, as amended as of January 23, 1984 and currently
in effect (Filed as Exhibit A-4 to Form U-1 in File No. 70-6962).
MP&L
*B-5(a) Restated Articles of Incorporation of MP&L, as amended as of
March 6, 1996.
B-5(b) By-Laws of MP&L, as amended as of April 5, 1995 and currently
in effect (Filed as Exhibit 3(ii)f to Form 10-K for the year ended
December 31, 1995 in File No. 0-320).
NOPSI
B-6(a) Restated Articles of Incorporation of NOPSI, as amended as of
July 21, 1994 (Filed as Exhibit 3(c) to Form 10-Q for the quarterly
period ended June 30, 1994 in File No. 0-5807).
B-6(b) By-Laws of NOPSI, as amended as of May 5, 1994 and currently in
effect (Filed as Exhibit 3(g) to Form 10-Q for the quarterly period
ended June 30, 1994 in File No. 0-5807).
SYSTEM ENERGY
B-7(a) Amended and Restated Articles of Incorporation of System Energy,
as executed April 28, 1989 (Filed as Exhibit A-1(a) to Form U-1 in File
No. 70-5399).
B-7(b) By-Laws of System Energy, as executed May 4, 1989 and currently
in effect (Filed as Exhibit A-2(a) to Form U-1 in File No. 70-5399).
ENTERGY SERVICES
B-8(a) Certificate of Incorporation of Entergy Services, as executed
May 5, 1989 (Filed as Exhibit A-1 in File No. 37-63).
B-8(b) By-Laws of Entergy Services, as amended as of May 13, 1991 and
currently in effect (Filed as Exhibit B-8(b) to Form U5S for the year
ended December 31, 1994).
SYSTEM FUELS
B-9(a) Articles of Incorporation of System Fuels, as executed January
3, 1972 (Filed as Exhibit A-1 to Form U-1 in File No. 70-5015).
B-9(b) By-Laws of System Fuels, as amended as of December 1, 1985 and
currently in effect (Filed as an Exhibit to Form U5S for the year ended
December 31, 1982).
ENTERGY OPERATIONS
B-10(a) Restated Certificate of Incorporation of Entergy Operations,
effective June 8, 1990 (Filed as Exhibit A-1(b) to Rule 24 Certificate
in File No. 70-7679).
B-10(b) By-Laws of Entergy Operations, as amended as of June 6, 1990
and currently in effect (Filed as Exhibit A-2(b) to Rule 24 Certificate
in File No. 70-7679).
ENTERGY POWER
B-11(a) Restated Certificate of Incorporation of Entergy Power
effective August 17, 1990 (Filed as Exhibit A-1(b) to Rule 24
Certificate in File No. 70-7684).
B-11(b) By-Laws of Entergy Power, as amended as of October 28, 1993
and currently in effect (Filed as Exhibit B-11(b) to Form U5S for the
year ended December 31, 1994).
ENTERGY S.A.
B-12(a) Deed of Incorporation of Entergy S.A. (Filed as Exhibit B-
12(a) to Form U5S for the year ended December 31, 1992).
B-12(b) Deed of Entergy S.A. (Filed as Exhibit B-12(b) to Form U5S
for the year ended December 31, 1992).
ENTERGY ARGENTINA S.A.
B-13(a) Articles of Incorporation of Entergy Argentina, S.A. (Filed
as Exhibit A-1 to Form U-1 in File No. 70-8010).
B-13(b) By-Laws of Entergy Argentina, S.A. (Filed as Exhibit A-2 to
Form U-1 in File No. 70-8010).
ENTERGY POWER DEVELOPMENT
B-14(a) Certificate of Incorporation of Entergy Power Development
Corporation, as executed December 9, 1992 (Filed as Exhibit B-14(a) to
Form U5S for the year ended December 31, 1992).
B-14(b) By-Laws of Entergy Power Development Corporation, as amended
as of October 28, 1993 and currently in effect (Filed as Exhibit B-
14(b) to Form U5S for the year ended December 31, 1994).
ENTERGY RICHMOND POWER
B-15(a) Certificate of Incorporation of Entergy Richmond Power
Corporation, as executed December 9, 1992 (Filed as Exhibit B-15(a) to
Form U5S for the year ended December 31, 1992).
B-15(b) By-Laws of Entergy Richmond Power Corporation, as executed
October 28, 1993 and currently in effect (Filed as Exhibit B-15(b) to
Form U5S for the year ended December 31, 1994).
GSU
B-16(a) Restated Articles of Incorporation, as amended as of May 28,
1993 of Gulf States (Filed as Exhibit A-11 to Form U-1 in File No. 70-
8059).
B-16(b) Statement of Resolution amending Restated Articles of
Incorporation of Gulf States establishing terms of new Preference Stock
(Filed as Exhibit A-11(a) to Form U-1 in File No. 70-8059).
B-16(c) By-Laws of Gulf States, as amended as of May 5, 1994 and
currently in effect (Filed as Exhibit 3(e) to Form 10-Q for the
quarterly period ended June 30, 1994 in File No. 1-2703).
VARIBUS
B-17(a) Charter (Articles of Association) and Amendments thereto of
Varibus Corporation, as executed March 23, 1970 (Filed as Exhibit B-
17(a) to Form U5B).
B-17(b) By-Laws of Varibus Corporation, as executed February 28, 1994
and currently in effect (Filed as Exhibit B-17(b) to Form U5B).
POG
B-18(a) Charter (Articles of Association) and Amendments thereto of
Prudential, Oil and Gas, Inc., as executed October 16, 1962 (Filed as
Exhibit B-18(a) to Form U5B).
B-18(b) By-Laws of Prudential, Oil and Gas, Inc., as executed
February 28, 1994 and currently in effect (Filed as Exhibit B-18(b) to
Form U5B).
GSG&T
B-19(a) Charter (Articles of Association) and Amendments thereto of
GSG&T, Inc., as executed May 15, 1987 (Filed as Exhibit B-19(a) to Form
U5B).
B-19(b) By-Laws of GSG&T, Inc., as executed February 28, 1994 and
currently in effect (Filed as Exhibit B-19(b) to Form U5B).
SOUTHERN GULF
B-20(a) Charter (Articles of Association) and Amendments thereto of
Southern Gulf Railway Company, as executed May 6, 1993 (Filed as
Exhibit B-20(a) to Form U5B).
B-20(b) By-Laws of Southern Gulf Railway Company, as executed
February 28, 1994 and currently in effect (Filed as Exhibit B-20(b) to
Form U5B).
ENTERGY YACYRETA I, INC.
B-21(a) Certificate of Incorporation of Entergy Yacyreta I, Inc., as
executed August 2, 1994 (Filed as Exhibit B-21(a) to Form U5S for the
year ended December 31, 1994).
B-21(b) By-Laws of Entergy Yacyreta I, Inc. as executed August 2,
1994 and currently in effect (Filed as Exhibit B-21(b) to Form U5S for
the year ended December 31, 1994).
ENTERGY ARGENTINA S. A. Ltd.
B-22(a) Articles of Association of Entergy Argentina, S. A. Ltd., as
of February 9, 1995 (Filed as Exhibit B-22(a) to Form U5S for the year
ended December 31, 1994).
B-22(b) Memorandum of Association of Entergy Argentina, S.A. Ltd., as
of February 9, 1995 (Filed as Exhibit B-22(b) to Form U5S for the year
ended December 31, 1994).
ENTERGY PAKISTAN LTD.
*B-23(a) Certificate of Incorporation of Entergy Pakistan, Ltd., as of
August 19, 1994.
*B-23(b) By-Laws of Entergy Pakistan, Ltd.
ENTERGY POWER ASIA, LTD.
*B-24(a) Articles of Association of Entergy Power Asia, Ltd., as of
June 30, 1994.
*B-24(b) Memorandum of Association of Entergy Power Asia, Ltd., as of
April 21, 1994.
ENTERGY POWER HOLDING I, LTD.
*B-25(a) Articles of Association of Entergy Power Holding I, Ltd., as
of April 6, 1995.
*B-25(b) Memorandum of Association of Entergy Power Holding I, Ltd.,
as of April 6, 1995.
EP EDEGEL, INC.
*B-26(a) Articles of Association of EP Edegel, Inc., as of June 30,
1994.
*B-26(b) By-Laws of EP Edegel, Inc.
ENTERGY CORPORATION
C- 1(a) See C-2 through C-8(k) below for instruments defining the
rights of holders of long-term debt of AP&L, GSU, LP&L, MP&L, NOPSI and
System Energy.
C- 1(b) Credit Agreement dated as of October 3, 1989, between System
Fuels and The Yasuda Trust and Banking Co., Ltd., New York Branch, as
agent (Filed as Exhibit B-1(c) to Rule 24 Certificate in File No. 70-
7668).
C- 1(c) First Amendment, dated as of March 1, 1992, to Credit
Agreement, dated as of October 3, 1989, between System Fuels and The
Yasuda Trust and Banking Co., Ltd., New York Branch, as agent (Filed as
Exhibit 4(a)5 to Form 10-K for the year ended December 31, 1991 in File
No. 1-3517).
C- 1(d) Second Amendment, dated as of September 30, 1992, to Credit
Agreement, dated as of October 3, 1989, between System Fuels and The
Yasuda Trust and Banking Co., Ltd., New York Branch, as agent (Filed as
Exhibit 4(a)6 to Form 10-K for the year ended December 31, 1992 in File
No. 1-3517).
C- 1(e) Security Agreement, dated as of October 3, 1989, as amended,
between System Fuels and The Yasuda Trust and Banking Co., Ltd., New
York Branch, as agent (Filed as Exhibit B-3(c) to Rule 24 Certificate,
dated October 6, 1989, in File No. 70-7668), as amended by First
Amendment to Security Agreement, dated as of March 14, 1990 (Filed as
Exhibit A to Rule 24 Certificate, dated March 7, 1990, in File No. 70-
7668).
C- 1(f) Consent and Agreement, dated as of October 3, 1989, among
System Fuels, The Yasuda Trust and Banking Co., Ltd., New York Branch,
as agent, AP&L, LP&L, and System Energy (Filed as Exhibit B-5(c) to
Rule 24 Certificate, dated October 6, 1989, in File No. 70-7668).
C-1(g) Credit Agreement, dated as of October 10, 1995, among Entergy,
the Banks (Bank of America, National Trust & Savings Association, The
Bank of New York, Chemical Bank, Citibank, N.A., Union Bank of
Switzerland, ABN AMRO Bank N.V., the Bank of Nova Scotia, Canadian
Imperial Bank of Commerce, Bank N.A., First National Bank of Commerce
and Whitney National Bank) and Citibank, N.A., as Agent (Exhibit B to
Rule 24 Certificate dated October 20, 1995 in File No. 70-8149).
*C-1(h) Credit Agreement, dated as of November 27, 1995, among EP Edegel,
Inc., Union Bank of Switzerland, Houston Agency and Union Bank of
Switzerland, Agent (the "Union Bank of Switzerland Credit Agreement"),
as amended by First Amendment, dated as of March 12, 1996, among EP
Edegel, Inc., Union Bank of Switzerland, Houston Agency and Union Bank
of Switzerland, as Agent.
*C-1(i) Guaranty and Guaranty Agreement, each dated as of November 27,
1995, by Entergy Enterprises, Inc. ("EEI") of amounts payable by EP Edegel,
Inc. pursuant to Union Bank of Switzerland Credit Agreement (the "EEI
Guaranty"), each as amended by First Amendment, dated as of March 12,
1996 between EEI and Union Bank of Switzerland.
*C-1(j) Guaranty and Guaranty Agreement, each dated as of November 27,
1995, by Entergy Corporation to Union Bank of Switzerland, as Agent, of
payment and performance of the EEI Guaranty, each as amended by the First
Amendment, dated as of March 12, 1996, between Entergy Corporation and
Union Bank of Switzerland, as Agent.
*C-1(k) Guaranty of EEI dated October 12, 1995 ("EEI Guaranty dated October 12,
1995"), of amounts payable by EP Edegel, Inc. to reimburse Union Bank
of Switzerland for drawings on Letter of Credit in amount of $10
million (reduced to $6.94 million effective November 27, 1995).
*C-1(l) Guaranty of Entergy Corporation dated October 12, 1995, of EEI's
payment and performance under EEI Guaranty dated October 12, 1995.
*C-1(m) Letter of Credit and Liquidity Agreement, dated as of December 28,
1995, among Entergy Power Development International Corporation,
various banks, Swiss Bank Corporation, New York Branch, as Issuing Bank
and Swiss Bank Corporation, New York Branch, as Agent ("Letter of
Credit and Liquidity Agreement"), as amended by First Amendment to
Letter of Credit Agreement, dated as of March 1, 1996, among Entergy
Power Development International Corporation, various banks, Swiss Bank
Corporation, New York Branch, as Issuing Bank and Swiss Bank
Corporation, New York Branch, as Agent.
*C-1(n) Guaranty, dated as of December 28, 1995, of Entergy Corporation, of
payment of Entergy Power Development International Corporation's
obligations under Letter of Credit and Liquidity Agreement, as amended
by First Amendment to Guaranty, dated as of March 1, 1996, between
Entergy Corporation and Swiss Bank Corporation, New York Branch.
*C-1(o) Share Sale Agreement [Revised] of December 12, 1995, relating to
acquisition of CitiPower Limited, among State Electricity Commission of
Victoria, the State of Victoria, Entergy Victoria LDC, Entergy Victoria
Holding LDC and Entergy Corporation (Exhibit C-1(o) is being filed pursuant
to Rule 104.).
*C-1(p) Multi-Option Syndicated Facility Agreement, dated as of January
5, 1996, among CitiPower Limited as Borrower, Commonwealth Bank of
Australia as Facility Agent, Bank of America N.T. & S.A. as Arranger,
and Commonwealth Bank of Australia as Security Trustee.
*C-1(q) Undertaking Agreement, dated as of March 7, 1996, of Entergy
Corporation to Commonwealth Bank of Australia as Facility-Agent, of
CitiPower Limited's obligations up to maximum of $7,367,000 under the
Multi-Option Syndicated Facility Agreement.
AP&L
*C- 2 Mortgage and Deed of Trust, as amended by fifty-three
Supplemental Indentures (Filed, respectively, as the exhibits and in
the file numbers indicated: 7(d) in 2-5463 (Mortgage); 7(b) in 2-7121
(First); 7(c) in 2-7605 (Second); 7(d) in 2-8100 (Third); 7(a)-4 in 2-
8482 (Fourth); 7(a)-5 in 2-9149 (Fifth); 4(a)-6 in 2-9789 (Sixth); 4(a)-
7 in 2-10261 (Seventh); 4(a)-8 in 2-11043 (Eighth); 2(b)-9 in 2-11468
(Ninth); 2(b)-10 in 2-15767 (Tenth); D in 70-3952 (Eleventh); D in 70-
4099 (Twelfth); 4(d) in 2-23185 (Thirteenth); 2(c) in 2-24414
(Fourteenth); 2(c) in 2-25913 (Fifteenth); 2(c) in 2-28869 (Sixteenth);
2(d) in 2-28869 (Seventeenth); 2(c) in 2-35107 (Eighteenth); 2(d) in 2-
36646 (Nineteenth); 2(c) in 2-39253 (Twentieth); 2(c) in 2-41080
(Twenty-first); C-1 to Rule 24 Certificate in 70-5151 (Twenty-second);
C-1 to Rule 24 Certificate in 70-5257 (Twenty-third); C to Rule 24
Certificate in 70-5343 (Twenty-fourth); C-1 to Rule 24 Certificate in
70-5404 (Twenty-fifth); C to Rule 24 Certificate in 70-5502 (Twenty-
sixth); C-1 to Rule 24 Certificate in 70-5556 (Twenty-seventh); C-1 to
Rule 24 Certificate in 70-5693 (Twenty-eighth); C-1 to Rule 24
Certificate in 70-6078 (Twenty-ninth); C-1 to Rule 24 Certificate in 70-
6174 (Thirtieth); C-1 to Rule 24 Certificate in 70-6246 (Thirty-first);
C-1 to Rule 24 Certificate in 70-6498 (Thirty-second); A-4b-2 to Rule
24 Certificate in 70-6326 (Thirty-third); C-1 to Rule 24 Certificate in
70-6607 (Thirty-fourth); C-1 to Rule 24 Certificate in 70-6650 (Thirty-
fifth); C-1 to Rule 24 Certificate, dated December 1, 1982, in 70-6774
(Thirty-sixth); C-1 to Rule 24 Certificate, dated February 17, 1983, in
70-6774 (Thirty-seventh); A-2(a) to Rule 24 Certificate, dated December
5, 1984, in 70-6858 (Thirty-eighth); A-3(a) to Rule 24 Certificate in
70-7127 (Thirty-ninth); A-7 to Rule 24 Certificate in 70-7068
(Fortieth); A-8(b) to Rule 24 Certificate, dated July 6, 1989, in 70-
7346 (Forty-first); A-8(c) to Rule 24 Certificate, dated February 1,
1990, in 70-7346 (Forty-second); 4 to Form 10-Q for the quarter ended
September 30, 1990, in 1-10764 (Forty-third); A-2(a) to Rule 24
Certificate, dated November 30, 1990, in 70-7802 (Forty-fourth); and A-
2(b) to Rule 24 Certificate, dated January 24, 1991, in 70-7802 (Forty-
fifth); and 4(d)(2) in 33-54298 (Forty-sixth) 4(c)(2) to Form 10-K for
the year ended December 31, 1992 in 1-10764 (Forty-seventh); 4(b) to
Form 10-Q for the quarter ended June 30, 1993 in 1-10764 (Forty-
eighth); 4(c) to Form 10-Q for the quarter ended June 30, 1993 in 1-
10764 (Forty-ninth); 4(b) to Form 10-Q for the quarter ended September
30, 1993 in 1-10764 (Fiftieth); 4(c) to Form 10-Q for the quarter ended
September 30, 1993 in 1-10764 (Fifty-first); 4(a) to Form 10-Q for the
quarter ended June 30, 1994 (Fifty-second); and (Fifty-third)).
LP&L
C- 4(a) Mortgage and Deed of Trust, as amended by fifty-one
Supplemental Indentures (Filed, respectively, as the exhibits and in
the file numbers indicated: 7(d) in 2-5317 (Mortgage); 7(b) in 2-7408
(First); 7(c) in 2-8636 (Second); 4(b)-3 in 2-10412 (Third); 4(b)-4 in
2-12264 (Fourth); 2(b)-5 in 2-12936 (Fifth); D in 70-3862 (Sixth); 2(b)-
7 in 2-22340 (Seventh); 2(c) in 2-24429 (Eighth); 4(c)-9 in 2-25801
(Ninth); 4(c)-10 in 2-26911 (Tenth); 2(c) in 2-28123 (Eleventh); 2(c)
in 2-34659 (Twelfth); C to Rule 24 Certificate in 70-4793 (Thirteenth);
2(b)-2 in 2-38378 (Fourteenth); 2(b)-2 in 2-39437 (Fifteenth); 2(b)-2
in 2-42523 (Sixteenth); C to Rule 24 Certificate in 70-5242
(Seventeenth); C to Rule 24 Certificate in 70-5330 (Eighteenth); C-1 to
Rule 24 Certificate in 70-5449 (Nineteenth); C-1 to Rule 24 Certificate
in 70-5550 (Twentieth); A-6(a) to Rule 24 Certificate in 70-5598
(Twenty-first); C-1 to Rule 24 Certificate in 70-5711 (Twenty-second);
C-1 to Rule 24 Certificate in 70-5919 (Twenty-third); C-1 to Rule 24
Certificate in 70-6102 (Twenty-fourth); C-1 to Rule 24 Certificate in
70-6169 (Twenty-fifth); C-1 to Rule 24 Certificate in 70-6278 (Twenty-
sixth); C-1 to Rule 24 Certificate in 70-6355 (Twenty-seventh); C-1 to
Rule 24 Certificate in 70-6508 (Twenty-eighth); C-1 to Rule 24
Certificate in 70-6556 (Twenty-ninth); C-1 to Rule 24 Certificate in 70-
6635 (Thirtieth); C-1 to Rule 24 Certificate in 70-6834 (Thirty-first);
C-1 to Rule 24 Certificate in 70-6886 (Thirty-second); C-1 to Rule 24
Certificate in 70-6993 (Thirty-third); C-2 to Rule 24 Certificate in 70-
6993 (Thirty-fourth); C-3 to Rule 24 Certificate in 70-6993 (Thirty-
fifth); A-2(a) to Rule 24 Certificate in 70-7166 (Thirty-sixth); A-2(a)
to Rule 24 Certificate in 70-7226 (Thirty-seventh); C-1 to Rule 24
Certificate in 70-7270 (Thirty-eighth)); 4(a) to Quarterly Report on
Form 10-Q for the quarter ended June 30, 1988, in 1-8474 (Thirty-
ninth); A-2(b) to Rule 24 Certificate in 70-7553 (Fortieth); A-2(d) to
Rule 24 Certificate in 70-7553 (Forty-first); A-3(a) to Rule 24
Certificate, in 70-7822 (Forty-second); A-3(b) to Rule 24 Certificate
in 70-7822 (Forty-third); A-2(b) to Rule 24 Certificate in 70-7822
(Forty-fourth); and A-3(c) to Rule 24 Certificate in 70-7822 (Forty-
fifth); A-2(c) to Rule 24 Certificate dated April 7, 1993 in 70-7822
(Forty-sixth); A-3(d) to Rule 24 Certificate dated June 4, 1993 in 70-
7822 (Forth-seventh); A-3(e) to Rule 24 Certificate dated December 21,
1993 in 70-7822 (Forty-eighth); A-3(f) to Rule 24 Certificate dated
August 1, 1994 in 70-7822 (Forty-ninth); A-4(c) to Rule 24 Certificate
dated September 28, 1994 in 70-7653 (Fiftieth); and A-2(a) to Rule 24
Certificate dated April 4, 1996 (Fifty-first)).
C- 4(b) Facility Lease No. 1, dated as of September 1, 1989, between
First National Bank of Commerce, as Owner Trustee, and LP&L (Filed as
Exhibit 4(c)-1 in Registration No. 33-30660).
C- 4(c) Facility Lease No. 2, dated as of September 1, 1989, between
First National Bank of Commerce, as Owner Trustee, and LP&L (Filed as
Exhibit 4(c)-2 in Registration No. 33-30660).
C- 4(d) Facility Lease No. 3, dated as of September 1, 1989, between
First National Bank of Commerce, as Owner Trustee, and LP&L (Filed as
Exhibit 4(c)-3 in Registration No. 33-30660).
MP&L
C- 5(a) Mortgage and Deed of Trust, as amended by twenty-five
Supplemental Indentures (Filed, respectively, as the exhibits and in
the file numbers indicated: 7(d) in 2-5437 (Mortgage); 7(b) in 2-7051
(First); 7(c) in 2-7763 (Second); 7(d) in 2-8484 (Third); 4(b)-4 in 2-
10059 (Fourth); 2(b)-5 in 2-13942 (Fifth); A-11 to Form U-1 in 70-4116
(Sixth); 2(b)-7 in 2-23084 (Seventh); 4(c)-9 in 2-24234 (Eighth); 2(b)-
9(a) in 2-25502 (Ninth); A-11(a) to Form U-1 in 70-4803 (Tenth); A-
12(a) to Form U-1 in 70-4892 (Eleventh); A-13(a) to Form U-1 in 70-5165
(Twelfth); A-14(a) to Form U-1 in 70-5286 (Thirteenth); A-15(a) to Form
U-1 in 70-5371 (Fourteenth); A-16(a) to Form U-1 in 70-5417
(Fifteenth); A-17 to Form U-1 in 70-5484 (Sixteenth); 2(a)-19 in 2-
54234 (Seventeenth); C-1 to Rule 24 Certificate in 70-6619
(Eighteenth); A-2(c) to Rule 24 Certificate in 70-6672 (Nineteenth); A-
2(d) to Rule 24 Certificate in 70-6672 (Twentieth); C-1(a) to Rule 24
Certificate in 70-6816 (Twenty-first); C-1(a) to Rule 24 Certificate in
70-7020 (Twenty-second); C-1(b) to Rule 24 Certificate in 70-7020
(Twenty-third); C-1(a) to Rule 24 Certificate in 70-7230 (Twenty-
fourth); and A-2(a) to Rule 24 Certificate in 70-7419 (Twenty-fifth)).
C- 5(b) Mortgage and Deed of Trust, dated as of February 1, 1988, as
amended by ten Supplemental Indentures (Filed, respectively, as the
exhibits and in the file numbers indicated: A-2(a)-2 to Rule 24
Certificate in 70-7461 (Mortgage); A-2(b)-2 to Rule 24 Certificate in
70-7461 (First); A-5(b) to Rule 24 Certificate in 70-7419 (Second); A-
4(b) to Rule 24 Certificate in 70-7554 (Third); and A-1(b)-1 to Rule 24
Certificate in 70-7737 (Fourth); A-2(b) to Rule 24 Certificate in
70-7914 (Fifth); A-2(e) to Rule 24 Certificate in 70-7914 (Sixth); A-
2(g) to Form U-1 in 70-7914 (Seventh); A-2(i) to Rule 24 Certificate in
70-7914 (Eighth); A-2(j) to Rule 24 Certificate dated July 22, 1994 in
70-7914 (ninth)); and A-2(l) to Rule 24 Certificate dated April 21,
1995 in File No. 70-7914 (Tenth)).
NOPSI
C- 6(a) Mortgage and Deed of Trust, as amended by eleven Supplemental
Indentures (Filed, respectively, as the exhibits and in the file
numbers indicated: B-3 in 2-5411 (Mortgage); 7(b) in 2-7674 (First);
4(a)-2 in 2-10126 (Second); 4(b) in 2-12136 (Third); 2(b)-4 in 2-17959
(Fourth); 2(b)-5 in 2-19807 (Fifth); D to Rule 24 Certificate in 70-
4023 (Sixth); 2(c) in 2-24523 (Seventh); 4(c)-9 in 2-26031 (Eighth);
2(a)-3 in 2-50438 (Ninth); 2(a)-3 in 2-62575 (Tenth); and A-2(b) to
Rule 24 Certificate in 70-7262 (Eleventh)).
C- 6(b) Mortgage and Deed of Trust, dated as of May 1, 1987, as
amended by six Supplemental Indentures (Filed, respectively, as the
exhibits and in the file numbers indicated: A-2(c) to Rule 24
Certificate in 70-7350 (Mortgage); A-5(b) to Rule 24 Certificate in 70-
7350 (First); A-4(b) to Rule 24 Certificate in 70-7448 (Second); 4(f)4
to Form 10-K for the year ended December 31, 1992 in 0-5807 (Third);
4(a) to Form 10-Q for the quarter ended September 30, 1993 in 0-5807
(Fourth); 4(a) to Form 8-K dated April 26, 1995 in File No. 0-5807
(Fifth); and 4(a) to Form 8-K dated March 22, 1996 in File No. 0-5807
(Sixth)).
SYSTEM ENERGY
C- 7(a) Mortgage and Deed of Trust, as amended by nineteen
Supplemental Indentures (Filed, respectively, as the exhibits and in
the file numbers indicated: A-1 in 70-5890 (Mortgage); B and C to Rule
24 Certificate in 70-5890 (First); B to Rule 24 Certificate in 70-6259
(Second); 20(a)-5 to Form 10-Q for the quarter ended June 30, 1981, in
1-3517 (Third); A-1(e)-1 to Rule 24 Certificate in 70-6985 (Fourth); B
to Rule 24 Certificate in 70-7021 (Fifth); B to Rule 24 Certificate in
70-7021 (Sixth); A-3(b) to Rule 24 Certificate in 70-7026 (Seventh); A-
3(b) to Rule 24 Certificate in 70-7158 (Eighth); B to Rule 24
Certificate in 70-7123 (Ninth); B-1 to Rule 24 Certificate in 70-7272
(Tenth); B-2 to Rule 24 Certificate in 70-7272 (Eleventh); B-3 to Rule
24 Certificate in 70-7272 (Twelfth); B-1 to Rule 24 Certificate in 70-
7382 (Thirteenth); and B-2 to Rule 24 Certificate in 70-7382
(Fourteenth); A-2(c) to Rule 24 Certificate in 70-7946 (Fifteenth); A-
2(c) to Rule 24 Certificate in 70-7946 (Sixteenth); and A-2(d) to Rule
24 Certificate in 70-7946 (Seventeenth); A-2(e) to Rule 24 Certificate
in 70-7946 (Eighteenth); and A-2(g) to Rule 24 Certificate dated May 6,
1994 in 70-7946 (Nineteenth)).
C-7(b) Facility Lease No. 1, dated as of December 1, 1988, between
Meridian Trust Company and Stephen M. Carta, (Steven Kaba, Seccessor)
as Owner Trustees, and System Energy (Filed as Exhibit B-2(c)(1) to
Rule 24 Certificate, dated January 9, 1989, in File No. 70-7561), as
supplemented by Lease Supplement No. 1 dated as of April 1, 1989 (B-
22(b) (1) to Rule 24 Certificate dated April 21, 1989 in 70-7561) and
Lease Supplement No. 2 dated as of January 1, 1994 (B-3(d) to Rule 24
Certificate dated January 31, 1994 in 70-8215).
C-7(c) Facility Lease No. 2, dated as of December 1, 1988, between
Meridian Trust Company and Stephen M. Carta, as Owner Trustees, and
System Energy (Filed as Exhibit B-2(c)(2) to Rule 24 Certificate, dated
January 9, 1989, in File No. 70-7561), as supplemented by Lease
Supplement No. 1 dated as of April 1, 1989 (B-22(b) (2) to Rule 24
Certificate dated April 21, 1989 in 70-7561) and Lease Supplement No. 2
dated as of January 1, 1994 (B-4(d) Rule 24 Certificate dated January
31, 1994 in 70-8215).
C-7(d) Indenture (for Unsecured Debt Securities), dated as of September
1, 1995, between System Energy Resources, Inc., and Chemical Bank (B-
10(a) to Rule 24 Certificate in 70-8511).
GSU
C-8(a) Indenture of Mortgage, as amended by certain Supplemental
Indentures (B-a-I-1 in Registration No. 2-2449 (Mortgage); 7-A-9 in
Registration No. 2-6893 (Seventh); B to Form 8-K dated September 1,
1959 (Eighteenth); B to Form 8-K dated February 1, 1966 (Twenty-
second); B to Form 8-K dated March 1, 1967 (Twenty-third); C to Form 8-
K dated March 1, 1968 (Twenty-fourth); B to Form 8-K dated November 1,
1968 (Twenty-fifth); B to Form 8-K dated April 1, 1969 (Twenty-sixth);
2-A-8 in Registration No. 2-66612 (Thirty-eighth); 4-2 to Form 10-K for
the year ended December 31, 1984 in 1-2703 (Forty-eighth); 4-2 to Form
10-K for the year ended December 31, 1988 in 1-2703 (Fifty-second); 4
to Form 10-K for the year ended December 31, 1991 in 1-2703 (Fifty-
third); 4 to Form 8-K dated July 29, 1992 in 1-2703 (Fifth-fourth); 4
to Form 10-K dated December 31, 1992 in 1-2703 (Fifty-fifth); 4 to Form
10-Q for the quarter ended March 31, 1993 in 1-2703 (Fifty-sixth); and
4-2 to Amendment No. 9 to Registration No. 2-76551 (Fifty-seventh)).
C-8(b) Indenture, dated March 21, 1939, accepting resignation of The
Chase National Bank of the City of New York as trustee and appointing
Central Hanover Bank and Trust Company as successor trustee (Filed as
Exhibit B-a-1-6 in Registration No. 2-4076).
C-8(c) Trust Indenture for 9.72% Debentures due July 1, 1998 (Filed
as Exhibit 4 in Registration No. 33-40113).
*C-8(d) Guaranty Agreement, dated as of September 1, 1977, relating
to Pollution Control Revenue Refunding Bonds of the Industrial
Development Board of the Parish of Calcasieu, Inc., (Louisiana).
C-8(e) Guaranty Agreement, dated as of July 1, 1976, between the
Company and the Parish of Iberville, Louisiana (Filed as Exhibits C and
D to GSU Form 8-K, dated August 6, 1976).
C-8(f) Guaranty Agreement, dated August 1, 1992, between the Company
and Hibernia National Bank, relating to Pollution Control Revenue
Refunding Bonds of the Industrial Development Board of the Parish of
Calcasieu, Inc., (Louisiana) (Filed as Exhibit 10-1 to Form SE, dated
February 22, 1993).
C-8(g) Guaranty Agreement, dated January 1, 1993, between the
Company and Hancock Bank of Louisiana, relating to Pollution Control
Revenue Refunding Bonds of the Parish of Pointe Coupee (Louisiana)
(Filed as Exhibit 10-2 to Form SE, dated February 22, 1993).
*C-8(h) Letter of Credit and Reimbursement Agreement, dated December
27, 1985 between the Company and Westpac Banking Corporation relating
to Variable Rate Demand Pollution Control Revenue Bonds of the Parish
of West Feliciana, State of Louisiana, Series 1985-D (Filed as Exhibit
4-26 to Form 10-K, Dated December 31, 1985) and Letter Agreement
amending same dated October 20, 1992 (Filed as Exhibit 10-3 to Form SE,
dated February 22, 1993); and Assignment Assumptions and Amendment
Agreement dated as of September 8, 1993 between the Company, Canadian
Imperial Bank of Commerce and Westpac.
*C-8(i) Letter of Credit and Reimbursement Agreement, dated as of
February 26, 1996, among the Company, various banks, and Canadian
Imperial Bank of Commerce, relating to Multiple Rate Demand Pollution
Control Revenue Bonds of the Parish of West Feliciana, State of
Louisiana, Series 1986.
ENTERGY CORPORATION SYSTEM COMPANIES
D-1 Copy of the Middle South Utilities, Inc. and Subsidiary Companies
Intercompany Income Tax Allocation Agreement, dated April 28, 1988
(Filed as Exhibit D-1 to Form U5S for the year ended December 31, 1987).
D-2 Copy of First Amendment to the Middle South Utilities, Inc. and
Subsidiary Companies Intercompany Income Tax Allocation Agreement,
dated January 1, 1990 (Filed as Exhibit D-2 to Form U5S for the year
ended December 31, 1990).
D-3 Copy of Second Amendment to the Entergy Corporation and
Subsidiary Companies Intercompany Income Tax Allocation Agreement,
dated January 1, 1992 (Filed as Exhibit D-3 to Form U5S for the year
ended December 31, 1992).
D-4 Copy of Third Amendment to the Entergy Corporation and Subsidiary
Companies Intercompany Income Tax Allocation Agreement, dated January
1, 1994 (Filed as Exhibit D-3(a) to Form U5S for the year ended
December 31, 1993).
*F AP&L Preferred Stock Redeemed During 1995; AP&L Long-Term Debt,
including First Mortgage Bonds, Retired During 1995; GSU Preferred
Stock Redeemed During 1995; GSU Long-Term Debt Retired During 1995;
LP&L Preferred Stock Redeemed During 1995; LP&L Long-Term Debt,
including First Mortgage Bonds, Retired During 1995; MP&L Preferred
Stock Redeemed During 1995; MP&L Long-Term Debt, including First
Mortgage Bonds, Retired During 1995; NOPSI Preferred Stock Redeemed
During 1995; NOPSI General & Refunding Mortgage Bonds Retired During
1995; and System Energy Long-Term Debt, including First Mortgage Bonds
Retired during 1995.
*G Financial Data Schedules for Entergy Corporation and
Subsidiaries, Arkansas Power & Light Company, Louisiana Power & Light
Company, Mississippi Power & Light Company, New Orleans Public Service
Inc., System Energy Resources, Inc., Entergy Corporation, Entergy
Operations, Inc., Entergy Power, Inc., Entergy Services, Inc., System
Fuels, Inc., Entergy Enterprises, Inc., GSU Corporation and Subsidiaries,
Gulf States Utilities Company, GSG&T, Inc., Southern Gulf Railway Company,
Varibus Corporation, Prudential Oil & Gas, Inc., and The Arklahoma
Corporation.
H Copy of organization chart for Entergy Corporation and it's
subsidiaries showing the relationship of each EWG or foreign utility in
which the system holds an interest to other system companies, dated
December 31, 1995.
The following is a description of the organizational chart pursuant to
Rule 304 of Regulation S-T:
Entergy Corporation is the parent corporation.
Entergy Corporation's direct subsidiaries consist of Arkansas Power &
Light Company, Gulf States Utilities Company, Louisiana Power & Light
Company, New Orleans Public Service Inc., Mississippi Power & Light
Company, Entergy Operations, Inc., System Energy Resources, Inc.,
Entergy Services, Inc., Entergy Power, Inc., Entergy Enterprises, Inc.,
Entergy Power Development Corporation, Entergy S.A., Entergy Argentina
S.A., and Entergy Transener S.A.
Gulf States Utilities Company's direct subsidiaries are Varibus
Corporation, Prudential Oil & Gas Inc., GSG & T Inc. and Southern Gulf
Railway Company.
Arkansas Power & Light Company owns 34% of The Arklahoma Corporation.
Arkansas Power & Light Company, Louisiana Power & Light Company, New
Orleans Public Service Inc. and Mississippi Power & Light Company
jointly own System Fuels, Inc. Their amount of ownership is 35%, 33%,
19% and 13%, respectively.
Mississippi Power & Light Company owns Jackson Gas Light Company,
Jackson Light & Traction Company and Light Heat and Water Company of
Jackson, Mississippi, all of which are inactive.
Entergy Enterprises, Inc. owns Entergy Systems and Service, Inc.
Entergy Power Development Corporation owns Entergy Richmond Power
Corporation, Entergy Power Asia, Ltd, Entergy Pakistan Ltd, Entergy
Power Holding Ltd, and EP Edegel, Inc., Entergy Pakistan, Ltd. has a
10% equity interest in Hub River Company, Ltd. Entergy Richmond
Power Corporation has a 1% General and a 49% Limited interest in
Richmond Power Enterprise LP. Entergy Power Holding I Ltd. has a 100%
interest in Entergy Power CBA Holding Ltd. EP Edegel, Inc. has a 34.7%
interest in Generandes, Co.
Entergy Argentina, S.A. and Entergy Argentina, S.A. Ltd., hold a 100%
interest in Entergy Power Edesur Holding, Ltd.
Entergy Power Edesur Holding Ltd. holds a 10% interest in Distrilec,
S.A. Distrilec, S.A. holds a privatized 51% interest in Edesur S.A.
Through Distrilec, S.A. Entergy Power Edesur Holding Ltd. holds an
indirect 5.1% interest in Edesur S.A.
Entergy Transener, S.A. holds a 15% interest in Citilec, a consortium.
Citilec holds a 65% interest in Transener, S.A. Through Citilec,
Entergy Transener, S.A. has a 9.75% indirect interest in Transener.
Entergy, S. A. holds a 6% interest in Central Costanera, S.A.
NOTE: Unless otherwise indicated all subsidiaries are wholly (100%)
owned. Neither Entergy Corporation nor any of its direct subsidiaries
owns any preferred or preference stock of any other direct or indirect
subsidiary of Entergy Corporation.
*I-1 Report of Independent Accountants, Consolidated Financial
Statements and Notes to Consolidated Financial Statements of Entergy
Power Development Corporation and Subsidiaries for the year ended
December 31, 1995 (Exhibit I-1 is being filed pursuant to Rule 104.).
*I-2 Report of Independent Accountants, Financial Statements and Notes
to Financial Statements of Entergy Transener, S. A. for the year ended
December 31, 1995 (Exhibit I-2 is being filed pursuant to Rule 104.).
*I-3 Report of Independent Accountants, Financial Statements and Notes
to Financial Statements of Entergy S.A. for the year ended December 31,
1995 (Exhibit I-3 is being filed pursuant to Rule 104.).
_______________________
* Exhibits indicated by an asterisk preceding the exhibit number are
filed herewith. The balance of the exhibits have heretofore been
filed with the Securities and Exchange Commission, respectively, as
the exhibits and in the file numbers indicated and are incorporated
herein by reference.
The Jackson Gas Light Company, Jackson Light and Traction Company and
The Light, Heat and Water Company of Jackson, Mississippi are inactive
companies and copies of exhibits are not included for this reason. No
exhibits pertaining to ARKCO are included. (See notes (4) and (5) to
Item 1 of this Form.)
<PAGE>
EXHIBIT F
ITEM 4. SUPPORTING SCHEDULES
AP&L Preferred Stock Redeemed During 1995
------------------------------------------
Holding
Shares Company Act
Series Redeemed Consideration Release No.
- ------------- --------- ------------- ------------
13.28% Series 200,000 $5,000,000 21395
9.92% Series 80,000 2,000,000 21099
8.52% Series 25,000 2,500,000 24146
------- ----------
305,000 $9,500,000
======= ==========
AP&L Long-Term Debt, including First Mortgage Bonds, Retired During 1995
- ------------------------------------------------------------------------
Holding
Principal Company Act
Series Amount Consideration Release No.
- ---------------------- ---------- ------------- ----------------
8 3/4% Series Due 1998 $400,000 $400,000 Reg.250.42(b)(4)
6 1/4% Series Due 1996 200,000 200,000 Reg.250.42(b)(4)
9 3/4% Series Due 2000 200,000 200,000 Reg.250.42(b)(4)
4 5/8% Series Due 1995 25,000,000 25,000,000 Reg.250.42(b)(2)
Pope County Pollution
Control Revenue Bonds
11% Series Due 2015 120,000,000 122,400,000 Reg.250.42(b)(2)
Pope County Pollution
Control Revenue Bonds
10% Series Due 1995 125,000 125,000 Reg.250.42(b)(2)
Jefferson County
Pollution Control
Revenue Bonds
10% Series Due 1995 1,500,000 1,500,000 Reg.250.42(b)(2)
------------ ----------
$147,425,000 $149,825,000
============ ============
<PAGE>
ITEM 4. SUPPORTING SCHEDULES (Continued)
GSU Preferred Stock Redeemed During 1995
----------------------------------------
Holding
Shares Company Act
Series Redeemed Consideration Release No.
- ------------------------------ -------- ------------- ------------
9.75% Series 2,022 $202,200
8.80% Series 22,312 2,231,200
8.64% Series 14,000 1,400,000
Adjustable Rate Series A, 7.0% 12,000 1,200,000
Adjustable Rate Series B, 7.0% 22,500 2,250,000
------ ----------
72,834 $7,283,400
====== ==========
GSU Long-Term Debt Retired During 1995
--------------------------------------
Holding
Principal Company Act
Series Amount Consideration Release No.
- -------------------- ----------- -------------- ------------------
Iberville Parish
Pollution Control
Revenue Bonds
7% Due 2006 $ 400,000 $ 400,000 Reg.250.42(b)(4)
Iberville Parish
Pollution Control
Revenue Bonds
7% Due 2006 25,000 25,000 Reg.250.42(b)(4)
9.72% Debentures 50,000,000 50,000,000 Reg.250.42(b)(4)
------------ -----------
$50,425,000 $50,425,000
============ ===========
LP&L Preferred Stock Redeemed During 1995
-----------------------------------------
Holding
Shares Company Act
Series Redeemed Consideration Release No.
- ---------------- --------- -------------- ------------
10.72% Series 150,211 $ 3,755,275 21132
12.64% Series 300,000 7,500,000 22853
-------- ------------
450,211 $11,255,275
======== ============
<PAGE>
ITEM 4. SUPPORTING SCHEDULES (Continued)
LP&L Long-Term Debt, including First Mortgage Bonds, Retired During 1995
- ------------------------------------------------------------------------
Holding
Principal Company Act
Series Amount Consideration Release No.
- ---------------------- ----------- ------------- -------------------
10.36% Series Due 1995 $75,000,000 $75,000,000 Reg.250.42(b)(2)
St Charles Parish
Pollution Control
Revenue Bonds
6.4% Due 1990-2007 50,000 50,000 Reg.250.42(b)(4)&(6)
St. Charles Parish
Pollution Control
Revenue Bonds
8% Due 1990-2007 45,000 45,000 Reg.250.42(b)(4)&(6)
Ouachita Parish
Pollution Control
Revenue Bonds
6.4% Due 1990-2007 25,000 25,000 Reg.250.42(b)(4)&(6)
Ouachita Parish
Industrial
Development Bonds
8% Due 1990-2007 15,000 15,000 Reg.250.42(b)(4)&(6)
Jefferson Parish
Pollution Control
Revenue Bonds
8% Due 1990-2009 50,000 50,000 Reg.250.42(b)(4)&(6)
Ouachita Parish
Industrial Development
Revenue Bonds
8% Due 1990-2007 20,000 20,000 Reg.250.42(b)(4)&(6)
St. Charles Parish
Industrial
Development Bonds
6.4% Due 1992-2007 15,000 15,000 Reg.250.42(b)(4)&(6)
Town of Homer Future
Obligations
Due 1993 - 1997 25,400 25,400 Reg.250.42(b)(4)&(6)
Town of Lake
Providence Future
Obligations Due 62,500 62,500 Reg.250.42(b)(4)&(6)
1994 - 1997 ----------- -----------
$75,307,900 $75,307,900
=========== ===========
<PAGE>
ITEM 4. SUPPORTING SCHEDULES (Continued)
MP&L Preferred Stock Redeemed During 1995
-----------------------------------------
Holding
Shares Company Act
Series Redeemed Consideration Release No.
- ---------------- ---------- -------------- ------------
12.00% Series 10,000 $1,000,000 24811
9.76% Series 70,000 7,000,000 24111
9.00% Series 70,000 7,000,000 24111
------- -----------
150,000 $15,000,000
======= ===========
MP&L Long-Term Debt, including First Mortgage Bonds, Retired During 1995
- ------------------------------------------------------------------------
Holding
Principal Company Act
Series Amount Consideration Release No.
- ------------------- ----------- ------------- ----------------
4 5/8% Due 1995 $20,000,000 $20,000,000 Reg.250.42(b)(4)
Washington County
Pollution Control
Revenue Bonds
7-1/2% Due 1991-2004 15,000 15,000 Reg.250.42(b)(4)&(6)
Hinds County Pollution
Control Revenue
Bonds 8.5% Due 1995 950,000 950,000 Reg.250.42(b)(2)
General & Refunding
Mortgage Bonds 14.95%
Due 1995 20,000,000 20,000,000 Reg.250.42(b)(2)
General & Refunding
Mortgage Bonds
11.14% Due 1995 10,000,000 10,000,000 Reg.250.42(b)(2)
General & Refunding
Mortgage Bonds
5.95% Due 1995 15,000,000 15,000,000 Reg.250.42(b)(2)
----------- -----------
$65,965,000 $65,965,000
=========== ===========
NOPSI Preferred Stock Redeemed During 1995
------------------------------------------
Holding
Shares Company Act
Series Redeemed Consideration Release No.
- --------------- ---------- ------------- -------------
15.44% Series 34,495 $3,524,751 21472
<PAGE>
ITEM 4. SUPPORTING SCHEDULES (Concluded)
NOPSI General & Refunding Mortgage Bonds Retired During 1995
- ------------------------------------------------------------
Holding
Principal Company Act
Series Amount Consideration Release No.
- ---------------------- ---------- ------------- ----------------
Rate Recovery Bonds $9,200,000 $9,200,000 Reg.250.42(b)(4)
General & Refunding
Mortgage Bonds 10.95%
Series Due 1997 15,000,000 15,000,000 Reg.250.42(b)(4)
----------- -----------
$24,200,000 $24,200,000
=========== ===========
System Energy Long Term Debt, including First Mortgage Bonds
Retired During 1995
- ------------------------------------------------------------
Holding
Principal Company Act
Series Amount Consideration Release No.
- ---------------------- ------------ ------------- ----------------
6.12% Series Due 1995 $105,000,000 $105,000,000 Reg.250.42(b)(2)
12.5% Claiborne County
Pollution Control Bonds 44,000,000 45,320,000 Reg.250.42(b)(4)
Series D Due 1995 ------------ ------------
$149,000,000 $150,320,000
============ ============
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Annual Report
to the Securities and Exchange Commission on Form U5S of Entergy
Corporation for the year ended December 31, 1995, filed pursuant
to the Public Utility Holding Company Act of 1935, of our reports
on the consolidated financial statements of Entergy Corporation
and subsidiaries and on the financial statements of certain of its
subsidiaries (Arkansas Power & Light Company, Gulf States
Utilities Company, Louisiana Power & Light Company, Mississippi
Power & Light Company, New Orleans Public Service Inc. and System
Energy Resources, Inc.) dated February 14, 1996, which reports for
Entergy Corporation and Gulf States Utilities Company include
emphasis paragraphs related to rate-related contingencies and
legal proceedings, and which reports for Entergy Corporation and
Arkansas Power & Light Company include emphasis paragraphs related
to a change in accounting for incremental nuclear plant outage
maintenance expenses, and which report for Gulf States Utilities
Company includes an emphasis paragraph related to changes in
accounting for income taxes, postretirement benefits and unbilled
revenue, appearing in each of the Company's Annual Reports on Form
10-K for the year ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
New Orleans, Louisiana
April 24, 1996
<PAGE>
SIGNATURE
Each undersigned system company has duly caused this annual report
to be signed on its behalf by the undersigned thereunto duly
authorized pursuant to the requirements of the Public Utility
Holding Company Act of 1935. The signature of each undersigned
company shall be deemed to relate only to matters having reference
to such company or its subsidiaries.
ENTERGY CORPORATION
ARKANSAS POWER & LIGHT COMPANY
GULF STATES UTILITIES COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE, INC.
SYSTEM ENERGY RESOURCES, INC.
ENTERGY OPERATIONS, INC.
ENTERGY SERVICES, INC.
By: /s/ Louis E. Buck, Jr.
Louis E. Buck, Jr.
Vice President and Chief Accounting Officer
ENTERGY ENTERPRISES, INC.
SYSTEM FUELS, INC.
ENTERGY PAKISTAN, LTD.
ENTERGY POWER ASIA, LTD.
ENTERGY POWER DEVELOPMENT CORPORATION
ENTERGY POWER, INC.
ENTERGY RICHMOND POWER CORPORATION
By: /s/Gerald D. McInvale
Gerald D. McInvale
Executive Vice President, Chief
Financial Officer
ENTERGY S. A.
ENTERGY ARGENTINA S. A.
ENTERGY ARGENTINA S. A., LTD.
ENTERGY TRANSENER S. A.
ENTERGY POWER HOLDING I, LTD.
EP EDEGEL, INC.
By: /s/ Terry L. Ogletree
Terry L. Ogletree
President
Dated: April 25, 1996
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
ASSETS CONSOLIDATED ADJUSTMENTS AP&L GSU
----------- ----------- ----------- -----------
Utility Plant:
Electric $21,698,593 $ (400) $ 4,438,519 $ 6,942,983
Plant acquisition adjustment 471,690 (470,902) - -
Electric plant under leases 675,425 1 - -
Property under capital leases - electric 145,146 7,718 48,968 77,918
Natural gas 166,872 - - 45,789
Steam products 77,551 - - 77,551
Construction work in progress 482,950 1 119,874 148,043
Nuclear fuel under capital leases 312,782 - 98,691 69,853
Nuclear fuel 49,100 (1) - -
----------- ----------- ----------- -----------
Total 24,080,109 (463,583) 4,706,052 7,362,137
Less - Accumulated depreciation and amortization 8,259,318 8,270 1,846,112 2,664,943
----------- ----------- ----------- -----------
Utility plant - net 15,820,791 (471,853) 2,859,940 4,697,194
----------- ----------- ----------- -----------
Other Property and Investments:
Common stock of subsidiaries consolidated - 6,354,267 - -
Decommissioning trust funds 277,716 1,546 166,832 32,943
Investment in subsidiary companies - at equity 121 34,021 11,122 -
Other 434,498 (304,666) 5,085 28,626
----------- ----------- ----------- -----------
Total 712,335 6,085,168 183,039 61,569
----------- ----------- ----------- -----------
Current Assets:
Cash and cash equivalents:
Cash 42,822 48,222 7,780 13,751
Temporary cash investments:
Associated companies - 90,532 908 46,336
Other 490,768 (75,243) 3,110 174,517
----------- ----------- ----------- -----------
Total cash and cash equivalents 533,590 63,511 11,798 234,604
Accounts receivable:
Customer 340,452 (1) 77,503 111,795
Allowance for doubtful accounts (7,109) - (2,058) (1,608)
Associated companies - 185,603 40,577 1,395
Other 59,176 (8,963) 6,962 15,497
Accrued unbilled revenues 293,461 - 93,556 73,381
Bulk power receivable:
Associated companies - 27,945 - -
Other - 9,954 - -
Deferred Fuel Costs 25,924 18,077 - 31,154
Accumulated deferred income taxes - 43,465 - 43,465
Recoverable income taxes - 1,482 - -
Fuel inventory - at average cost and LIFO 122,167 5,621 57,456 32,141
Materials and supplies - at average cost 345,330 (821) 75,030 91,288
Rate deferrals 420,221 (1) 131,634 97,164
Deferred excess capacity - 11,088 11,088 -
Prepayments and other 182,028 (40,281) 48,039 15,566
----------- ----------- ----------- -----------
Total 2,315,240 316,679 551,585 745,842
----------- ----------- ----------- -----------
Deferred Debits:
Rate deferrals 1,033,282 - 228,390 419,904
Accumulated deferred income taxes - 15,828 - -
Deferred excess capacity - 5,984 5,984 -
SFAS 109 regulatory asset - net 1,279,495 (2) 219,906 453,628
Long-term receivables 224,726 1 - 224,727
Unamortized loss on reaquired debt 224,131 (1) 58,684 61,233
Other 655,930 8,121 96,887 196,961
----------- ----------- ----------- -----------
Total 3,417,564 29,931 609,851 1,356,453
----------- ----------- ----------- -----------
Total $22,265,930 $ 5,959,925 $ 4,204,415 $ 6,861,058
=========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
SYSTEM ENTERGY
ASSETS LP&L MP&L NOPSI ENERGY CORPORATION
----------- ----------- ----------- ----------- -----------
Utility Plant:
Electric $ 4,886,898 $ 1,559,955 $ 483,581 $ 2,977,303 $ -
Plant acquisition adjustment - - - - -
Electric plant under leases 231,121 - - 444,305 -
Property under capital leases - electric - - - - -
Natural gas - - 121,083 - -
Steam products - - - - -
Construction work in progress 87,567 55,443 17,525 35,946 -
Nuclear fuel under capital leases 72,864 - - 71,374 -
Nuclear fuel 1,506 - - - -
----------- ----------- ----------- ----------- -----------
Total 5,279,956 1,615,398 622,189 3,528,928 -
Less - Accumulated depreciation and amortization 1,742,306 613,712 335,021 861,752 -
----------- ----------- ----------- ----------- -----------
Utility plant - net 3,537,650 1,001,686 287,168 2,667,176 -
----------- ----------- ----------- ----------- -----------
Other Property and Investments:
Common stock of subsidiaries consolidated - - - - 6,354,267
Decommissioning trust funds 38,560 - - 40,927 -
Investment in subsidiary companies - at equity 14,230 5,531 3,259 - -
Other 21,173 5,615 - - -
----------- ----------- ----------- ----------- -----------
Total 73,963 11,146 3,259 40,927 6,354,267
----------- ----------- ----------- ----------- -----------
Current Assets:
Cash and cash equivalents:
Cash 3,952 2,574 1,693 240 25
Temporary cash investments:
Associated companies - 3,248 10,860 - 29,180
Other 30,418 11,123 37,193 - 99,939
----------- ----------- ----------- ----------- -----------
Total cash and cash equivalents 34,370 16,945 49,746 240 129,144
Accounts receivable:
Customer 73,718 47,799 29,636 - -
Allowance for doubtful accounts (1,390) (1,585) (468) - -
Associated companies 8,033 1,134 551 72,458 8,697
Other 8,979 1,967 843 4,837 356
Accrued unbilled revenues 62,132 47,150 17,242 - -
Bulk power receivable:
Associated companies - - - - -
Other - - - - -
Deferred Fuel Costs 10,200 - 2,647 - -
Accumulated deferred income taxes - - - - -
Recoverable income taxes - - - - -
Fuel inventory - at average cost and LIFO - 6,681 - - -
Materials and supplies - at average cost 79,799 19,233 8,950 67,661 -
Rate deferrals 25,609 130,622 35,191 - -
Deferred excess capacity - - - - -
Prepayments and other 30,462 11,536 4,529 16,050 10,008
----------- ----------- ----------- ----------- -----------
Total 331,912 281,482 148,867 161,246 148,205
----------- ----------- ----------- ----------- -----------
Deferred Debits:
Rate deferrals - 247,072 137,916 - -
Accumulated deferred income taxes - - - - -
Deferred excess capacity - - - - -
SFAS 109 regulatory asset - net 301,520 6,445 6,813 291,181 -
Long-term receivables - - - - -
Unamortized loss on reaquired debt 39,474 10,105 1,932 52,702 -
Other 47,004 24,047 10,251 217,780 47,381
----------- ----------- ----------- ----------- -----------
Total 387,998 287,669 156,912 561,663 47,381
----------- ----------- ----------- ----------- -----------
Total $ 4,331,523 $ 1,581,983 $ 596,206 $ 3,431,012 $ 6,549,853
=========== =========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
ENTERGY ENTERGY ENTERGY SYSTEM ENTERGY
ASSETS OPERATIONS POWER SERVICES FUELS ENTERPRISES
----------- ----------- ----------- ----------- -----------
(unaudited)
Utility Plant:
Electric $ 11,254 $ 237,084 $ 136,013 $ 24,603 $ -
Plant acquisition adjustment - 788 - - -
Electric plant under leases - - - - -
Property under capital leases - electric - - 9,673 16,305 -
Natural gas - - - - -
Steam products - - - - -
Construction work in progress 344 4,028 14,181 - -
Nuclear fuel under capital leases - - - - -
Nuclear fuel - - - 47,593 -
----------- ----------- ----------- ----------- -----------
Total 11,598 241,900 159,867 88,501 -
Less - Accumulated depreciation and amortization 5,861 96,697 77,786 23,398 -
----------- ----------- ----------- ----------- -----------
Utility plant - net 5,737 145,203 82,081 65,103 -
----------- ----------- ----------- ----------- -----------
Other Property and Investments:
Common stock of subsidiaries consolidated - - - - -
Decommissioning trust funds - - - - -
Investment in subsidiary companies - at equity - - - - -
Other - - - - 69,333
----------- ----------- ----------- ----------- -----------
Total - - - - 69,333
----------- ----------- ----------- ----------- -----------
Current Assets:
Cash and cash equivalents:
Cash 1,241 257 10,396 1,021 48,114
Temporary cash investments:
Associated companies - - - - -
Other - 59,225 - - -
----------- ----------- ----------- ----------- -----------
Total cash and cash equivalents 1,241 59,482 10,396 1,021 48,114
Accounts receivable:
Customer - - - - -
Allowance for doubtful accounts - - - - -
Associated companies 27,453 4,971 15,520 1,510 14,617
Other - 8,326 70 1,199 1,176
Accrued unbilled revenues - - - - -
Bulk power receivable:
Associated companies - - 27,945 - -
Other - - 9,954 - -
Deferred Fuel Costs - - - - -
Accumulated deferred income taxes - - - - -
Recoverable income taxes - - - 1,482 -
Fuel inventory - at average cost and LIFO - 3,539 - 27,971 -
Materials and supplies - at average cost - 2,548 - - -
Rate deferrals - - - - -
Deferred excess capacity - - - - -
Prepayments and other 398 - 4,380 550 229
----------- ----------- ----------- ----------- -----------
Total 29,092 78,866 68,265 33,733 64,136
----------- ----------- ----------- ----------- -----------
Deferred Debits:
Rate deferrals - - - - -
Accumulated deferred income taxes 877 - 1,275 - 12,906
Deferred excess capacity - - - - -
SFAS 109 regulatory asset - net - - - - -
Long-term receivables - - - - -
Unamortized loss on reaquired debt - - - - -
Other 586 2 1,616 250 21,286
----------- ----------- ----------- ----------- -----------
Total 1,463 2 2,891 250 34,192
----------- ----------- ----------- ----------- -----------
Total $ 36,292 $ 224,071 $ 153,237 $ 99,086 $ 167,661
=========== =========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
CAPITALIZATION AND LIABILITIES CONSOLIDATED ADJUSTMENTS AP&L GSU
----------- ----------- ----------- -----------
Capitalization:
Common stock, $.01par value, authorized
500,000,000 shares; issued and outstanding
230,017,485 shares $ 2,300 $ - $ - $ -
Common stock of subsidiaries - 2,280,345 470 114,055
Paid in capital 4,201,483 2,155,607 590,844 1,152,505
Capital stock expense and other - (5,054) - -
Retained earnings 2,335,579 1,175,726 492,386 357,704
Less - treasury stock (2,251,318 shares in 1995) 67,642 - -
----------- ----------- ----------- -----------
Total common shareholders' equity 6,471,720 5,606,624 1,083,700 1,624,264
----------- ----------- ----------- -----------
Subsidiary's preference stock 150,000 - 150,000
Subsidiaries' preferred stock: -
Without sinking fund 550,955 176,350 136,444
With sinking fund 253,460 49,027 87,654
----------- ----------- ----------- -----------
Total 954,415 225,377 374,098
----------- ----------- ----------- -----------
Long-term debt and premium:
Subsidiaries 6,777,124 (59,794) 1,281,203 2,175,471
Notes payable to associated companies - 34,000 - -
----------- ----------- ----------- -----------
Total 6,777,124 (25,794) 1,281,203 2,175,471
----------- ----------- ----------- -----------
Total Capitalization 14,203,259 5,580,830 2,590,280 4,173,833
----------- ----------- ----------- -----------
Other Noncurrent Liabilities:
Obligations under capital leases 303,664 93,574 108,078
Other 317,949 (6,127) 67,444 78,245
----------- ----------- ----------- -----------
Total 621,613 (6,127) 161,018 186,323
----------- ----------- ----------- -----------
Current Liabilities:
Currently maturing long-term debt 558,650 28,700 145,425
Notes payable:
Associated companies - 90,532 - -
Other 45,667 602 667 -
Accounts payable:
Associated companies - 179,260 42,156 31,349
Other 460,379 20,227 120,250 136,528
Bulk power payable:
Associated companies - 24,119 - -
Other - 15,047 - -
Customer deposits 140,054 18,594 21,983
Taxes accrued 207,828 33 40,159 37,413
Accumulated deferred income taxes 72,847 42,775 48,992 -
Interest accrued 195,445 (448) 30,240 56,837
Dividends declared 12,194 240 4,458 1,204
Deferred fuel cost - 17,837 17,837 -
Nuclear refueling reserve 22,627 - 22,627
Co-owner advances - 34,450 34,450 -
Obligations under capital leases 151,140 1,404 54,697 37,773
Other 233,267 (58,046) 26,238 85,449
----------- ----------- ----------- -----------
Total 2,100,098 368,032 467,438 576,588
----------- ----------- ----------- -----------
Deferred Credits:
Accumulated deferred income taxes 3,777,644 31,665 823,471 1,177,144
Accumulated deferred investment tax credits 612,701 112,890 208,618
FERC Settlement - refund obligation - 56,848 - -
Deferred revenue - 32,724 - -
SFAS 109 regulatory liability - net - - -
Other 950,615 (104,047) 49,318 538,552
----------- ----------- ----------- -----------
Total 5,340,960 17,190 985,679 1,924,314
----------- ----------- ----------- -----------
Total $22,265,930 $5,959,925 $4,204,415 $6,861,058
=========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
SYSTEM ENTERGY
CAPITALIZATION AND LIABILITIES LP&L MP&L NOPSI ENERGY CORPORATION
----------- ----------- ----------- ----------- -----------
Capitalization:
Common stock, $.01par value, authorized
500,000,000 shares; issued and outstanding
230,017,485 shares $ - $ - $ - $ - $ 2,300
Common stock of subsidiaries 1,088,900 199,326 33,744 789,350 -
Paid in capital - - 36,306 7 4,201,483
Capital stock expense and other (4,836) (218) - - -
Retained earnings 72,150 231,463 81,261 85,920 2,335,579
Less - treasury stock (2,251,318 shares in 1995) - - - - 67,642
----------- ----------- ----------- ----------- -----------
Total common shareholders' equity 1,156,214 430,571 151,311 875,277 6,471,720
----------- ----------- ----------- ----------- -----------
Subsidiary's preference stock - - - - -
Subsidiaries' preferred stock:
Without sinking fund 160,500 57,881 19,780 - -
With sinking fund 100,009 16,770 - - -
----------- ----------- ----------- ----------- -----------
Total 260,509 74,651 19,780 - -
----------- ----------- ----------- ----------- -----------
Long-term debt and premium:
Subsidiaries 1,385,171 494,404 155,958 1,219,917 -
Notes payable to associated companies - - - - -
----------- ----------- ----------- ----------- -----------
Total 1,385,171 494,404 155,958 1,219,917 -
----------- ----------- ----------- ----------- -----------
Total Capitalization 2,801,894 999,626 327,049 2,095,194 6,471,720
----------- ----------- ----------- ----------- -----------
Other Noncurrent Liabilities:
Obligations under capital leases 43,362 439 - 44,107 -
Other 50,835 11,186 17,745 16,068 70,299
----------- ----------- ----------- ----------- -----------
Total 94,197 11,625 17,745 60,175 70,299
----------- ----------- ----------- ----------- -----------
Current Liabilities:
Currently maturing long-term debt 35,260 61,015 38,250 250,000 -
Notes payable:
Associated companies 61,459 - - 2,990 -
Other 15,000 - - - -
Accounts payable:
Associated companies 37,494 24,391 13,851 17,458 762
Other 69,922 32,100 24,674 19,063 1,142
Bulk power payable:
Associated companies - - - - -
Other - - - - -
Customer deposits 56,924 24,339 18,214 - -
Taxes accrued 18,612 28,639 5,554 72,648 -
Accumulated deferred income taxes 3,366 54,090 9,174 - -
Interest accrued 44,202 21,834 5,111 36,743 -
Dividends declared 5,149 1,382 241 - -
Deferred fuel cost - - - - -
Nuclear refueling reserve - - - - -
Co-owner advances - - - - -
Obligations under capital leases 28,000 113 - 28,000 -
Other 17,397 5,380 14,104 4,211 5,930
----------- ----------- ----------- ----------- -----------
Total 392,785 253,283 129,173 431,113 7,834
----------- ----------- ----------- ----------- -----------
Deferred Credits:
Accumulated deferred income taxes 807,278 278,581 81,654 602,182 -
Accumulated deferred investment tax credits 145,561 27,978 8,618 107,119 -
FERC Settlement - refund obligation - - - 56,848 -
Deferred revenue - - - - -
SFAS 109 regulatory liability - net - - - - -
Other 89,808 10,890 31,967 78,381 -
----------- ----------- ----------- ----------- -----------
Total 1,042,647 317,449 122,239 844,530 -
----------- ----------- ----------- ----------- -----------
Total $4,331,523 $1,581,983 $ 596,206 $3,431,012 $6,549,853
=========== =========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
ENTERGY ENTERGY ENTERGY SYSTEM ENTERGY
CAPITALIZATION AND LIABILITIES OPERATIONS POWER SERVICES FUELS ENTERPRISES
----------- ----------- ----------- ----------- -----------
(unaudited)
Capitalization:
Common stock, $.01par value, authorized
500,000,000 shares; issued and outstanding
230,017,485 shares $ - $ - $ - $ - $ -
Common stock of subsidiaries 5 55 20 20 54,400
Paid in capital 995 249,950 - - 125,000
Capital stock expense and other - - - - -
Retained earnings - (77,771) - - (67,387)
Less - treasury stock (2,251,318 shares in 1995) - - - - -
----------- ----------- ----------- ----------- -----------
Total common shareholders' equity 1,000 172,234 20 20 112,013
----------- ----------- ----------- ----------- -----------
Subsidiary's preference stock - - - - -
Subsidiaries' preferred stock:
Without sinking fund - - - - -
With sinking fund - - - - -
----------- ----------- ----------- ----------- -----------
Total - - - - -
----------- ----------- ----------- ----------- -----------
Long-term debt and premium:
Subsidiaries - - - - 5,206
Notes payable to associated companies - - - 34,000 -
----------- ----------- ----------- ----------- -----------
Total - - - 34,000 5,206
----------- ----------- ----------- ----------- -----------
Total Capitalization 1,000 172,234 20 34,020 117,219
----------- ----------- ----------- ----------- -----------
Other Noncurrent Liabilities:
Obligations under capital leases - - - 13,906 198
Other - - - - -
----------- ----------- ----------- ----------- -----------
Total - - - 13,906 198
----------- ----------- ----------- ----------- -----------
Current Liabilities:
Currently maturing long-term debt - - - - -
Notes payable:
Associated companies 5,780 - 10,545 9,758 -
Other - - - 30,000 602
Accounts payable:
Associated companies 11,313 7,582 3,528 264 542
Other 15,501 291 50,286 4,962 5,887
Bulk power payable:
Associated companies - - 24,001 - -
Other - - 15,047 - -
Customer deposits - - - - -
Taxes accrued - 4,836 - - -
Accumulated deferred income taxes - - - - -
Interest accrued - - - 30 -
Dividends declared - - - - -
Deferred fuel cost - - - - -
Nuclear refueling reserve - - - - -
Co-owner advances - - - - -
Obligations under capital leases - - 1,404 2,399 158
Other 1,746 523 6,737 888 6,618
----------- ----------- ----------- ----------- -----------
Total 34,340 13,232 111,548 48,301 13,807
----------- ----------- ----------- ----------- -----------
Deferred Credits:
Accumulated deferred income taxes - 37,141 - 1,088 -
Accumulated deferred investment tax credits - - 1,031 886 -
FERC Settlement - refund obligation - - - - -
Deferred revenue - 1,464 - - 31,260
SFAS 109 regulatory liability - net - - - - -
Other 952 - 40,638 885 5,177
----------- ----------- ----------- ----------- -----------
Total 952 38,605 41,669 2,859 36,437
----------- ----------- ----------- ----------- -----------
Total $ 36,292 $ 224,071 $ 153,237 $ 99,086 $ 167,661
=========== =========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF INCOME (LOSS)
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
CONSOLIDATED ADJUSTMENTS AP&L GSU
------------ ------------ ---------- ----------
Operating Revenues:
Electric $6,121,141 $ 944,922 $ 1,648,233 $ 1,788,964
Natural gas 103,992 (1) - 23,715
Other 49,295 1,191,974 - 49,295
Equity in earnings of subsidiaries - 549,144 - -
------------ ------------ ---------- ----------
Total 6,274,428 2,686,039 1,648,233 1,861,974
------------ ------------ ---------- ----------
Operating Expenses:
Operation:
Fuel for electric generation
and fuel-related expenses 1,395,889 1,389 231,619 516,812
Purchased power 356,596 916,540 363,199 169,767
Nuclear refueling outages expenses 84,972 660,677 31,754 10,607
Other operation and maintenance 1,468,851 569,773 375,059 432,647
Depreciation and decommissioning 690,841 21,971 162,087 202,224
Taxes other than income taxes 299,926 18,651 38,319 102,228
Income taxes 349,528 (24,912) 53,936 57,235
Rate deferrals: -
Amortization of rate deferrals 408,087 (1) 174,329 66,025
------------ ------------ ---------- ----------
Total 5,054,690 2,164,088 1,430,302 1,557,545
------------ ------------ ---------- ----------
Operating Income 1,219,738 521,951 217,931 304,429
------------ ------------ ---------- ----------
Other Income:
Allowance for equity funds used during
construction 9,629 (1) 3,567 1,125
Miscellaneous - net (20,947) 106,459 46,227 22,573
Income taxes - (debit) credit 13,346 (38,004) (18,146) (6,009)
------------ ------------ ---------- ----------
Total 2,028 68,454 31,648 17,689
------------ ------------ ---------- ----------
Interest and Other Charges:
Interest on long-term debt 633,851 5,993 106,853 191,341
Other interest - net 33,749 18,442 8,485 8,884
Allowance for borrowed funds used during
construction (8,368) (1) (2,424) (1,026)
Preferred dividend requirements of subsidiaries 77,969 18,093 29,643
------------ ------------ ---------- ----------
Total 737,201 24,434 131,007 228,842
------------ ------------ ---------- ----------
Income before the Cumulative Effect of
Accounting Changes 484,565 565,971 118,572 93,276
Cumulative Effect of Accounting Changes
(net of tax) 35,415 - 35,415 -
------------ ------------ ---------- ----------
Net Income (Loss) $ 519,980 $ 565,971 $ 153,987 $ 93,276
============ ============ ========== ==========
Earnings per average common share before
cumulative effect of a change in accounting principle $2.13
Earnings per average common share $2.28
Dividends declared per common share $1.80
Average number of common shares outstanding 227,669,970
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF INCOME (LOSS)
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
SYSTEM ENTERGY
LP&L MP&L NOPSI ENERGY CORPORATION
---------- ---------- ----------- ----------- ----------
Operating Revenues:
Electric $ 1,674,875 $ 889,843 $ 394,394 $ 605,639 $ -
Natural gas - - 80,276 - -
Other - - - - -
Equity in earnings of subsidiaries - - - - 549,144
---------- ---------- ----------- ----------- ----------
Total 1,674,875 889,843 474,670 605,639 549,144
---------- ---------- ----------- ----------- ----------
Operating Expenses:
Operation:
Fuel for electric generation
and fuel-related expenses 300,015 163,198 102,314 40,262 -
Purchased power 351,583 240,519 145,920 - -
Nuclear refueling outages expenses 17,675 - - 24,935 -
Other operation and maintenance 311,535 144,183 76,510 98,441 53,872
Depreciation and decommissioning 161,023 38,197 19,420 100,747 -
Taxes other than income taxes 55,867 46,019 27,805 27,549 1,102
Income taxes 116,486 33,716 19,836 77,410 (5,383)
Rate deferrals:
Amortization of rate deferrals 28,422 107,339 31,971 - -
---------- ---------- ----------- ----------- ----------
Total 1,342,606 773,171 423,776 369,344 49,591
---------- ---------- ----------- ----------- ----------
Operating Income 332,269 116,672 50,894 236,295 499,553
---------- ---------- ----------- ----------- ----------
Other Income:
Allowance for equity funds used during
construction 1,950 950 158 1,878 -
Miscellaneous - net 2,831 3,036 1,639 2,492 20,641
Income taxes - (debit) credit (628) (1,161) (631) 1,917 -
---------- ---------- ----------- ----------- ----------
Total 4,153 2,825 1,166 6,287 20,641
---------- ---------- ----------- ----------- ----------
Interest and Other Charges:
Interest on long-term debt 129,691 46,998 15,948 143,020 -
Other interest - net 7,210 4,638 1,853 8,491 214
Allowance for borrowed funds used during
construction (2,016) (806) (127) (1,968) -
Preferred dividend requirements of subsidiaries 21,307 7,515 1,411 - -
---------- ---------- ----------- ----------- ----------
Total 156,192 58,345 19,085 149,543 214
---------- ---------- ----------- ----------- ----------
Income before the Cumulative Effect of
Accounting Changes 180,230 61,152 32,975 93,039 519,980
Cumulative Effect of Accounting Changes
(net of tax) - - - - -
---------- ---------- ----------- ----------- ----------
Net Income (Loss) $ 180,230 $ 61,152 $ 32,975 $ 93,039 $ 519,980
========== ========== =========== =========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF INCOME (LOSS)
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C>
ENTERGY ENTERGY ENTERGY SYSTEM ENTERGY
OPERATIONS POWER SERVICES FUELS ENTERPRISES
---------- ---------- ---------- ---------- ----------
(unaudited)
Operating Revenues:
Electric $ - 64,115 $ - $ - $ -
Natural gas - - - - -
Other 682,065 - 397,530 103,713 26,298
Equity in earnings of subsidiaries - - - - -
---------- ---------- ---------- ---------- ----------
Total 682,065 64,115 397,530 103,713 26,298
---------- ---------- ---------- ---------- ----------
Operating Expenses:
Operation:
Fuel for electric generation
and fuel-related expenses - 43,058 - - -
Purchased power - 2,148 - - -
Nuclear refueling outages expenses 660,678 - - - -
Other operation and maintenance - 24,646 361,107 100,326 60,298
Depreciation and decommissioning 1,283 5,723 17,369 - 4,739
Taxes other than income taxes 19,264 1,036 15,550 1,470 -
Income taxes 264 (6,729) (257) 363 (22,261)
Rate deferrals:
Amortization of rate deferrals - - - - -
---------- ---------- ---------- ---------- ----------
Total 681,489 69,882 393,769 102,159 42,776
---------- ---------- ---------- ---------- ----------
Operating Income 576 (5,767) 3,761 1,554 (16,478)
---------- ---------- ---------- ---------- ----------
Other Income:
Allowance for equity funds used during
construction - - - - -
Miscellaneous - net - 1,092 602 288 (15,909)
Income taxes - (debit) credit - - - - -
---------- ---------- ---------- ---------- ----------
Total - 1,092 602 288 (15,909)
---------- ---------- ---------- ---------- ----------
Interest and Other Charges:
Interest on long-term debt - 5,993 - - -
Other interest - net 576 1 4,363 1,842 5,634
Allowance for borrowed funds used during
construction - (2) - - -
Preferred dividend requirements of subsidiaries - - - - -
---------- ---------- ---------- ---------- ----------
Total 576 5,992 4,363 1,842 5,634
---------- ---------- ---------- ---------- ----------
Income before the Cumulative Effect of
Accounting Changes - (10,667) - - (38,021)
Cumulative Effect of Accounting Changes
(net of tax) - - - - -
---------- ---------- ---------- ---------- ----------
Net Income (Loss) $ - $ (10,667) $ - $ - $ (38,021)
========== ========== ========== ========== ==========
**See note to financial statements
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENTS OF
RETAINED EARNINGS
YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
RETAINED EARNINGS CONSOLIDATEADJUSTMENTS AP&L GSU
------------------------------------------
Retained Earnings, January 1, 1995 $2,223,739 $1,169,953 $ 491,799 $ 264,626
Add:
Net Income (Loss) 519,980 643,940 172,080 122,919
------------------------------------------
Total 2,743,719 1,813,893 663,879 387,545
------------------------------------------
Deduct:
Dividends declared on:
Preferred and preference stock - 75,552 18,093 29,482
Common stock 409,801 560,000 153,400 -
Capital stock and other expenses (1,661) 2,256 - -
Preferred and preference stock redemption - 359 - 359
Common stock retirements - - -
Unrealized loss - FAS 115 - - -
------------------------------------------
Total 408,140 638,167 171,493 29,841
------------------------------------------
Retained Earnings, December 31, 1995 $2,335,579 $1,175,726 $ 492,386 $ 357,704
==========================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENTS OF
RETAINED EARNINGS
YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
SYSTEM ENTERGY
RETAINED EARNINGS LP&L MP&L NOPSI ENERGY CORPORATION
----------------------------------------------------
Retained Earnings, January 1, 1995 $ 113,420 $ 232,011 $ 78,886$ 85,681$2,223,739
Add:
Net Income (Loss) 201,537 68,667 34,386 93,039 519,980
----------------------------------------------------
Total 314,957 300,678 113,272 178,720 2,743,719
----------------------------------------------------
Deduct:
Dividends declared on:
Preferred and preference stock 20,775 5,971 1,231 - -
Common stock 221,500 61,700 30,600 92,800 409,801
Capital stock and other expenses 532 1,544 180 - (1,661)
Preferred and preference stock redemption - - - - -
Common stock retirements - - - - -
Unrealized loss - FAS 115 - - - - -
----------------------------------------------------
Total 242,807 69,215 32,011 92,800 408,140
----------------------------------------------------
Retained Earnings, December 31, 1995 $ 72,150 $ 231,463 $ 81,261 $ 85,920 $2,335,579
====================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENTS OF
RETAINED EARNINGS
YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
ENTERGY ENTERGY ENTERGY SYSTEM ENTERGY
RETAINED EARNINGS OPERATIONS POWER SERVICES FUELS ENTERPRISES
----------------------------------------------------
(unaudited)
Retained Earnings, January 1, 1995 $ - $ (67,104)$ - $ - $ (29,366)
Add:
Net Income (Loss) - (10,667) - - (38,021)
----------------------------------------------------
Total (77,771) - (67,387)
----------------------------------------------------
Deduct:
Dividends declared on:
Preferred and preference stock - - - - -
Common stock - - - - -
Capital stock and other expenses - - - - -
Preferred and preference stock redemption - - - - -
Common stock retirements - - - - -
Unrealized loss - FAS 115 - - - - -
----------------------------------------------------
Total - -
----------------------------------------------------
Retained Earnings, December 31, 1995 $ - $ (77,771)$ - $ - $ (67,387)
====================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
OPERATING ACTIVITIES: CONSOLIDATED ADJUSTMENTS AP&L GSU
----------- ------------- ---------- ----------
Net Income (Loss) $ 519,980 $ 643,940 $ 172,080 $ 122,919
Noncash items included in net income
Cumulative effect of a change in accounting principle (35,415) - (35,415) -
Change in rate deferrals/ excess capacity 390,177 (24,358) 125,504 66,025
Depreciation, amortization and decommissioning 690,841 26,053 162,087 202,224
Deferred income taxes and investment tax credits (31,006) 15,349 (33,882) 63,231
Allowance for equity funds used during construction (9,629) 1 (3,567) (1,125)
Equity in earnings of subsidiaries - (549,144) - -
Accrued pension liability - 2,034 - -
Provisions for estimated losses 14,065 2,070 2,849 10,119
Changes in working capital:
Receivables (30,550) (59,083) (39,209) 40,193
Fuel inventory (28,956) (12,506) (22,895) (6,357)
Accounts payable (19,124) 87,032 55,732 (4,820)
Taxes accrued 115,250 (29,543) (5,080) 24,935
Interest accrued (194) (632) (824) 1,510
Reserve for rate refund (48,117) - (56,972)
Other working capital accounts (114,436) (7,201) (28,375) (40,919)
Common stock dividends received - 565,589 - -
Other deferred credits - (1,981) - -
Change in decommissioning trust (37,756) - (16,702) (8,147)
Other 21,601 25,287 6,055 (12,062)
----------- ------------- ---------- ----------
Net cash flow provided (used) by operating activities 1,396,731 682,907 338,358 400,754
----------- ------------- ---------- ----------
INVESTING ACTIVITIES:
Construction expenditures (618,436) 3,511 (165,071) (185,944)
Allowance for equity funds used during construction 9,629 (1) 3,567 1,125
Nuclear fuel sales (expenditures) - net (207,501) 68,695 (41,219) (1,425)
Proceeds from sale/leaseback of nuclear fuel 226,607 (84,752) 41,832 542
Investment in nonregulated/nonutility properties (172,814) 161,787 - -
Decrease (increase) in other temporary investments - - - -
Change of investment in subsidiary - (256,169) - -
Other - (37,667) - -
----------- ------------- ---------- ----------
Net cash flow used by investing activities (762,515) (144,596) (160,891) (185,702)
----------- ------------- ---------- ----------
FINANCING ACTIVITIES:
Proceeds from issuance of:
General and refunding mortgage bonds 109,285 - - -
Common stock - - - -
Bank notes and other long-term debt 273,542 (120,683) 118,662 2,277
Retirement of:
First mortgage bonds (225,800) - (25,800) -
General and refunding mortgage bonds (69,200) - - -
Bank notes and other long-term debt (221,043) (2,200) (124,025) (50,425)
Redemption of preferred stock (46,564) (9,500) (7,283)
Dividends paid:
Common stock (408,553) (560,000) (153,400) -
Preferred stock - (76,715) (18,362) (29,661)
Change in advances from parent company - 77,892 - -
Changes in short-term borrowings (126,200) 115,644 (34,000) -
Other - 20,560 - -
----------- ------------- ---------- ----------
Net cash flow provided (used) by financing activities (714,533) (545,502) (246,425) (85,092)
----------- ------------- ---------- ----------
Net increase (decrease) in cash and cash equivalents (80,317) (7,191) (68,958) 129,960
Cash and cash equivalents at beginning of year 613,907 70,701 80,756 104,644
----------- ------------- ---------- ----------
Cash and cash equivalents at end of year $ 533,590 $ 63,510 $ 11,798 $ 234,604
=========== ============= ========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
SYSTEM ENTERGY
OPERATING ACTIVITIES: LP&L MP&L NOPSI ENERGY CORPORATION
----------- ------------- ---------- ---------- ----------
Net Income (Loss) $ 201,537 $ 68,667 $ 34,386 $ 93,039 $ 519,980
Noncash items included in net income
Cumulative effect of a change in accounting principle - - - - -
Change in rate deferrals/ excess capacity 28,422 114,304 31,564 - -
Depreciation, amortization and decommissioning 161,023 38,197 19,420 100,747 1,421
Deferred income taxes and investment tax credits 2,450 (36,774) (1,998) (45,337) (2,024)
Allowance for equity funds used during construction (1,950) (950) (158) (1,878) -
Equity in earnings of subsidiaries - - - - (549,144)
Accrued pension liability - - - - -
Provisions for estimated losses - - - 3,167 -
Changes in working capital:
Receivables (8,069) (5,277) (5,468) (66,433) 2,161
Fuel inventory - (1,901) - - -
Accounts payable 4,420 15,553 12,566 (18,955) (3,776)
Taxes accrued 20,472 7,818 3,225 37,266 -
Interest accrued 1,215 1,457 (131) (4,053) -
Reserve for rate refund 8,855
Other working capital accounts (25,848) (21,108) 15,369 (21,874) (1,701)
Common stock dividends received - - - - 565,589
Other deferred credits - - - - -
Change in decommissioning trust (7,493) - - (5,414) -
Other (377) 4,957 (9,500) 26,185 8,652
----------- ------------- ---------- ---------- ----------
Net cash flow provided (used) by operating activities 384,657 184,943 99,275 96,460 541,158
----------- ------------- ---------- ---------- ----------
INVESTING ACTIVITIES:
Construction expenditures (120,244) (79,146) (27,836) (21,747) -
Allowance for equity funds used during construction 1,950 950 158 1,878 -
Nuclear fuel sales (expenditures) - net (44,707) - - (51,455) -
Proceeds from sale/leaseback of nuclear fuel 47,293 - - 52,188 -
Investment in nonregulated/nonutility properties - - - - -
Decrease (increase) in other temporary investments - - - - -
Change of investment in subsidiary - - - - (256,169)
Other - - - - -
----------- ------------- ---------- ---------- ----------
Net cash flow used by investing activities (115,708) (78,196) (27,678) (19,136) (256,169)
----------- ------------- ---------- ---------- ----------
FINANCING ACTIVITIES:
Proceeds from issuance of:
General and refunding mortgage bonds - 79,480 29,805 - -
Common stock - - - - -
Bank notes and other long-term debt 16,577 - - 73,343
Retirement of:
First mortgage bonds (75,000) (20,000) - (105,000) -
General and refunding mortgage bonds - (45,000) (24,200) - -
Bank notes and other long-term debt (308) (965) - (45,320) -
Redemption of preferred stock (11,256) (15,000) (3,525) - -
Dividends paid:
Common stock (221,500) (61,700) (30,600) (92,800) (408,553)
Preferred stock (21,115) (6,215) (1,362) - -
Change in advances from parent company - - - - -
Changes in short-term borrowings 49,305 (30,000) - 2,990 -
Other - - - - -
----------- ------------- ---------- ---------- ----------
Net cash flow provided (used) by financing activities (263,297) (99,400) (29,882) (166,787) (408,553)
----------- ------------- ---------- ---------- ----------
Net increase (decrease) in cash and cash equivalents 5,652 7,347 41,715 (89,463) (123,564)
Cash and cash equivalents at beginning of year 28,718 9,598 8,031 89,703 252,708
----------- ------------- ---------- ---------- ----------
Cash and cash equivalents at end of year $ 34,370 $ 16,945 $ 49,746 $ 240 $ 129,144
=========== ============= ========== ========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ENTERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C> <C>
ENTERGY ENTERGY ENTERGY SYSTEM ENTERGY
OPERATING ACTIVITIES: OPERATIONS POWER SERVICES FUELS ENTERPRISES
----------- ------------- ---------- ---------- ----------
(unaudited)
Net Income (Loss) $ - $(10,667) $ - $ - $ (38,021)
Noncash items included in net income
Cumulative effect of a change in accounting principle - - - - -
Change in rate deferrals/ excess capacity - - - - -
Depreciation, amortization and decommissioning 1,283 5,723 17,369 2,661 4,739
Deferred income taxes and investment tax credits 257 37,710 432 (1,521) 1,799
Allowance for equity funds used during construction - - - - -
Equity in earnings of subsidiaries - - - - -
Accrued pension liability - - 2,034 - -
Provisions for estimated losses - - - - -
Changes in working capital:
Receivables (10,471) (5,834) (15,066) 28,172 (4,232)
Fuel inventory - (561) - (9,748) -
Accounts payable 15,147 961 6,857 (17,470) 1,863
Taxes accrued - 3,886 - (6,815) -
Interest accrued - - - - -
Reserve for rate refund
Other working capital accounts 1,659 521 (3,017) (79) 3,734
Common stock dividends received - - - - -
Other deferred credits (1,981) - - - -
Change in decommissioning trust - - - - -
Other (260) (360) 2,989 2,318 18,293
----------- ------------- ---------- ---------- ----------
Net cash flow provided (used) by operating activities 5,364 31,379 11,598 (2,482) (11,825)
----------- ------------- ---------- ---------- ----------
INVESTING ACTIVITIES:
Construction expenditures (549) (1,212) (13,176) - -
Allowance for equity funds used during construction - - - - -
Nuclear fuel sales (expenditures) - net - - - - -
Proceeds from sale/leaseback of nuclear fuel - - - - -
Investment in nonregulated/nonutility properties - - - - (11,027)
Decrease (increase) in other temporary investments - - - - -
Change of investment in subsidiary - - - - -
Other - - - - (37,667)
----------- ------------- ---------- ---------- ----------
Net cash flow used by investing activities (549) (1,212) (13,176) - (48,694)
----------- ------------- ---------- ---------- ----------
FINANCING ACTIVITIES:
Proceeds from issuance of:
General and refunding mortgage bonds - - - - -
Common stock - - - - -
Bank notes and other long-term debt - - (65,000) 7,000 -
Retirement of:
First mortgage bonds - - - - -
General and refunding mortgage bonds - - - - -
Bank notes and other long-term debt - - - (2,201) -
Redemption of preferred stock - - - - -
Dividends paid:
Common stock - - - - -
Preferred stock - - - - -
Change in advances from parent company - 25,192 - - 52,700
Changes in short-term borrowings (6,563) - 10,545 (2,832) -
Other - 3268 - - 17,292
----------- ------------- ---------- ---------- ----------
Net cash flow provided (used) by financing activities (6,563) 28,460 (54,455) 1,967 69,992
----------- ------------- ---------- ---------- ----------
Net increase (decrease) in cash and cash equivalents (1,748) 58,627 (56,033) (515) 9,473
Cash and cash equivalents at beginning of year 2,989 855 66,429 1,536 38,641
----------- ------------- ---------- ---------- ----------
Cash and cash equivalents at end of year $ 1,241 $ 59,482 $ 10,396 $ 1,021 $ 48,114
=========== ============= ========== ========== ==========
</TABLE>
**See note to financial statements
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
CONSOLIDATED ADJUSTMENTS GSU GSG&T
------------ ------------- ------------ -----------
(unaudited) (unaudited)
ASSETS
Utility Plant:
Electric $6,942,983 $ - $6,879,065 $ 63,918
Property under capital leases - electric 77,918 - 77,918 -
Natural gas 45,789 - 45,789 -
Steam products 77,551 - 77,551 -
Construction work in progress 148,043 - 148,043 -
Nuclear fuel under capital leases 69,853 - 69,853 -
----------- ----------- ----------- -----------
Total 7,362,137 - 7,298,219 63,918
Less - Accumulated depreciation and amortization 2,664,943 - 2,622,846 42,097
----------- ----------- ----------- -----------
Utility plant - net 4,697,194 4,675,373 21,821
----------- ----------- ----------- -----------
Other Property and Investments:
Nonutility subsidiary companies - 34,615 34,615 -
Decommissioning trust funds 32,943 - 32,943 -
Other 28,626 - 23,844 5
----------- ----------- ----------- -----------
Total 61,569 34,615 91,402 5
----------- ----------- ----------- -----------
Current Assets:
Cash and cash equivalents:
Cash 13,751 - 12,531 74
Temporary cash investments
Associated Companies 46,336 - 46,336 -
Other 174,517 - 158,701 -
----------- ----------- ----------- -----------
Total cash and cash equivalents 234,604 - 217,568 74
Notes receivable associated companies - 15,770 15,770 -
Accounts receivable:
Customer 111,795 - 111,312 -
Allowance for doubtful accounts (1,608) - (1,608) -
Associated companies 1,395 5,872 4,579 1,921
Other 15,497 - 15,497 -
Accrued unbilled revenues 73,381 - 73,381 -
Deferred fuel costs 31,154 - 31,154 -
Accumulated deferred income taxes 43,465 - 33,534 -
Fuel inventory 32,141 - 32,141 -
Materials and supplies - at average cost 91,288 - 91,280 -
Rate deferrals 97,164 - 97,164 -
Prepayments and other 15,566 724 16,285 -
----------- ----------- ----------- -----------
Total 745,842 22,366 738,057 1,995
----------- ----------- ----------- -----------
Deferred Debits:
Regulatory assets:
Rate deferrals 419,904 - 419,904 -
SFAS 109 regulatory asset - net 453,628 - 453,628 -
Unamortized loss on reacquired debt 61,233 - 61,233 -
Other regulatory assets - - - -
Long-term receivables 224,727 - 224,727 -
Other 196,961 - 196,961 -
----------- ----------- ----------- -----------
Total 1,356,453 - 1,356,453 -
----------- ----------- ----------- -----------
Total $6,861,058 $ 56,981 $6,861,285 $ 23,821
=========== =========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C>
Southern
Gulf Varibus POG
----------- ----------- -----------
(unaudited) (unaudited) (unaudited)
ASSETS
Utility Plant:
Electric $ - $ - $ -
Property under capital leases - electric - - -
Natural gas - - -
Steam products - - -
Construction work in progress - - -
Nuclear fuel under capital leases - - -
----------- ----------- -----------
Total - - -
Less - Accumulated depreciation and amortization - - -
----------- ----------- -----------
Utility plant - net - - -
----------- ----------- -----------
Other Property and Investments:
Nonutility subsidiary companies - - -
Decommissioning trust funds - - -
Other 2,359 2,418 -
----------- ----------- -----------
Total 2,359 2,418 -
----------- ----------- -----------
Current Assets:
Cash and cash equivalents:
Cash 197 943 6
Temporary cash investments
Associated Companies - - -
Other 1,756 11,118 2,942
----------- ----------- -----------
Total cash and cash equivalents 1,953 12,061 2,948
Notes receivable associated companies - - -
Accounts receivable:
Customer - 483 -
Allowance for doubtful accounts - - -
Associated companies 21 - 746
Other - - -
Accrued unbilled revenues - - -
Deferred fuel costs - - -
Accumulated deferred income taxes 2 9,097 832
Fuel inventory - - -
Materials and supplies - at average cost - 8 -
Rate deferrals - - -
Prepayments and other - - 5
----------- ----------- -----------
Total 1,976 21,649 4,531
----------- ----------- -----------
Deferred Debits:
Regulatory assets:
Rate deferrals - - -
SFAS 109 regulatory asset - net - - -
Unamortized loss on reacquired debt - - -
Other regulatory assets - - -
Long-term receivables - - -
Other - - -
----------- ----------- -----------
Total - - -
----------- ----------- -----------
Total $ 4,335 $ 24,067 $ 4,531
=========== =========== ===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
CONSOLIDATED ADJUSTMENTS GSU GSG&T
------------ ------------ ---------- ----------
(unaudited) (unaudited)
CAPITALIZATION AND LIABILITIES
Capitalization:
Common stock, no par value, authorized
200,000,000 shares; issued and outstanding
100 shares in 1995 and 1994 $ 114,055 $ - $ 114,055 $ -
Common stock of subsidiaries - 138 - 25
Paid in capital 1,152,505 88,336 1,152,505 5,273
Capital stock expense and other - - - -
Retained earnings 357,704 (53,859) 357,704 3,973
---------- ---------- ---------- ----------
Total common shareholders' equity 1,624,264 34,615 1,624,264 9,271
Subsidiary's preference stock 150,000 - 150,000 -
Subsidiaries' preferred stock:
Without sinking fund 136,444 - 136,444 -
With sinking fund 87,654 - 87,654 -
Long-term debt 2,175,471 - 2,175,471 -
---------- ---------- ---------- ----------
Total Capitalization 4,173,833 34,615 4,173,833 9,271
---------- ---------- ---------- ----------
Other Noncurrent Liabilities:
Obligations under capital leases 108,078 - 108,078 -
Other 78,245 - 78,245 -
---------- ---------- ---------- ----------
Total 186,323 - 186,323 -
---------- ---------- ---------- ----------
Current Liabilities:
Currently maturing long-term debt 145,425 - 145,425 -
Notes payable associated companies - 15,770 - 11,520
Accounts payable:
Associated companies 31,349 5,872 34,037 -
Other 136,528 - 136,480 -
Customer deposits 21,983 - 21,983 -
Taxes accrued 37,413 - 35,000 2,413
Interest accrued 56,837 724 56,837 617
Nuclear refueling reserve 22,627 - 22,627 -
Obligations under capital leases 37,773 - 37,773 -
Reserve for rate refund - - - -
Other 86,653 - 86,653 -
---------- ---------- ---------- ----------
Total 576,588 22,366 576,815 14,550
---------- ---------- ---------- ----------
Deferred Credits:
Accumulated deferred income taxes 1,177,144 - 1,177,144 -
Accumulated deferred investment tax credits 208,618 - 208,618 -
Deferred River Bend finance charges 58,047 - 58,047 -
Other 480,505 - 480,505 -
---------- ---------- ---------- ----------
Total 1,924,314 - 1,924,314 -
---------- ---------- ---------- ----------
Total $6,861,058 $ 56,981 $6,861,285 $ 23,821
========== ========== ========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEET
DECEMBER 31,1995
(In Thousands)
<S> <C> <C> <C>
Southern
Gulf Varibus POG
---------- ---------- ----------
(unaudited) (unaudited) (unaudited)
CAPITALIZATION AND LIABILITIES
Capitalization:
Common stock, no par value, authorized
200,000,000 shares; issued and outstanding
100 shares in 1995 and 1994 $ - $ - $ -
Common stock of subsidiaries 1 100 12
Paid in capital - 40,467 42,596
Capital stock expense and other - - -
Retained earnings (43) (19,664) (38,125)
---------- ---------- ----------
Total common shareholders' equity (42) 20,903 4,483
Subsidiary's preference stock - - -
Subsidiaries' preferred stock:
Without sinking fund - - -
With sinking fund - - -
Long-term debt - - -
---------- ---------- ----------
Total Capitalization (42) 20,903 4,483
---------- ---------- ----------
Other Noncurrent Liabilities:
Obligations under capital leases - - -
Other - - -
---------- ---------- ----------
Total - - -
---------- ---------- ----------
Current Liabilities:
Currently maturing long-term debt - - -
Notes payable associated companies 4,250 - -
Accounts payable:
Associated companies 20 3,164 -
Other - - 48
Customer deposits - - -
Taxes accrued - - -
Interest accrued 107 - -
Nuclear refueling reserve - - -
Obligations under capital leases - - -
Reserve for rate refund - - -
Other - - -
---------- ---------- ----------
Total 4,377 3,164 48
---------- ---------- ----------
Deferred Credits:
Accumulated deferred income taxes - - -
Accumulated deferred investment tax credits - - -
Deferred River Bend finance charges - - -
Other - - -
---------- ---------- ----------
Total - - -
---------- ---------- ----------
Total $ 4,335 $ 24,067 $ 4,531
========== ========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF INCOME (LOSS)
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
CONSOLIDATED ADJUSTMENTS GSU GSG&T
------------ ------------ ------------ ------------
(unaudited) (unaudited)
Operating Revenues:
Electric $1,788,964 $ 3,618 $1,788,964 $ 3,618
Natural gas 23,715 - 23,715 -
Steam products 49,295 - 49,295 -
------------ ------------ ------------ ------------
Total 1,861,974 3,618 1,861,974 3,618
------------ ------------ ------------ ------------
Operating Expenses:
Operation:
Fuel for electric generation
and fuel-related expenses 516,812 - 516,812 -
Purchased power 169,767 - 169,767 -
Nuclear refueling outage expense 10,607 - 10,607 -
Other operation and maintenance 432,647 3,618 436,147 64
Depreciation and decommissioning 202,224 - 200,723 1,501
Taxes other than income taxes 102,228 - 102,216 -
Income taxes 57,235 - 56,943 292
Amortization of rate deferrals 66,025 - 66,025 -
------------ ------------ ------------ ------------
Total 1,557,545 3,618 1,559,240 1,857
------------ ------------ ------------ ------------
Operating Income 304,429 0 302,734 1,761
------------ ------------ ------------ ------------
Other Income:
Allowance for equity funds used during
construction 1,125 - 1,125 -
Write-off of plant held for future use - - 0 -
Miscellaneous - net 22,573 2,702 23,826 -
Income taxes - (debit) credit (6,009) - (5,567) -
------------ ------------ ------------ ------------
Total 17,689 2,702 19,384 -
------------ ------------ ------------ ------------
Interest and Other Charges:
Interest on long-term debt 191,341 1,350 191,341 1,220
Other interest - net 8,884 - 8,884 -
Allowance for borrowed funds used during
construction (1,026) - (1,026) -
------------ ------------ ------------ ------------
Total 199,199 1,350 199,199 1,220
------------ ------------ ------------ ------------
Net income (loss) 122,919 1,352 122,919 541
Preferred and preference dividend requirements 29,643 - 29,643 -
------------ ------------ ------------ ------------
Earnings (loss) applicable to common stock $ 93,276 $ 1,352 $ 93,276 $ 541
============ ============ ============ ============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF INCOME (LOSS)
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C>
Southern
Gulf Varibus POG
------------ ------------ ------------
(unaudited) (unaudited) (unaudited)
Operating Revenues:
Electric $ - $ - $ -
Natural gas - - -
Steam products - - -
------------ ------------ ------------
Total - - -
------------ ------------ ------------
Operating Expenses:
Operation:
Fuel for electric generation
and fuel-related expenses - - -
Purchased power - - -
Nuclear refueling outage expense - - -
Other operation and maintenance - - 54
Depreciation and decommissioning - - -
Taxes other than income taxes - - 12
Income taxes - - -
Amortization of rate deferrals - - -
------------ ------------ ------------
Total - - 66
------------ ------------ ------------
Operating Income - - (66)
------------ ------------ ------------
Other Income:
Allowance for equity funds used during
construction - - -
Write-off of plant held for future use - - -
Miscellaneous - net 128 1,152 169
Income taxes - (debit) credit - (406) (36)
------------ ------------ ------------
Total 128 746 133
------------ ------------ ------------
Interest and Other Charges:
Interest on long-term debt 130 - -
Other interest - net - - -
Allowance for borrowed funds used during
construction - - -
------------ ------------ ------------
Total 130 - -
------------ ------------ ------------
Net income (loss) (2) 746 67
Preferred and preference dividend requirements - - -
------------ ------------ ------------
Earnings (loss) applicable to common stock $ (2) $ 746 $ 67
============ ============ ============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND
CONSOLIDATED ADJUSTMENTS GSU GSG&T
--------------- ------------------ -------------- --------------
(unaudited) (unaudited)
OPERATING ACTIVITIES:
Net Income (loss) $ 122,919 $ 1,352 $ 122,919 $ 541
Noncash items included in net income (loss)
Change in rate deferrals 66,025 66,025 -
Depreciation and decommissioning 202,224 - 200,723 1,501
Deferred income taxes and investment tax credits 63,231 63,231 -
Allowance for equity funds used during construction (1,125) (1,125) -
Write-off of plant held for future use - - - -
Changes in working capital:
Receivables 40,193 (375) 39,409 216
Fuel inventory (6,357) (6,357) -
Accounts payable (4,820) 728 (5,115) -
Taxes accrued 24,935 24,641 294
Interest accrued 1,510 (210) 1,510 (10)
Other working capital accounts (97,891) 210 (97,875) -
Change in decommissioning trust (8,147) (8,147) -
Other (1,943) 840 (1,899) 1
--------------- ------------------ -------------- --------------
Net cash flow provided (used) by operating activities 400,754 2,545 397,940 2,543
INVESTING ACTIVITIES:
Construction expenditures (185,944) (185,944) -
Allowance for equity funds used during construction 1,125 1,125 -
Nuclear fuel sales (expenditures) - net (1,425) (1,425) -
Proceeds from sale/leaseback of nuclear fuel 542 542 -
--------------- ------------------ -------------- --------------
Net cash flow used by investing activities (185,702) - (185,702) -
FINANCING ACTIVITIES:
Proceeds from issuance of other long-term debt 2,277 2,277 -
Retirement of other long-term debt (50,425) (2,545) (50,425) (2,545)
Redemption of preferred stock (7,283) (7,283) -
Dividends paid:
Common stock - - -
Preferred stock (29,661) (29,661) -
--------------- ------------------ -------------- --------------
Net cash flow used by financing activities (85,092) (2,545) (85,092) (2,545)
Net increase (decrease) in cash and cash equivalents 129,960 - 127,146 (2)
--------------- ------------------ -------------- --------------
Cash and cash equivalents at beginning of year 104,644 90,422 76
--------------- ------------------ -------------- --------------
Cash and cash equivalents at end of year $ 234,604 $ - $ 217,568 $ 74
=============== ================== ============== ==============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1995
(In Thousands)
<S> <C> <C> <C>
Southern
Gulf Varibus POG
--------------- ------------------ --------------
(unaudited) (unaudited) (unaudited)
OPERATING ACTIVITIES:
Net Income (loss) $ (2) $ 746 $ 67
Noncash items included in net income (loss)
Change in rate deferrals - - -
Depreciation and decommissioning - - -
Deferred income taxes and investment tax credits - - -
Allowance for equity funds used during construction - - -
Write-off of plant held for future use - - -
Changes in working capital:
Receivables (1) 158 36
Fuel inventory - - -
Accounts payable 52 971 -
Taxes accrued - - -
Interest accrued (200) - -
Other working capital accounts - 196 (2)
Change in decommissioning trust - - -
Other (317) 1,112 -
--------------- ------------------ --------------
Net cash flow provided (used) by operating activities (468) 3,183 101
INVESTING ACTIVITIES:
Construction expenditures - - -
Allowance for equity funds used during construction - - -
Nuclear fuel sales (expenditures) - net - - -
Proceeds from sale/leaseback of nuclear fuel - - -
--------------- ------------------ --------------
Net cash flow used by investing activities - - -
FINANCING ACTIVITIES:
Proceeds from issuance of other long-term debt - - -
Retirement of other long-term debt - - -
Redemption of preferred stock - - -
Dividends paid:
Common stock - - -
Preferred stock - - -
--------------- ------------------ --------------
Net cash flow used by financing activities - - -
Net increase (decrease) in cash and cash equivalents (468) 3,183 101
--------------- ------------------ --------------
Cash and cash equivalents at beginning of year 2,421 8,878 2,847
--------------- ------------------ --------------
Cash and cash equivalents at end of year $ 1,953 $ 12,061 $ 2,948
=============== ================== ==============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GSU CORPORATION AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
INTERCOMPANY
ELIMINATIONS
AND SOUTHERN
RETAINED EARNINGS CONSOLIDATED ADJUSTMENTS GSU GSG&T GULF VARIBUS POG
------------ ----------- -------- -------- -------- -------- --------
Retained Earnings, January 1, 1995 $ 264,626 $ (55,211) $264,626 $ 3,432 $ (41) $(20,410) $(38,192)
Add:
Net Income (Loss) 122,919 1,352 122,919 541 (2) 746 67
------------ --------- -------- ------- -------- -------- --------
Total 387,545 (53,859) 387,545 3,973 (43) (19,666) (38,125)
------------ --------- -------- ------- -------- -------- --------
Deduct:
Dividends declared on:
Preferred and preference stock 29,482 - 29,482 - - - -
Common stock - - - - - - -
Capital stock and other expenses 395 - 359 - - - -
----------- ---------- ------- ------- -------- -------- --------
Total 29,841 - 29,841 - - - -
----------- ---------- ------- ------- -------- -------- --------
Retained Earnings, December 31, 1995 $ 357,704 $ (53,859) $357,704 $ 3,973 $ (43) $(19,664) $(38,125)
=========== ========== ======= ======= ======== ======== ========
</TABLE>
<PAGE>
THE ARKLAHOMA CORPORATION
BALANCE SHEETS
NOVEMBER 30, 1995 AND 1994
(IN THOUSANDS)
ASSETS
1995 1994
Utility Plant: ------- -------
Electric plant in service - at cost $2,562 $2,562
Less - Accumulated depreciation 2,249 2,249
------- -------
Utility Plant - Net 313 313
------- -------
Current Assets:
Cash and cash equivalents 304 304
Accounts receivable - associated companies 96 78
------- -------
Total 400 382
------- -------
Total $713 $695
======= =======
CAPITALIZATION AND LIABILITIES
Capitalization:
Common stock, $100 par value, authorized
12,000 shares; issued and outstanding, 500
shares $50 $50
Retained earnings 305 579
------- -------
Total 355 629
------- -------
Current Liabilities:
Other accounts payable 8 6
Dividends payable 290 -
------- -------
Total 298 6
Deferred Credits: ------- -------
Deferred Income Taxes (SFAS 109) 60 60
------- -------
Total $713 $695
======= =======
The accompanying notes to financial statements
are an integral part of these balance sheets.
<PAGE>
THE ARKLAHOMA CORPORATION
STATEMENT OF OPERATIONS AND RETAINED EARNINGS
YEARS ENDED NOVEMBER 30, 1995 AND 1994
(IN THOUSANDS)
1995 1994
------ ------
Revenues - Interest income $25 $15
Expenses - Administrative and general 6 6
- Other 1 1
----- -----
Total 7 7
----- -----
Income before Federal
and state income taxes 18 8
Federal and state income taxes 2 2
----- -----
Income before Cumulative Effect of a Change 16 6
in Accounting for Income Taxes
Cumulative Effect of a Change in Accounting - (60)
for Income Taxes
----- -----
Net Income 16 (54)
----- -----
Retained Earnings - beginning of year 579 633
Less: Dividends Declared (290) -
Retained Earnings - end of year $305 $579
==== ====
The accompanying notes to financial statements
are an integral part of these statements.
<PAGE>
THE ARKLAHOMA CORPORATION
STATEMENTS OF CASH FLOWS
YEARS ENDED NOVEMBER 30, 1995 and 1994
(IN THOUSANDS)
1995 1994
OPERATING ACTIVITIES: ------ ------
Net Income $16 ($54)
Cumulative effect of a Change in Accounting
for Income Taxes - 60
Changes in working capital:
Accounts receivable (18) 4
Other current assets - 1
Accounts payable 2 1
Dividends payable 290 -
- ------ ------
Net cash flow provided (used) by
operating activities 290 12
------ ------
FINANCING ACTIVITIES:
Cash dividends declared on common stock (290) -
------ ------
Net increase (decrease) in cash
and cash equivalents 12
Cash and cash equivalents at
beginning of year 304 292
Cash and cash equivalents at ------ ------
end of year 304 304
====== ======
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid (refunded) during the year for
income taxes $640 $0
====== ======
The accompanying notes to financial statements
are an integral part of these statements.
<PAGE>
THE ARKLAHOMA CORPORATION
NOTES TO THE FINANCIAL STATEMENTS
NOVEMBER 30, 1995 AND 1994
1. OPERATIONS:
The Arklahoma Corporation's (the "Company") utility plant consists
principally of transmission facilities which are being leased to its
three stockholder companies from year to year. Pursuant to the terms
of the lease agreement, the lessees have agreed to pay all operating
costs, including maintenance, repairs, insurance and taxes assessed
upon the properties. Such amounts totaled approximately $332,000 and
$1,073,000 in fiscal years 1995 and 1994 respectively.
Under the terms of the current lease agreement, annual rentals have
been discontinued but can be reinstated upon the agreement of the
Company and the lessees.
2. CASH AND CASH EQUIVALENTS:
For purposes of these financial statements, the Company considers all
highly liquid debt instruments purchased with a maturity of three
months or less to be cash equivalents. These investments are carried
at cost which approximates market.
3. UTILITY PLANT:
Through fiscal year 1980, depreciation was provided using a straight-
line rate based on the electric plant's estimated composite service
life of 33 years with a salvage value of 10%. The utility plant
became fully depreciated for financial reporting purposes in fiscal
year 1980, and no depreciation was provided in fiscal years 1981, 1982
or 1983. In 1984, the Company acquired additional property which was
depreciated over the remaining term of the lease. For income tax
reporting purposes, depreciation was calculated using a straight-line
rate with no estimated salvage value and an estimated useful life
extended to December 1988. All property was fully depreciated as of
December 31, 1988.
4. INCOME TAXES:
Effective December 1, 1993, the Company adopted the provisions of
Statement of Financial Accounting Standards ("SFAS") No. 109, "
Accounting for Income Taxes," which changed the criteria for measuring
the provisions for income taxes and recognizing deferred tax assets
and liabilities on the balance sheet. This statement requires the
liability method of accounting for income taxes. Under the liability
method, the deferred tax liability, or asset, is determined based on
the difference between the tax reporting basis and financial reporting
basis of assets and liabilities The effect on deferred taxes of a
change in tax rates will be recognized in income in the period of the
enactment of the rate change standards.
The change in accounting for income taxes is reflected in the 1994
financial statements through a cumulative catch-up adjustment. The
principal effect of this change has been to record the amount of
previously unrecorded deferred tax liabilities in the accompanying
financial statements and to decrease net income by approximately
$60,000.
Deferred income taxes resulted from temporary differences in financial
versus tax basis of fixed assets. The net tax liability is reflected
as a deferred income tax liability in the accompanying balance sheet.
The Company has an Oklahoma state net operating loss carryforward
available to reduce future Oklahoma state income taxes payable. The
carryforward as of November 30, 1995, is approximately $17,000 for
book purposes and approximately $22,000 for tax return purposes, and
begins to expire in 2002.
The Company has an Arkansas state net operating loss carryforward
available to reduce future Arkansas state income taxes payable. The
carryforward as of November 30, 1995, is approximately $1,000 for book
and tax return purposes and begins to expire in 1997.
5. CONTINGENCY:
The Company and each of its three stockholder companies are party to
an action concerning an aircraft colliding into the Company's
transmission line. Management, after consultation with legal counsel,
does not believe that any liability arising out of this claim will
have a material adverse effect on the Company's financial position or
results of operations based on the Company being reimbursed by the
three stockholder companies for all operating costs.
Exhibit B-5(a)
RESTATED ARTICLES OF INCORPORATION
OF
MISSISSIPPI POWER & LIGHT COMPANY
Pursuant to the provisions of Section 64 of the Mississippi
Business Corporation Law (Section 79-3-127, Mississippi Code of
1972, as amended), the undersigned Corporation adopts the
following Restated Articles of Incorporation:
FIRST: The name of the Corporation is MISSISSIPPI POWER &
LIGHT COMPANY.
SECOND: The period of its duration is ninety-nine (99)
years.
THIRD: The purpose or purposes which the Corporation is
authorized to pursue are:
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, finance, deal in, construct, build, equip, improve, use,
operate, maintain and work upon:
(a) Any and all kinds of plants and systems for the
manufacture, production, storage, utilization, purchase,
sale, supply, transmission, distribution or disposition of
electricity, natural or artificial gas, water or steam, or
power produced thereby, or of ice and refrigeration of any
and every kind;
(b) Any and all kinds of telephone, telegraph, radio,
wireless and other systems, facilities and devices for the
receipt and transmission of sounds and signals, any and all
kinds of interurban, city and street railways and railroads
and bus lines for the transportation of passengers and/or
freight, transmission lines, systems, appliances, equipment
and devices and tracks, stations, buildings and other
structures and facilities;
(c) Any and all kinds of works, power plants,
manufactories, structures, substations, systems, tracks,
machinery, generators, motors, lamps, poles, pipes, wires,
cables, conduits, apparatus, devices, equipment, supplies,
articles and merchandise of every kind pertaining to or in
anywise connected with the construction, operation or
maintenance of telephone, telegraph, radio, wireless and
other systems, facilities and devices for the receipt and
transmission of sounds and signals, or of interurban, city
and street railways and railroads and bus lines, or in
anywise connected with or pertaining to the manufacture,
production, purchase, use, sale, supply, transmission,
distribution, regulation, control or application of
electricity, natural or artificial gas, water, steam, ice,
refrigeration and power or any other purposes;
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, transmit, distribute, deal in, use, manufacture, produce,
furnish and supply street and interurban railway and bus service,
electricity, natural or artificial gas, light, heat, ice,
refrigeration, water and steam in any form and for any purposes
whatsoever, and any power or force or energy in any form and for
any purposes whatsoever;
To buy, sell, manufacture, produce and generally deal in
milk, cream and any articles or substances used or usable in or
in connection with the manufacture and production of ice cream,
ices, beverages and soda fountain supplies; to buy, sell,
manufacture, produce and generally deal in ice cream and ices;
To acquire, organize, assemble, develop, build up and
operate constructing and operating and other organizations and
systems, and to hire, sell, lease, exchange, turn over, deliver
and dispose of such organizations and systems in whole or in part
and as going organizations and systems and otherwise, and to
enter into and perform contracts, agreements and undertakings of
any kind in connection with any or all the foregoing powers;
To do a general contracting business;
To purchase, acquire, develop, mine, explore, drill, hold,
own and dispose of lands, interests in and rights with respect to
lands and waters and fixed and movable property;
To borrow money and contract debts when necessary for the
transaction of the business of the Corporation or for the
exercise of its corporate rights, privileges or franchises or for
any other lawful purpose of its incorporation; to issue bonds,
promissory notes, bills of exchange, debentures and other
obligations and evidences of indebtedness payable at a specified
time or times or payable upon the happening of a specified event
or events, whether secured by mortgage, pledge or otherwise or
unsecured, for money borrowed or in payment for property
purchased or acquired or any other lawful objects;
To guarantee, purchase, hold, sell, assign, transfer,
mortgage, pledge or otherwise dispose of the shares of the
capital stock of, or any bonds, securities or evidences of
indebtedness created by, any other corporation or corporations of
the State of Mississippi or any other state or government and,
while the owner of such stock, to exercise all the rights, powers
and privileges of individual ownership with respect thereto
including the right to vote thereon, and to consent and otherwise
act with respect thereto;
To aid in any manner any corporation or association,
domestic or foreign, or any firm or individual, any shares of
stock in which or any bonds, debentures, notes, securities,
evidences of indebtedness, contracts or obligations of which are
held by or for the Corporation or in which or in the welfare of
which the Corporation shall have any interest, and to do any acts
designed to protect, preserve, improve or enhance the value of
any property at any time held or controlled by the Corporation,
or in which it may be at any time interested; and to organize or
promote or facilitate the organization of subsidiary companies;
To purchase, hold, sell and transfer shares of its own
capital stock, provided that the Corporation shall not purchase
its own shares of capital stock except from surplus of its assets
over its liabilities including capital; and provided, further,
that the shares of its own capital stock owned by the Corporation
shall not be voted upon directly or indirectly nor counted as
outstanding for the purposes of any stockholders' quorum or vote;
In any manner to acquire, enjoy, utilize and to dispose of
patents, copyrights and trade-marks and any licenses or other
rights or interests therein and thereunder:
To purchase, acquire, hold, own or dispose of franchises,
concessions, consents, privileges and licenses necessary for and
in its opinion useful or desirable for or in connection with the
foregoing powers;
To do all and everything necessary and proper for the
accomplishment of the objects enumerated in these Restated
Articles of Incorporation or any amendment thereof or necessary
or incidental to the protection and benefits of the Corporation,
and in general to carry on any lawful business necessary or not
incidental to the attainment of the objects of the Corporation
whether or not such business is similar in nature to the objects
set forth in these Restated Articles of Incorporation or any
amendment thereof.
To do any or all things herein set forth, to the same extent
and as fully as natural persons might or could do, and in any
part of the world, and as principal, agent, contractor or
otherwise, and either alone or in conjunction with any other
persons, firms, associations or corporations;
To conduct its business in all its branches in the State of
Mississippi, other states, the District of Columbia, the
territories and colonies of the United States, and any foreign
countries, and to have one or more offices out of the State of
Mississippi and to hold, purchase, mortgage and convey real and
personal property both within and without the State of
Mississippi; provided, however, that the Corporation shall not
exercise any of the powers set forth herein for the purpose of
engaging in business as a street railway, telegraph or telephone
company unless prior thereto this Article Third shall have been
amended to set forth a description of the line and the points it
will traverse.
FOURTH: The aggregate number of shares which the Corporation
shall have authority to issue is 17,004,478 shares, divided into
2,004,476 shares of Preferred Stock of the par value of $100 per
share and 15,000,000 shares of Common Stock without par value.
The preferences, limitations and relative rights in respect
of the shares of each class and the variations in the relative
rights and preferences as between series of any preferred or
special class in series are as follows:
The Preferred Stock shall be issuable in one or more series
from time to time and the shares of each series shall have the
same rank and be identical with each other and shall have the
same relative rights except with respect to the following:
(a) The number of shares to constitute each such series
and the distinctive designation thereof;
(b) The annual rate or rates of dividends payable on
shares of such series, the dates on which dividends shall be
paid in each year and the date from which such dividends
shall commence to accumulate;
(c) The amount or amounts payable upon redemption
thereof; and
(d) The sinking fund provisions, if any, for the
redemption or purchase of shares;
which different characterics of clauses (a), (b), (c) and (d)
above may be stated and expressed with respect to each series in
the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors or in these Restated
Articles of Incorporation of any amendment thereof.
A series of 60,000 shares of Preferred Stock shall:
(a) be designated "4.36% Preferred Stock Cumulative,
$100 Par Value";
(b) have a dividend rate of $4.36 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be
February 1, 1963, and such dividends to be cumulative from
the last date to which dividends upon the 4.36% Preferred
Stock Cumulative, $100 Par Value, of Mississippi Power &
Light Company, a Florida corporation, are paid;
(c) be subject to redemption in the manner provided
herein with respect to the Preferred Stock at the price of
$105.36 per share if redeemed on or before February 1, 1964,
and of $103.88 per share if redeemed after February 1, 1964,
in each case plus an amount equivalent to the accumulated
and unpaid dividends thereon, if any, to the date fixed for
redemption.
A series of 44,476 shares of the Preferred Stock shall:
(a) be designated "4.56% Preferred Stock, Cumulative,
$100 Par Value";
(b) have a dividend rate of $4.56 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be
February 1, 1963, and such dividends to be cumulative from
the last date to which dividends upon the 4.56% Preferred
Stock, Cumulative, $100 Par Value, of Mississippi Power &
Light Company, a Florida corporation, are paid; and
(c) be subject to redemption in the manner provided
herein with respect to the Preferred Stock at the price of
$108.50 per share if redeemed on or before November 1, 1964,
and of $107.00 per share if redeemed after November 1, 1964,
in each case plus an amount equivalent to the accumulated
and unpaid dividends thereon, if any, to the date fixed for
redemption.
A series of 100,000 shares of the Preferred Stock shall:
(a) be designated "4.92% Preferred Stock, Cumulative,
$100 Par Value";
(b) have a dividend rate of $4.92 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be
February 1, 1966, and such dividends to be cumulative from
the date of issue of said series; and
(c) be subject to redemption at the price of $106.30 per
share if redeemed on or before January 1, 1971, of $104.38
per share if redeemed after January 1, 1971 and on or before
January 1, 1976, and of $102.88 per share if redeemed after
January 1, 1976, in each case plus an amount equivalent to
the accumulated and unpaid dividends thereon, if any, to the
date fixed for redemption.
A series of 75,000 shares of the Preferred Stock shall:
(a) be designated "9.16% Preferred Stock, Cumulative,
$100 Par Value";
(b) have a dividend rate of $9.16 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be
November 1, 1970, and such dividends to be cumulative from
the date of issue of said series; and
(c) be subject to redemption at the price of $110.93 per
share if redeemed on or before August 1, 1975, of $108.64
per share if redeemed after August 1, 1975 and on or before
August 1, 1980, of $106.35 per share if redeemed after
August 1, 1980 and on or before August 1, 1985, and of
$104.06 per share if redeemed after August 1, 1985, in each
case plus an amount equivalent to the accumulated and unpaid
dividends thereon, if any, to the date fixed for redemption;
provided, however, that no share of the 9.16% Preferred
Stock, Cumulative, $100 Par Value, shall be redeemed prior
to August 1, 1975 if such redemption is for the purpose or
in anticipation of refunding such share through the use,
directly or indirectly, of funds borrowed by the
Corporation, or through the use, directly or indirectly, of
funds derived through the issuance by the Corporation of
stock ranking prior to or on a parity with the 9.16%
Preferred Stock, Cumulative, $100 Par Value, as to dividends
or assets, if such borrowed funds have an effective interest
cost to the Corporation (computed in accordance with
generally accepted financial practice) or such stock has an
effective dividend cost to the Corporation (so computed) of
less than the effective dividend cost to the Corporation of
the 9.16% Preferred Stock, Cumulative, $100 Per Value.
A series of 100,000 shares of the Preferred Stock shall:
(a) be designated "7.44% Preferred Stock, Cumulative,
$100 Par Value";
(b) have a dividend rate of $7.44 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be May
1, 1973, and such dividends to be cumulative from February
14, 1973; and
(c) be subject to redemption at the price of $108.39 per
share if redeemed on or before February 1, 1978, of $106.53
per share if redeemed after February 1, 1978 and on or
before February 1, 1983, of $104.67 per share if redeemed
after February 1, 1983 and on or before February 1, 1988,
and of $102.81 per share if redeemed after February 1, 1988,
in each case plus an amount equivalent to the accumulated
and unpaid dividends thereon, if any, to the date fixed for
redemption; provided, however, that no share of the 7.44%
Preferred Stock, Cumulative, $100 Par Value, shall be
redeemed prior to February 1, 1978 if such redemption is for
the purpose or in anticipation of refunding such share
through the use, directly or indirectly, of funds borrowed
by the Corporation, or through the use, directly or
indirectly, of funds derived through the issuance by the
Corporation of stock ranking prior to or on a parity with
the 7.44% Preferred Stock, Cumulative, $100 Par Value, as to
dividends or assets, if such borrowed funds have an
effective interest cost to the Corporation (computed in
accordance with generally accepted financial practice) or
such stock has an effective dividend cost to the Corporation
(so computed) of less than the effective dividend cost to
the Corporation of the 7.44% Preferred Stock, Cumulative,
S100 Par Value.
A series of 200,000 shares of the Preferred Stock shall:
(a) be designated "17% Preferred Stock, Cumulative, $100
Par Value"
(b) have a dividend rate of $17.00 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be
November 1, 1981, and such dividends to be cumulative from
the date of issuance;
(c) be subject to redemption at the price of $117.00 per
share if redeemed on or before September 1, 1986, of $112.75
per share if redeemed after September 1, 1986 and on or
before September 1, 1991, of $108.50 per share if redeemed
after September 1, 1991 and on or before September 1, 1996,
and of $104.25 per share if redeemed after September 1,
1996, in each case plus an amount equivalent to the
accumulated and unpaid dividends thereon, if any, to the
date fixed for redemption; provided, however, that no share
of the 17% Preferred Stock Cumulative, $100 Par Value, shall
be redeemed prior to September 1, 1986 if such redemption is
for the purpose or in anticipation of refunding such share
through the use, directly or indirectly, of funds borrowed
by the Corporation or through the use, directly or
indirectly, of funds derived through the issuance by the
Corporation of stock ranking prior to or on a parity with
the 17% Preferred Stock, Cumulative, $100 Par Value, as to
dividends or assets if such borrowed funds have an effective
interest cost to the Corporation (computed in accordance
with generally accepted financial practice) or such stock;
has an effective dividend cost to the Corporation (so
computed) of less than the effective dividend cost to the
Corporation of the 17% Preferred Stock, Cumulative, $100 Par
Value; and
(d) be subject to redemption as and for a sinking fund
as follows: On September 1, 1986 and on each September 1
thereafter (each such date being hereinafter referred to as
a "17% Sinking Fund Redemption Date"), for so long as any
shares of the 17% Preferred Stock, Cumulative, $100 Par
Value, shall remain outstanding, the Corporation shall
redeem, out of funds legally available therefor, 10,000
shares of the 17% Preferred Stock, Cumulative, $100 Par
value (or the number of shares then outstanding if less than
10,000) at the sinking fund redemption price of $100 per
share plus, as to each share so redeemed, an amount
equivalent to the accumulated and unpaid dividends thereon,
if any, to the date of redemption (the obligation of the
Corporation so to redeem the shares of the 17% Preferred
Stock, Cumulative, $100 Par Value, being hereinafter
referred to as the "17% Sinking Fund Obligation"); the 17%
Sinking Fund Obligation shall be cumulative; if on any 17%
Sinking Fund Redemption Date, the Corporation shall not have
funds legally available therefor sufficient to redeem the
full number of shares required to be redeemed on that date,
the 17% Sinking Fund Obligation with respect to the shares
not redeemed shall carry forward to each successive 17%
Sinking Fund Redemption Date until such shares shall have
been redeemed; whenever on any 17% Sinking Fund Redemption
Date, the funds of the Corporation legally available for the
satisfaction of the 17% Sinking Fund Obligation and all
other sinking fund and similar obligations then existing
with respect to any other class or series of its stock
ranking on a parity as to dividends or assets with the 17%
Preferred Stock, Cumulative, $100 Par Value (such Obligation
and obligations collectively being hereinafter referred to
as the "Total Sinking Fund Obligation") are insufficient to
permit the Corporation to satisfy fully its Total Sinking
Fund Obligation on that date, the Corporation shall apply to
the satisfaction of its 17% Sinking Fund Obligation on that
date that proportion of such legally available funds which
is equal to the ratio of such 17% Sinking Fund Obligation to
such Total Sinking Fund Obligation; in addition to the 17%
Sinking Fund Obligation, the Corporation shall have the
option, which shall be noncumulative, to redeem, upon
authorization of the Board of Directors, on each 17% Sinking
Fund Redemption Date, at the aforesaid sinking fund
redemption price, up to 10,000 additional shares of the 17%
Preferred Stock, Cumulative, $100 Par Value; the Corporation
shall be entitled, at its election, to credit against its
17% Sinking Fund Obligation on any 17% Sinking Fund
Redemption Date any shares of the 17% Preferred Stock,
Cumulative, Stock Par Value (including shares of the 17%
Preferred Stock, Cumulative, $100 Par Value optionally
redeemed at the aforesaid sinking fund price) theretofore
redeemed (other than shares of the 17% Preferred Stock,
Cumulative, $100 Par Value redeemed pursuant to the 17%
Sinking Fund Obligation) purchased or otherwise acquired and
not previously credited against the 17% Sinking Fund
Obligation.
A series of 100,000 shares of the Preferred Stock shall:
(a) be designated "14-3/4% Preferred Stock, Cumulative,
$100 Par Value";
(b) have a dividend rate of $14.75 per share per annum
payable quarterly on February 1, May 1, August 1 and
November 1 of each year, the first dividend date to be May 1
1982, and such dividends to be cumulative from the date of
issuance;
(c) be subject to redemption at the price of $114.75 per
share if redeemed after the issuance and sale and on or
before March 1, 1983, $113.11 per share if redeemed after
March 1, 1983 and on or before March 1, 1984, $111.47 per
share if redeemed after March 1, 1984 and on or before March
1, 1985, $109.83 per share if redeemed after March 1, 1985
and on or before March 1, 1986, $108.19 per share if
redeemed after March 1, 1986 and on or before March 1, 1987,
$106.56 per share if redeemed after March 1, 1987 and on or
before March 1, 1988, $104.92 per share if redeemed after
March 1, 1988 and on or before March 1, 1989, $103.28 per
share if redeemed after March 1, 1989 and on or before March
1, l990, $101.64 per share if redeemed after March 1, 1990
and on or before March 1, 1991, and $100.00 per share if
redeemed after March 1, 1991, in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon,
if any, to the date fixed for redemption; provided, however,
that no share of the 14-3/4% Preferred Stock, Cumulative,
$100 Par Value, shall be redeemed prior to March 1, 1987 if
such redemption is for the purpose or in anticipation of
refunding such share through the use, directly or
indirectly, of funds borrowed by the Corporation, or through
the use, directly or indirectly, of funds derived through
the issuance by the Corporation of stock ranking prior to or
on a parity with the 14-3/4% Preferred Stock, Cumulative,
$100 Par Value, as to dividends or assets, if such borrowed
funds have an effective interest cost to the Corporation
(computed in accordance with generally accepted financial
practice) or such stock has an effective dividend cost to
the Corporation (so computed) of less than the effective
dividend cost to the Corporation of the 14-3/4% Preferred
Stock, Cumulative, $100 Par Value; and
(d) be subject to redemption as and for a sinking fund
as follows. On March 1, 1990, 1991 and 1992 (each such date
being hereinafter referred to as a "14-3/4% Sinking Fund
Redemption Date"), the Corporation shall redeem, out of
funds legally available therefor, 33,333, 33,333 and 33,334
shares, respectively, of the 14-3/4% Preferred Stock,
Cumulative, $100 Par Value, at the sinking fund redemption
price of $100 per share plus, as to each share so redeemed,
an amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date of redemption (the obligation
of the Corporation so to redeem the shares of the 14-3/4%
Preferred Stock, Cumulative, $100 Par Value, being
hereinafter referred to as the "14-3/4% Sinking Fund
Obligation"); the 14-3/4% Sinking Fund Obligation shall be
cumulative; if on any 14-3/4% Sinking Fund Redemption Date,
the Corporation shall not have funds legally available
therefor sufficient to redeem the full number of shares
required to be redeemed on that date, the 14-3/4% Sinking
Fund Obligation with respect to the shares not redeemed
shall carry forward to each successive 14-3/4% Sinking Fund
Redemption Date (or, in the event the 14-3/4% Sinking Fund
Obligation is not satisfied on March 1, 1992, to such date
as soon thereafter as funds are legally available to satisfy
the 14-3/4% Sinking Fund Obligation) until such shares shall
have been redeemed; whenever on any 14-3/4% Sinking Fund
Redemption Date, the funds of the Corporation legally
available for the satisfaction of the 14-3/4% Sinking Fund
Obligation and all other sinking fund and similar
obligations then existing with respect to any other class or
series of its stock ranking on a parity as to dividends or
assets with the 14-3/4% Preferred Stock, Cumulative, $100
Par Value (such Obligation and obligations collectively
being hereinafter referred to as the "Total Sinking Fund
Obligation") are insufficient to permit the Corporation to
satisfy fully its Total Sinking Fund Obligation on that
date, the Corporation shall apply to the satisfaction of its
14-3/4% Sinking Fund Obligation on that date that proportion
of such legally available funds which is equal to the ratio
of such 14-3/4% Sinking Fund Obligation to such Total
Sinking Fund Obligation.
A series of 100,000 shares of the Preferred Stock shall:
(a) be designated "12.00% Preferred Stock, Cumulative,
$100 Par Value";
(b) have a dividend rate of $12.00 per share per annum
payable quarterly on February 1, May 1, August 1 and
November l of each year, the first dividend date to be May
1, 1983, and such dividends to be cumulative from the date
of issuance;
(c) be subject to redemption at the price of $112.00 per
share if redeemed on or before March 1, 1988, of $109.00 per
share if redeemed after March 1, 1988 and on or before March
1, 1993, of $106.00 per share if redeemed after March 1,
1993 and on or before March 1, 1998, and of $103.00 per
share if redeemed after March 1, 1998, in each case plus an
amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption; provided,
however, that no share of the 12.00% Preferred Stock,
Cumulative, $100 Par Value, shall be redeemed prior to March
1, 1988 if such redemption is for the purpose or in anticipa
tion of refunding such share through the use, directly or
indirectly, of funds borrowed by the Corporation, or through
the use, directly or indirectly, of funds derived through
the issuance by the Corporation of stock ranking prior to or
on a parity with the 12.00% Preferred Stock, Cumulative,
$100 Par Value, as to dividends or assets, if such borrowed
funds have an effective interest cost to the Corporation
(computed in accordance with generally accepted financial
practice) or such stock has an effective dividend cost to
the Corporation (so computed) of less than 12.7497% to per
annum; and
(d) be subject to redemption as and for a sinking fund
as follows: on March 1, 1888 and on each March 1 thereafter
(each such date being hereinafter referred to as a "12.00%
Sinking Fund Redemption Date"), for so long as any shares of
the 12.00% Preferred Stock, Cumulative, $100 Par Value,
shall remain outstanding, the Corporation shall redeem, out
of funds legally available therefor, 5,000 shares of the
12.00% Preferred Stock, Cumulative, $100 Par Value (or the
number of shares then outstanding if less than 5,000) at the
sinking fund redemption price of $100 per share plus, as to
each share so redeemed, an amount equivalent to the
accumulated and unpaid dividends thereon, if any, to the
date of redemption (the obligation of the Corporation so to
redeem the shares of the 12.00% Preferred Stock, Cumulative,
$100 Par Value, being hereinafter referred to as the "12.00%
Sinking Fund Obligation"); the 12.00% Sinking Fund
Obligation shall be cumulative; if on any 12.00% Sinking
Fund Redemption Date, the Corporation shall not have funds
legally available therefor sufficient to redeem the full
number of shares required to be redeemed on that date, the
12.00% Sinking Fund Obligation with respect to the shares
not redeemed shall carry forward to each successive 12.00%
Sinking Fund Redemption Date until such shares shall have
been redeemed; whenever on any 12.00% Sinking Fund
Redemption Date, the funds of the Corporation legally
available for the satisfaction of the 12.00% Sinking Fund
Obligation and all other sinking fund and similar
obligations then existing with respect to any other class or
series of its stock ranking on a parity as to dividends or
assets with the 12.00% Preferred Stock Cumulative, $100 Par
Value (such Obligation and obligations collectively being
hereinafter referred to as the "Total Sinking Fund
Obligation") are insufficient to permit the Corporation to
satisfy fully its Total Sinking Fund Obligation on that
date, the Corporation shall apply to the satisfaction of its
12.00% Sinking Fund Obligation on that date that proportion
of such legally available funds which is equal to the ratio
of such 12.00% Sinking Fund Obligation to such Total Sinking
Fund Obligation; in addition to the 12.00% Sinking Fund
Obligation, the Corporation shall have the option, which
shall be noncumulative, to redeem, upon authorization of the
Board of Directors, on each 12.00% Sinking Fund Redemption
Date, at the aforesaid sinking fund redemption price, up to
5,000 additional shares of the 12.00% Preferred Stock
Cumulative, $100 Par Value; the Corporation shall be
entitled, at its election, to credit against its 12.00%
Sinking Fund Obligation on any 12.00% Sinking Fund
Redemption Date any shares of the 12.00% Preferred Stock,
Cumulative, $100 Par Value (including shares of the 12.00%
Preferred Stock Cumulative, $100 Par Value optionally
redeemed at the aforesaid sinking fund price) theretofore
redeemed (other than shares of the 12.00% Preferred Stock,
Cumulative, $100 Par Value redeemed pursuant to the 12.00%
Sinking Fund Obligation) purchased or otherwise acquired and
not previously credited against the 12.00% Sinking Fund
Obligation.
Subject to the foregoing, the distinguishing characteristics
of the Preferred Stock shall be:
(A) Each series of the Preferred Stock, pari passu with all
shares of preferred stock of any class or series then
outstanding, shall be entitled but only when and as declared by
the Board of Directors, out of funds legally available for the
payment of dividends in preference to the Common Stock, to
dividends at the rate stated and expressed with respect to such
series herein or by the resolution or resolutions providing for
the issue of such series adopted by the Board of Directors; such
dividends to be cumulative from such date and payable on such
dates in each year as may be stated and expressed in said
resolution, to stockholders of record as of a date not to exceed
40 days and not less than 10 days preceding the dividend payment
dates so fixed.
(B) If and when dividends payable on any of the Preferred
Stock of the Corporation at any time outstanding shall be in
default in an amount equal to four full quarterly payments or
more per share, and thereafter until all dividends on any such
preferred stock in default shall have been paid, the holders of
the Preferred Stock pari passu with the holders of other
preferred stock then outstanding, voting separately as a class,
shall be entitled to elect the smallest number of directors
necessary to constitute a majority of the full Board of
Directors, and, except as provided in the following paragraph,
the holders of the Common Stock, voting separately as a class,
shall be entitled to elect the remaining directors of the
Corporation. The terms of office, as directors, of all persons
who may be directors of the Corporation at the time shall
terminate upon the election of a majority of the Board of
Directors by the holders of the Preferred Stock except that if
the holders of the Common Stock shall not have elected the
remaining directors of the Corporation, then, and only in that
event, the directors of the Corporation in office just prior to
the election of a majority of the Board of Directors by the
holders of the Preferred Stock shall elect the remaining
directors of the Corporation. Thereafter, while such default
continues and the majority of the Board of Directors is being
elected by the holders of the Preferred Stock, the remaining
directors, whether elected by directors, as aforesaid, or whether
originally or later elected by holders of the Common Stock shall
continue in office until their successors are elected by holders
of the Common Stock and shall qualify.
If and when all dividends then in default on the Preferred
Stock; then outstanding shall be paid (such dividends to be
declared and paid out of any funds legally available therefor as
soon as reasonably practicable), the holders of the Preferred
Stock shall be divested of any special right with respect to the
election of directors, and the voting power of the holders of the
Preferred Stock and the holders of the Common Stock shall revert
to the status existing before the first dividend payment date on
which dividends on the Preferred Stock were not paid in full, but
always subject to the same provisions for vesting such special
rights in the holders of the Preferred Stock in case of further
like defaults in the payment of dividends thereon as described in
the immediately foregoing paragraph. Upon termination of any such
special voting right upon payment of all accumulated and unpaid
dividends on the Preferred Stock, the terms of office of all
persons who may have been elected directors of the Corporation by
vote of the holders of the Preferred Stock as a class, pursuant
to such special voting right shall forthwith terminate, and the
resulting vacancies shall be filled by the vote of a majority of
the remaining directors.
In case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Preferred
Stock, voting separately as a class, the remaining directors
elected by the holders of the Preferred Stock, by affirmative
vote of a majority thereof, or the remaining director so elected
if there be but one, may elect a successor or successors to hold
office for the unexpired term or terms of the director or
directors whose place or places shall be vacant. Likewise, in
case of any vacancy in the office of a director occurring among
the directors not elected by the holders of the Preferred Stock,
the remaining directors not elected by the holders of the
Preferred Stock, by affirmative vote of a majority thereof, or
the remaining director so elected if there be but one, may elect
a successor or successors to hold office for the unexpired term
or terms of the director or directors whose place or places shall
be vacant.
Whenever the right shall have accrued to the holders of the
Preferred Stock to elect directors, voting separately as a class,
it shall be the duty of the President, a Vice-President or the
Secretary of the Corporation forthwith to call and cause notice
to be given to the shareholders entitled to vote of a meeting to
be held at such time as the Corporation's officers may fix, not
less than forty-five nor more than sixty days after the accrual
of such right, for the purpose of electing directors. The notice
so given shall be mailed to each holder of record of preferred
stock at his last known address appearing on the books of the
Corporation and shall set forth, among other things, (i) that by
reason of the fact that dividends payable on preferred stock are
in default in an amount equal to four full quarterly payments or
more per share, the holders of the Preferred Stock, voting
separately as a class, have the right to elect the smallest
number of directors necessary to constitute a majority of the
full Board of Directors of the Corporation, (ii) that any holder
of the Preferred Stock has the right, at any reasonable time, to
inspect, and make copies of, the list or lists of holders of the
Preferred Stock maintained at the principal office of the
Corporation or at the office of any Transfer Agent of the
Preferred Stock, and (iii) either the entirety of this paragraph
or the substance thereof with respect to the number of shares of
the Preferred Stock required to be represented at any meeting, or
adjournment thereof, called for the election of directors of the
Corporation. At the first meeting of stockholders held for the
purpose of electing directors during such time as the holders of
the Preferred Stock shall have the special right, voting
separately as a class, to elect directors, the presence in person
or by proxy of the holders of a majority of the outstanding
Common Stock shall be required to constitute a quorum of such
class for the election of directors, and the presence in person
or by proxy of the holders of a majority of the outstanding
Preferred Stock shall be required to constitute a quorum of such
class for the election of directors; provided, however, that in
the absence of a quorum of the holders of the Preferred Stock, no
election of directors shall be held, but a majority of the
holders of the Preferred Stock who are present in person or by
proxy shall have power to adjourn the election of the directors
to a date not less than fifteen nor more than fifty days from the
giving of the notice of such adjourned meeting hereinafter
provided for; and provided, further, that at such adjourned
meeting, the presence in person or by proxy of the holders of 35%
of the outstanding Preferred Stock shall be required to
constitute a quorum of such class for the election of directors.
In the event such first meeting of stockholders shall be so
adjourned, it shall be the duty of the President, a Vice-
President or the Secretary of the Corporation, within ten days
from the date on which such first meeting shall have been
adjourned, to cause notice of such adjourned meeting to be given
to the shareholders entitled to vote thereat, such adjourned
meeting to be held not less than fifteen days nor more than fifty
days from the giving of such second notice. Such second notice.
shall be given in the form and manner hereinabove provided for
with respect to the notice required to be given of such first
meeting of stockholders, and shall further set forth that a
quorum was not present at such first meeting and that the holders
of 35% of the outstanding Preferred Stock shall be required to
constitute a quorum of such class for the election of directors
at such adjourned meeting. If the requisite quorum of holders of
the Preferred Stock shall not be present at said adjourned
meeting, then the directors of the Corporation then in office
shall remain in office until the next Annual Meeting of the
Corporation, or special meeting in lieu thereof and until their
successors shall have been elected and shall qualify. Neither
such first meeting nor such adjourned meeting shall be held on a
date within sixty days of the date of the next Annual Meeting of
the Corporation, or special meeting in lieu thereof. At each
Annual Meeting of the Corporation, or special meeting in lieu
thereof, held during such time as the holders of the Preferred
Stock, voting separately as a class. shall have the right to
elect a majority of the Board of Directors, the foregoing
provisions of this paragraph shall govern each Annual Meeting, or
special meeting in lieu thereof, as if said Annual Meeting or
special meeting were the first meeting of stockholders held for
the purpose of electing directors after the right of the holders
of the Preferred Stock, voting separately as a class, to elect a
majority of the Board of Directors, should have accrued the
exception, that if, at any adjourned annual meeting, or special
meeting in lieu thereof, the holders of 35% of the outstanding
Preferred Stock are not present in person or by proxy, all the
directors shall be elected by a vote of the holders of a majority
of the Common Stock of the Corporation present or represented at
the meeting.
(C) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of at least
two-thirds of the total number of shares of the Preferred Stock
then outstanding:
(1) create, authorize or issue any new stock which,
after issuance would rank prior to the Preferred Stock as to
dividends, in liquidation, dissolution, winding up or
distribution, or create, authorize or issue any security
convertible into shares of any such stock except for the
purpose of providing funds for the redemption of all of the
Preferred Stock then outstanding, such new stock or security
not to be issued until such redemption shall have been
authorized and notice of such redemption given and the
aggregate redemption price deposited as provided in
paragraph (G) below; provided, however, that any such new
stock or security shall be issued within twelve months after
the vote of the Preferred Stock herein provided for
authorizing the issuance of such new stock or security; or
(2) amend, alter, or repeal any of the rights,
preferences or powers of the holders of the Preferred Stock
so as to affect adversely any such rights, preferences or
powers; provided, however, that if such amendment,
alteration or repeal affects adversely the rights,
preferences or powers of one or more, but not all, series of
Preferred Stock at the time outstanding, only the consent of
the holders of at least two-thirds of the total number of
outstanding shares of all series so affected shall be
required; and provided, further, that an amendment to
increase or decrease the authorized amount of Preferred
Stock or to create or authorize, or increase or decrease the
amount of, any class of stock; ranking on a parity with the
outstanding shares of the Preferred Stock as to dividends or
assets shall not be deemed to affect adversely the rights,
preferences or powers of the holders of the Preferred Stock
or any series thereof.
(D) So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not, without the consent
(given by vote at a meeting called for that purpose) of the
holders of a majority of the total number of shares of the
Preferred Stock then outstanding:
(1) merge or consolidate with or into any other
corporation or corporations or sell or otherwise dispose of
all or substantially all of the assets of the Corporation,
unless such merger or consolidation or sale or other
disposition, or the exchange, issuance or assumption of all
securities to be issued or assumed in connection with any
such merger or consolidation or sale or other disposition,
shall have been ordered, approved or permitted under the
Public Utility Holding Company Act of 1935; or
(2) issue or assume any unsecured notes, debentures or
other securities representing unsecured indebtedness for
purposes other than (i) the refunding of outstanding
unsecured indebtedness theretofore issued or assumed by the
Corporation resulting in equal or longer maturities, or (ii)
the reacquisition, redemption or other retirement of all
outstanding shares of the Preferred Stock, if immediately
after such issue or assumption, the total principal amount
of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by the
Corporation, including unsecured indebtedness then to be
issued or assumed (but excluding the principal amount then
outstanding of any unsecured notes, debentures, or other
securities representing unsecured indebtedness having a
maturity in excess of ten (10) years and in amount not
exceeding 10% of the aggregate of (a) and (b) of this
section below) would exceed ten per centum (10%) of the
aggregate of (a) the total principal amount of all bonds or
other securities representing secured indebtedness issued or
assumed by the Corporation and then to be outstanding, and
(b) the capital and surplus of the Corporation as then to be
stated on the books of account of the Corporation. When
unsecured notes, debentures or other securities representing
unsecured debt of a maturity in excess of ten (10) years
shall become of a maturity of ten (10) years or less, it
shall then be regarded as unsecured debt of a maturity of
less than ten (10) years and shall be computed with such
debt for the purpose of determining the percentage ratio to
the sum of (a) and (b) above of unsecured debt of a maturity
of less than ten (10) years, and when provision shall have
been made, whether through a sinking fund or otherwise, for
the retirement, prior to their maturity, of unsecured notes,
debentures, or other securities representing unsecured debt
of a maturity in excess of ten (10) years, the amount of any
such security so required to be retired in less than ten
(10) years shall be regarded as unsecured debt of a maturity
of less than ten (10) years (and not as unsecured debt of a
maturity in excess of ten (10) years) and shall be computed
with such debt for the purpose of determining the percentage
ratio to the sum of (a) and (b) above of unsecured debt of a
maturity of less than ten (10) years, provided, however,
that the payment due upon the maturity of unsecured debt
having an original single maturity in excess of ten (10)
years or the payment due upon the latest maturity of any
serial debt which had original maturities in excess of ten
(10) years shall not, for purposes of this provision, be
regarded as unsecured debt of a maturity of less than ten
(10) years until such payment or payments shall be required
to be made within three (3) years; furthermore, when
unsecured notes, debentures or other securities representing
unsecured debt of a maturity of less than ten (10) years
shall exceed 10% of the sum of (a) and (b) above, no
additional unsecured notes, debentures or other securities
representing unsecured debt shall be issued or assumed
(except for the purpose set forth in (i) or (ii) above)
until such ratio is reduced to 10% of the sum of (a) and (b)
above; or
(3) issue, sell or otherwise dispose of any shares of
the Preferred Stock in addition to the 104,476 shares of the
Preferred Stock originally authorized, or of any other class
of stock ranking on a parity with the Preferred Stock as to
dividends or in liquidation, dissolution, winding up or
distribution, unless the gross income of the Corporation and
Mississippi Power & Light Company, a Florida corporation,
for a period of twelve (12) consecutive calendar months
within the fifteen (15) calendar months immediately
preceding the issuance, sale or disposition of such stock,
determined in accordance with generally accepted accounting
practices (but in any event after deducting all taxes and
the greater of (a) the amount for said period charged by the
Corporation and Mississippi Power & Light Company, a Florida
corporation, on their books to depreciation expense or (b)
the largest amount required to be provided therefor by any
mortgage indenture of the Corporation) to be available for
the payment of interest, shall have been at least one and
one-half times the sum of (i) the annual interest charges on
all interest bearing indebtedness of the Corporation and
(ii) the annual dividend requirements on all outstanding
shares of the Preferred Stock and of all other classes of
stock ranking prior to, or on a parity with, the Preferred
Stock as to dividends or distributions, including the shares
proposed to be issued; provided, that there shall be
excluded from the foregoing computation interest charges on
all indebtedness and dividends on all shares of stock which
are to be retired in connection with the issue of such
additional shares of the Preferred Stock or other class of
stocks ranking prior to, or on a parity with, the Preferred
Stock as to dividends or distributions; and provided,
further, that in any case where such additional shares of
the Preferred Stock, or other class of stock ranking on a
parity with the Preferred Stock as to dividends or
distributions, are to be issued in connection with the
acquisition of additional property, the gross income of the
property to be so acquired, computed on the same basis as
the gross income of the Corporation, may be included on a
pro forma basis in making the foregoing computation; or
(4) issue, sell, or otherwise dispose of any shares of
the Preferred Stock, in addition to the 104,476 shares of
the Preferred Stock originally authorized, or of any other
class of stock ranking on a parity with the Preferred Stock
as to dividends or distributions, unless the aggregate of
the capital of the Corporation applicable to the Common
Stock and the surplus of the Corporation shall be not less
than the aggregate amount payable on the involuntary
liquidation, dissolution, or winding up of the Corporation,
in respect of all shares of the Preferred Stock and all
shares of stock, if any, ranking prior thereto, or on a
parity therewith, as to dividends or distributions, which
will be outstanding after the issue of the shares proposed
to be issued; provided, that if, for the purposes of meeting
the requirements of this subparagraph (4), it becomes
necessary to take into consideration any earned surplus of
the Corporation, the Corporation shall not thereafter pay
any dividends on shares of the Common Stock which would
result in reducing the Corporation's Common Stock equity (as
in paragraph (H) hereinafter defined) to an amount less than
the aggregate amount payable, on involuntary liquidation,
dissolution or winding up the Corporation, on all shares of
the Preferred Stock and of any stock ranking prior to, or on
a parity with, the Preferred Stock, as to dividends or other
distributions, at the time outstanding.
(E) Each holder of Common Stock of the Corporation shall be
entitled to one vote, in person or by proxy, for each share of
such stock standing in his name on the books of the Corporation.
Except as hereinbefore expressly provided in this Section Fourth,
the holders of the Preferred Stock shall have no power to vote
and shall be entitled to no notice of any meeting of the
stockholders of the Corporation. As to matters upon which holders
of the Preferred Stock are entitled to vote as hereinbefore
expressly provided, each holder of such Preferred Stock shall be
entitled to one vote, in person or by proxy, for each share of
such Preferred Stock standing in his name on the books of the
Corporation.
(F) In the event of any voluntary liquidation, dissolution or
winding up of the Corporation, the Preferred Stock, pari passu
with all shares of preferred stock of any class or series then
outstanding, shall have a preference over the Common Stock until
an amount equal to the then current redemption price shall have
been paid. In the event of any involuntary liquidation,
dissolution or winding up of the Corporation, which shall include
any such liquidation, dissolution or winding up which may arise
out of or result from the condemnation or purchase of all or a
major portion of the properties of the Corporation, by (i) the
United States Government or any authority, agency or
instrumentality thereof, (ii) a state of the United States or any
political subdivision, authority, agency, or instrumentality
thereof, or (iii) a district, cooperative or other association or
entity not organized for profit, the Preferred Stock, pari passu
with all shares of preferred stock of any class or series then
outstanding, shall also have a preference over the Common Stock
until the full par value thereof and an amount equal to all
accumulated and unpaid dividends thereon shall have been paid by
dividends or distribution.
(G) Upon the affirmative vote of a majority of the shares of
the issued and outstanding Common Stock at any annual meeting, or
any special meeting called for that purpose, the Corporation may
at any time redeem all of any series of said Preferred Stock or
may from time to time redeem any part thereof, by paying in cash
the redemption price then applicable thereto as stated and
expressed with respect to such series in the resolution providing
for the issue of such shares adopted by the Board of Directors of
the Corporation, or in these Restated Articles of Incorporation
or any amendment thereof, plus, in each case, an amount
equivalent to the accumulated and unpaid dividends, if any, to
the date of redemption. Notice of the intention of the
Corporation to redeem all or any part of the Preferred Stock
shall be mailed not less than thirty (30) days nor more than
sixty (60) days before the date of redemption to each holder of
record of Preferred Stock to be redeemed, at his post office
address as shown by the Corporation's records, and not less than
thirty (30) days' nor more than sixty (60) days' notice of such
redemption may be published in such manner as may be prescribed
by resolution of the Board of Directors of the Corporation; and,
in the event of such publication, no defect in the mailing of
such notice shall affect the validity of the proceedings for the
redemption of any shares of Preferred Stock so to be redeemed.
Contemporaneously with the mailing or the publication of such
notice as aforesaid or at any time thereafter prior to the date
of redemption, the Corporation may deposit the aggregate
redemption price (or the portion thereof not already paid in the
redemption of such Preferred Stock so to be redeemed) with any
bank or trust company in the City of New York, New York, or in
the City of Jackson, Mississippi, named in such notice, payable
to the order of the record holders of the Preferred Stock so to
be redeemed, as the case may be, on the endorsement and surrender
of their certificates, and thereupon said holders shall cease to
be stockholders with respect to such shares; and from and after
the making of such deposit such holders shall have no interest in
or claim against the Corporation with respect to said shares, but
shall be entitled only to receive such moneys from said bank or
trust company, with interest, if any, allowed by such bank or
trust company on such moneys deposited as in this paragraph
provided, on endorsement and surrender of their certificates, as
aforesaid. Any moneys so deposited, plus interest thereon, if
any, remaining unclaimed at the end of six years from the date
fixed for redemption, if thereafter requested by resolution of
the Board of Directors, shall be repaid to the Corporation, and
in the event of such repayment to the Corporation, such holders
of record of the shares so redeemed as shall not have made claim
against such moneys prior to such repayment to the Corporation,
shall be deemed to be unsecured creditors of the Corporation for
an amount, without interest, equivalent to the amount deposited,
plus interest thereon, if any, allowed by such bank or trust
company, as above stated, for the redemption of such shares and
so paid to the Corporation. Shares of the Preferred Stock which
have been redeemed shall not be reissued. If less than all of
the shares of the Preferred Stock are to be redeemed, the shares
thereof to be redeemed shall be selected by lot, in such manner
as the Board of Directors of the Corporation shall determine, by
an independent bank or trust company selected for that purpose by
the Board of Directors of the Corporation. Nothing herein
contained shall limit any legal right of the Corporation to
purchase or otherwise acquire any shares of the Preferred Stock;
provided, however, that, so long as any shares of the Preferred
Stock are outstanding, the Corporation shall not redeem, purchase
or otherwise acquire less than all of the shares of the Preferred
Stock, if, at the time of such redemption, purchase or other
acquisition, dividends payable on the Preferred Stock shall be in
default in whole or in part, unless, prior to or concurrently
with such redemption, purchase or other acquisition, all such
defaults shall be cured or unless such redemption, purchase or
other acquisition shall have been ordered, approved or permitted
under the Public Utility Holding Company Act of 1935; and
provided further that, so long as any shares of the Preferred
Stock are outstanding, the Corporation shall not make any payment
or set aside any funds for payment into any sinking fund for the
purchase or redemption of any shares of the Preferred Stock, if,
at the time of such payment, or the setting apart of funds for
such payment, dividends payable on the Preferred Stock shall be
in default in whole or in part, unless, prior to or concurrently
with such payment or the setting apart of funds for such payment,
all such defaults shall be cured or unless such payment, or the
setting apart of funds for such payment, shall have been ordered,
approved or permitted under the Public Utility Holding Company
Act of 1935. Any shares of the Preferred Stock so redeemed,
purchased or acquired shall retired and cancelled.
(H) For the purposes of this paragraph (H) and subparagraph
(4) of paragraph (D) the term "Common Stock Equity" shall mean
the aggregate of the par value of, or stated capital represented
by, the outstanding shares (other than shares owned by the
Corporation) of stock ranking junior to the Preferred Stock as to
dividends and assets, of the premium on such junior stock and of
the surplus (including earned surplus, capital surplus and
surplus invested in plant) of the Corporation less (1) any
amounts recorded on the books of the Corporation for utility
plant and other plant in excess of the original cost thereof, (2)
unamortized debt discount and expense, capital stock discount and
expense and any other intangible items set forth on the asset
side of the balance sheet as a result of accounting convention,
(3) the excess, if any, of the aggregate amount payable on
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation upon all outstanding preferred stock of the
Corporation over the aggregate par or stated value thereof and
any premiums thereon and (4) the excess, if any, for the period
beginning with January 1, 1954, to the end of the month within
ninety (90) days preceding the date as of which Common Stock
Equity is determined, of the cumulative amount computed under re
quirements contained in the Corporation's mortgage indentures
relating to minimum depreciation provisions (this cumulative
amount being the aggregate of the largest amounts separately
computed for entire periods of differing coexisting mortgage
indenture requirements), over the amount charged by the
Corporation and Mississippi Power & Light Company, a Florida
corporation, on their books for depreciation during such period,
including the final fraction of a year; provided, however, that
no deductions shall be required to be made in respect of items
referred to in subdivisions (1) and (2) of this paragraph (H) in
cases in which such items are being amortized or are provided
for, or are being provided for, by reserves. For the purpose of
this paragraph (H): (i) the term "total capitalization" shall
mean the sum of the Common Stock Equity plus item three (3) in
this paragraph (H) and the stated capital applicable to, and any
premium on, outstanding stock of the Corporation not included in
Common Stock Equity, and the principal amount of all outstanding
debt of the Corporation maturing more than twelve months after
the date of issue thereof; and (ii) the term "dividends on Common
Stock" shall embrace dividends on Common Stock (other than
dividends payable only in shares of Common Stock), distributions
on, and purchases or other acquisitions for value of, any Common
Stock of the Corporation or other stock if any, subordinate to
its Preferred Stock. So long as any shares of the Preferred
Stock are outstanding, the Corporation shall not declare or pay
any dividends on the Common Stock, except as follows:
(a) If and so long as the Common Stock Equity at the
end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 20% of total
capitalization, the Corporation shall not declare such
dividends in an amount which, together with all other
dividends on Common Stock paid within the year ending with
and including the date on which such dividend is payable,
exceeds 50% of the net income of the Corporation available
for dividends on the Common Stock for the twelve full
calendar months immediately preceding the month in which
such dividends are declared, except in an amount not
exceeding the aggregate of dividends on Common Stock which
under the restrictions set forth above in this subparagraph
(a) could have been, and have not been, declared; and
(b) If and so long as the Common Stock Equity at the
end of the calendar month immediately preceding the date on
which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not
less than 20% of total capitalization, the Corporation shall
not declare dividends on the Common Stock in an amount
which, together with all other dividends on Common Stock
paid within the year ending with and including the date on
which such dividend is payable, exceeds 75% of the net
income of the Corporation and Mississippi Power & Light
Company, a Florida corporation, available for dividends on
the Common Stock for the twelve full calendar months
immediately preceding the month in which such dividends are
declared, except in an amount not exceeding the aggregate of
dividends on Common Stock which under the restrictions set
forth above in subparagraph (a) and in this subparagraph (b)
could have been and have not been declared; and
(c) If any time when the Common Stock Equity is 25% or
more of total capitalization, the Corporation may not
declare dividends on shares of the Common Stock which would
reduce the Common Stock Equity below 25% of total
capitalization, except to the extent provided in
subparagraphs (a) and (b) above.
At anytime when the aggregate of all amounts credited
subsequent to January 1, 1954, to the depreciation reserve
account of the Corporation and Mississippi Power & Light Company,
a Florida corporation, through charges to operating revenue
deductions or otherwise on the books of the Corporation and
Mississippi Power & Light Company, a Florida corporation, shall
be less than the amount computed as provided in clause (aa)
below, under requirements contained in the Corporation's mortgage
indentures, then for the purposes of subparagraphs (a) and (b)
above, in determining the earnings available for common stock
dividends during any twelve-month period, the amount to be
provided for depreciation in that period shall be (aa) the
greater of the cumulative amount charged to depreciation expense
on the books of the Corporation and Mississippi Power & Light
Company, a Florida corporation, or the cumulative amount computer
under requirements contained in the Corporation's mortgage
indentures relating to minimum depreciation provisions (the
latter cumulative amount being the aggregate of the largest
amounts separately computed for entire periods of differing co-
existing mortgage indenture requirements) for the period from
January 1, 1954, to and including said twelve-month period, less
(bb) the greater of the cumulative amount charged to depreciation
expense on the books of the Corporation and Mississippi Power &
Light Company, a Florida corporation, or the cumulative amount
computed under requirements contained in the Corporation's
mortgage indentures relating to minimum depreciation provisions
(the latter cumulative amount being the aggregate of the largest
amounts separately computed for entire periods of differing
coexisting mortgage indenture requirements) from January 1, 1954,
up to but excluding said twelve-month period; provided that in
the event any company other than Mississippi Power & Light
Company, a Florida corporation, is merged into the Corporation
the "cumulative amount computed under requirements contained in
the Corporation's mortgage indentures relating to minimum
depreciation provisions" referred to above shall be computed
without regard, for the period prior to the merger, of property
acquired in the merger, and the "cumulative amount charged to
depreciation expense on the books of the Corporation" shall be
exclusive of amounts provided for such property prior to the
merger.
(I) The Board of Directors are hereby expressly authorized
by resolution or resolutions to state and express the series and
distinctive serial designation of any authorized and unissued
shares of Preferred Stock proposed to be issued, the number of
shares to constitute each such series, the annual rate or rates
of dividends payable on shares of each series together with the
dates on which such dividends shall be paid in each year, the
date from which such dividends shall commence to accumulate, the
amount or amounts payable upon redemption and the sinking fund
provisions, if any, for the redemption or purchase of shares.
(J) Dividends may be paid upon the Common Stock only when (i)
dividends have been paid or declared and funds set apart for the
payment of dividends as aforesaid on the Preferred Stock from the
date(s) after which dividends thereon became cumulative, to the
beginning of the period then current, with respect to which such
dividends on the Preferred Stock are usually declared, and (ii)
all payments have been made or funds have been set aside for
payments then or theretofore due under sinking fund provisions,
if any, for the redemption or purchase of shares of any series of
the Preferred Stock, but whenever (x) there shall have been paid
or declared and funds shall have been set apart for the payment
of all such dividends upon the Preferred Stock as aforesaid, and
(y) all payments shall have been made or funds shall have been
set aside for payments then or theretofore due under sinking fund
provisions, if any, for the redemption or purchase of shares of
any series of the Preferred Stock, then, subject to the
limitations above set forth, dividends upon the Common Stock may
be declared payable then or thereafter, out of any net earnings
or surplus of assets over liabilities, including capital, then
remaining. After the payment of the limited dividends and/or
shares in distribution of assets to which the Preferred Stock is
expressly entitled in preference to the Common Stock, in
accordance with the provisions hereinabove set forth, the Common
Stock alone (subject to the rights of any class of stock
hereafter authorized) shall receive all further dividends and
shares in distribution.
(K) Subject to the limitations hereinabove set forth the
Corporation from time to time may resell any of its own stock,
purchased or otherwise acquired by it as hereinafter provided
for, at such price as may be fixed by its Board of Directors or
Executive Committee.
(L) Subject to the limitations hereinabove set forth the
Corporation in order to acquire funds with which to redeem any
outstanding Preferred Stock of any class, may issue and sell
stock of any class then authorized but unissued, bonds, notes,
evidences of indebtedness, or other securities.
(M) Subject to the limitations hereinabove set forth the
Board of Directors of the Corporation may at any time authorize
the conversion or exchange of the whole or any particular share
of the outstanding preferred stock of any class with the consent
of the holder thereof, into or for stock of any other class at
the time of such consent authorized but unissued and may fix the
terms and conditions upon which such conversion or exchange may
be made; provided that without the consent of the holders of
record of two-thirds of the shares of Common Stock outstanding
given at a meeting of the holders of the Common Stock called and
held as provided by the By-Laws or given in writing without a
meeting, the Board of Directors shall not authorize the
conversion or exchange of any preferred stock of any class into
or for Common Stock or authorize the conversion or exchange of
any preferred stock; of any class into or for preferred stock of
any other class, if by such conversion or exchange the amount
which the holders of the shares of stock so converted or
exchanged would be entitled to receive either as dividends or
shares in distribution of assets in preference to the Common
Stock would be increased.
(N) A consolidation, merger or amalgamation of the
Corporation with or into any other corporation or corporations
shall not be deemed a distribution of assets of the Corporation
within the meaning of any provisions of these Restated Articles
of Incorporation.
(O) The consideration received by the Corporation from the
sale of any additional stock without nominal or par value shall
be entered in the Corporation's capital stock account.
(P) Subject to the limitations hereinabove set forth upon
the vote of a majority of all the Directors of the Corporation
and of a majority of the total number of shares of stock then
issued and outstanding and entitled to vote, irrespective of
class (or if the vote of a larger number or different proportion
of shares is required by the laws of the State of Mississippi not
withstanding the above agreement of the stockholders of the
Corporation to the contrary, then upon the vote of the larger
number or different proportion of shares so required), the
Corporation may from time to time create or authorize one or more
other classes of stock with such preferences, designations,
rights, privileges, powers, restrictions, limitations and qualifi
cations as may be determined by said vote, which may be the same
as or different from the preferences, designations, rights,
privileges, powers, restrictions, limitations and qualifications
of the classes of stock of the Corporation then authorized. Any
such vote authorizing the creation of a new class of stock may
provide that all moneys payable by the Corporation with respect
to any class of stock thereby authorized shall be paid in the
money of any foreign country named therein or designated by the
Board of Directors, pursuant to authority therein granted, at a
fixed rate of exchange with the money of the United States of
America therein stated or provided for and all such payments
shall be made accordingly. Any such vote may authorize any shares
of any class then authorized but unissued to be issued as shares
of such new class or classes
(Q) Subject to the limitations hereinabove set forth, either
the Preferred Stock or the Common Stock or both of said classes
of stock, may be increased at any time upon vote of the holders
of a majority of the total number of shares of the Corporation
then issued and outstanding and entitled to vote thereon,
irrespective of class.
(R) If any provisions in this Section Fourth shall be in
conflict or inconsistent with any other provisions of these
Restated Articles of Incorporation of the Corporation the
provisions of this Section Fourth shall prevail and govern.
FIFTH: The Corporation will not commence business until at
least $1,000 has been received by it as consideration for the
issuance of shares.
SIXTH: Existing provisions limiting or denying to
shareholders the preemptive right to acquire additional or
treasury shares of the Corporation are:
No holder of any stock of the Corporation shall be entitled
as of right to purchase or subscribe for any part of any unissued
stock of the Corporation, or any additional stock of any class to
be issued by reason of any increase of the authorized capital
stock of the Corporation or of bonds, certificates of
indebtedness, debentures, or other securities convertible into
stock of the Corporation, but any such unissued stock or any such
additional authorized issue of new stock, or of securities
convertible into stock, may be issued and disposed of by the
Board of Directors without offering to the stockholders then of
record, or to any class of stockholders, any thereof on any
terms.
SEVENTH: Existing provisions of the Restated Articles of
Incorporation for the regulation of the internal affairs of the
Corporation are:
(a) General authority is hereby conferred upon the
Board of Directors to fix the consideration for which shares
of stock of the Corporation without nominal or par value may
be issued and disposed of, and the shares of stock of the
Corporation without nominal or par value, whether authorized
by these Restated Articles of Incorporation or by subsequent
increase of the authorized number of shares of stock or by
amendment of these Restated Articles of Incorporation by
consolidation or merger or otherwise, and/or any securities
convertible into stock of the Corporation without nominal or
par value may be issued and disposed of for such
consideration and on such terms and in such manner as may be
fixed from time to time by the Board of Directors.
(b) The issue of the whole, or any part determined by
the Board of Directors, of the shares of stock of the
Corporation as partly paid, and subject to calls thereon
until the whole thereof shall have been paid, is hereby
authorized.
(c) The Board of Directors shall have power to
authorize the payment of compensation to the directors for
services to the Corporation, including fees for attendance
at meetings of the Board of Directors or the Executive
Committee and all other committees and to determine the
amount of such compensation and fees.
(d) The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by
it, alleged to have been lost or destroyed and the Board of
Directors may, in their discretion, require the owner of the
lost or destroyed certificate, or his legal representative,
to give bond in such sum as they may direct as indemnity
against any claim that may be made against the Corporation,
its officers, employees or agents by reason thereof; a new
certificate may be issued without requiring any bond when,
in the judgment of the directors, it is proper so to do.
If the Corporation shall neglect or refuse to issue
such a new certificate and it shall appear that the owner
thereof has applied to the Corporation for a new certificate
in place thereof and has made due proof of the loss or
destruction thereof and has given such notice of his
application for such new certificate on such newspaper of
general circulation, published in the State of Mississippi
as reasonably should be approved by the Board of Directors,
and in such other newspaper as may be required by the Board
of Directors, and has tendered to the Corporation adequate
security to indemnify the Corporation, its officers
employees, or agents, and any person other than such
applicant who shall thereafter appear to be the lawful owner
of such alleged lost or destroyed certificate against
damage, loss or expense because of the issuance of such new
certificate, and the effect thereof as herein provided,
then, unless there is adequate cause why such new
certificate shall not be issued, the Corporation, upon the
receipt of said indemnity, shall issue a new certificate of
stock in place of such lost or destroyed certificate. In the
event that the Corporation shall nevertheless refuse to
issue a new certificate as aforesaid, the applicant may then
petition any court of competent jurisdiction for relief
against the failure of the Corporation to perform its
obligations hereunder. In the event that the Corporation
shall issue such new certificate, any person who shall
thereafter claim any rights under the certificate in place
of which such new certificate is issued, whether such new
certificate is issued pursuant to the judgment or decree of
such court or voluntarily by the Corporation after the
publication of notice and the receipt of proof and indemnity
as aforesaid, shall have recourse to such indemnity and the
Corporation shall be discharged from all liability to such
person by reason of such certificate and the shares
represented thereby.
(e) No stockholder shall have any right to inspect any
account, book or document of the Corporation, except as
conferred by statute or authorized by the directors.
(f) A director of the Corporation shall not be
disqualified by his office from dealing or contracting with
the Corporation either as a vendor, purchaser or otherwise,
nor shall any transaction or contract of the Corporation be
void or voidable by reason of the fact that any director or
any firm of which any director is a member or any
corporation of which any director is a shareholder, officer
or director, is in any way interested in such transaction or
contract, provided that such transaction or contract is or
shall be authorized, ratified or approved either (1) by a
vote of a majority of a quorum of the Board of Directors or
the Executive Committee, without counting in such majority
or quorum any directors so interested or members of a firm
so interested or a shareholder, officer or director of a
corporation so interested, or (2) by the written consent, or
by vote at a stockholders' meeting of the holders of record
of a majority in number of all the outstanding shares of
stock of the Corporation entitled to vote; nor shall any
director be liable to account to the Corporation for any
profits realized by or from or through any such transaction
or contract of the Corporation, authorized, ratified or
approved as aforesaid by reason of the fact that he or any
firm of which he is a member or any corporation of which he
is a shareholder, officer or director was interested in such
transaction or contract. Nothing herein contained shall
create any liability in the events above described or
prevent the authorization, ratification or approval of such
contract in any other manner provided by law.
(g) Any director may be removed, whether cause shall be
assigned for his removal or not, and his place filled at any
meeting of the stockholders by the vote of a majority of the
outstanding stock of the Corporation entitled to vote.
Vacancies in the Board of Directors, except vacancies
arising from the removal of directors, shall be filed by the
directors remaining in office.
(h) Any property of the Corporation not essential to
the conduct of its corporate business and purposes may be
sold, leased, exchanged or otherwise disposed of by
authority of its Board of Directors and the Corporation may
sell, lease or exchange all of its property and franchises
or any of its property, franchises, corporate rights or
privileges essential to the conduct of its corporate
business and purposes upon the consent of and for such
considerations and upon such terms as may be authorized by a
majority of the Board of Directors and the holders of a
majority of the outstanding shares of stock entitled to
vote, expressed in writing or by vote at a meeting called
for that purpose in the manner provided by the By-Laws of
the Corporation for special meetings of stockholders; and at
no time shall any of the plants, properties, easements,
franchises (other than corporate franchises) or securities
then owned by the Corporation be deemed to be property,
franchises, corporate rights or privileges essential to the
conduct of the corporate business and purposes of the
Corporation.
Upon the vote or consent of the stockholders required
to dissolve the Corporation, the Corporation shall have
power, as the attorney and agent of the holders of all of
its outstanding stock, to sell, assign and transfer all such
stock to a new corporation organized under the laws of the
United States, the State of Mississippi or any other state,
and to receive as the consideration therefor shares of stock
of such new corporation of the several classes into which
the stock of the Corporation is then divided, equal in
number to the number of shares of stock of the Corporation
of said several classes then outstanding, such shares of
said new corporation to have the same preferences, voting
powers, restrictions and qualifications thereof as may then
attach to the classes of stock of the Corporation then
outstanding so far as the same shall be consistent with such
laws of the United States or of the State of Mississippi or
of such other state, except that the whole or any part of
such stock or any class thereof may be stock with or without
nominal or par value. In order to make effective such a
sale, assignment and transfer, the Corporation shall have
the right to transfer all its outstanding stock on its books
and to issue and deliver new certificates therefor in such
names and amounts as such new corporation may direct without
receiving for cancellation the certificates for such stock
previously issued and then outstanding. Upon completion of
such sale, assignment and transfer, the holders of the stock
of the Corporation shall have no rights or interests in or
against the Corporation except the right, upon surrender of
certificates for stock of the Corporation properly endorsed,
if required, to receive from the Corporation certificates
for shares of stock of such new corporation of the class
corresponding to the class of the shares surrendered, equal
in number to the number of shares of the stock of the
Corporation so surrendered.
(i) Upon the written assent or pursuant to the
affirmative vote in person or by proxy of the holders of a
majority in number of the shares then outstanding and
entitled to vote, irrespective of class, (1) any or every
statute of the State of Mississippi hereafter enacted,
whereby the rights, powers or privileges of the Corporation
are or may be increased, diminished or in any way affected
or whereby the rights, powers or privileges of the
stockholders of corporations organized under the law under
which the Corporation is organized, are increased,
diminished or in any way affected or whereby effect is given
to the action taken by any part, less than all, of the
stockholders of any such corporation, shall, notwithstanding
any provisions which may at the time be contained in these
Restated Articles of Incorporation or any law, apply to the
Corporation, and shall be binding not only upon the
Corporation, but upon every stockholder thereof, to the same
extent as if such statute had been in force at the date of
the making and filing of these Restated Articles of
Incorporation and/or (2) amendments of these Restated
Articles of Incorporation authorized at the time of the
making of such amendments by the laws of the State of
Mississippi may be made.
EIGHTH: The Restated Articles of Incorporation correctly set
forth without change the corresponding provisions of the Articles
of Incorporation as heretofore amended and restated, and
supersede the original Articles of Incorporation, and all
amendments thereto, and prior Restated Articles of Incorporation
and all amendments thereto.
DATED: December 21, 1983.
MISSISSIPPI POWER & LIGHT COMPANY
By: D. C. LUTKEN
Its President
[CORPORATE SEAL]
By: F. S. YORK, JR.
Its Secretary
STATE OF MISSISSIPPI
COUNTY OF HINDS
I, Bethel Ferguson, a Notary Public, do hereby certify that
on this 21st day of December, 1983, personally appeared before me
D. C. Lutken. who, being by me first duly sworn, declared that he
is the President of Mississippi Power & Light Company, that he
signed the foregoing document as President of the Corporation,
and that the statements therein contained are true.
BETHEL FERGUSON
Notary Public
My commission expires July 23, 1987.
[NOTARY'S SEAL]
<PAGE>
RESTATED ARTICLES OF INCORPORATION
of
MISSISSIPPI POWER & LIGHT COMPANY
Filing and Recording Data
Restated Articles of Incorporation filed with Secretary of State-
- -December 21, 1983
Certificate of Restated Articles of Incorporation issued by
Secretary of State--December 21, 1983
Certificate of Restated Articles of Incorporation and Restated
Articles of Incorporation filed for record in the office of the
Chancery Clerk of the First Judicial District of Hinds County,
Mississippi, Book 189, Page 624--December 22, 1983.
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Statement of Resolution Establishing Series of Shares
October 25, 1984
Pursuant to the provisions of Section 79-3-29 of the
Mississippi Business Corporation Law, the undersigned Corporation
submits the following statement for the purpose of establishing
and designating a series of shares and fixing and determining the
relative rights and preferences thereof:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The attached resolution establishing and designating a
series of shares and fixing and determining the relative
rights and preferences thereof was duly adopted by the
Board of Directors of the Corporation on October 24,
1984.
Dated this the 25th day of October, 1984.
MISSISSIPPI POWER & LIGHT COMPANY
By/s/ William Cavanaugh, III
William Cavanaugh, III
President
By /s/ Frank S. York, Jr.
Frank S. York, Jr.
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this October 25, 1984, personally appeared before me William
Cavanaugh, III, who, being by me first duly sworn, declared that
he is President of Mississippi Power & Light Company, that he
executed the foregoing document as President of the Corporation,
and that the statements therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
March 30, 1986
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this October 25, 1984, personally appeared before me Frank S.
York, Jr., who, being by me first duly sworn, declared that he is
Senior Vice President, Chief Financial Officer and Secretary of
Mississippi Power & Light Company, that he executed the foregoing
document as Senior Vice President, Chief Financial Officer and
Secretary of the Corporation, and that the statements therein
contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
March 30, 1986
<PAGE>
RESOLVED That there is hereby established a series of the
Preferred Stock of Mississippi Power & Light Company as follows:
A series of 150,000 shares of the Preferred Stock shall:
(a) be designated "16.16% Preferred Stock, Cumulative, $100
Par Value;"
(b) have a dividend rate of $16.16 per share per annum
payable quarterly on February 1, May 1, August 1, and November 1
of each year, the first dividend date to be February 1, 1986, and
such dividends to be cumulative from the date of issuance;
(c) be subject to redemption at the price of $116.16 per
share if redeemed on or before November 1, 1989, of $112.12 per
share if redeemed after November 1, 1989, and on or before
November 1, 1994, of $108.08 per share if redeemed after November
1, 1994, and on or before November 1, 1999, and of $104.04 per
share if redeemed after November 1, 1999, in each case plus an
amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption; provided,
however, that no share of the 16.16% Preferred Stock, Cumulative,
$100 Par Value, shall be redeemed prior to November 1, 1989, if
such redemption is for the purpose or in anticipation of
refunding such share through the use, directly or indirectly, of
funds borrowed by the Corporation, or through the use, directly
or indirectly, of funds derived through the issuance by the
Corporation of stock ranking prior to or on a parity with the
16.16% Preferred Stock, Cumulative, $100 Par Value, as to
dividends or assets, if such borrowed funds have an effective
interest cost to the Corporation (computed in accordance with
generally accepted financial practice) or such stock has an
effective dividend cost to the Corporation (so computed) of less
than 16.2772% per annum; and
(d) be subject to redemption as and for a sinking fund as
follows: on November 1, 1989 and on each November 1 thereafter
(each such date being hereinafter referred to as a "16.16%
Sinking Fund Redemption Date"), for so long as any shares of the
16.16% Preferred Stock, Cumulative, $100 Par Value, shall remain
outstanding, the Corporation shall redeem, out of funds legally
available therefor, 7,500 shares of the 16.16% Preferred Stock,
Cumulative, $100 Par Value, (or the number of shares than
outstanding if less than 7,500) at the sinking fund redemption
price of $100 per share plus, as to each share so redeemed, an
amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date of redemption (the obligation of the
Corporation so to redeem the shares of the 16.16% Preferred
Stock, Cumulative, $100 Par Value, being hereinafter referred to
as the "16.16% Sinking Fund Obligation"); the 16.16% Sinking Fund
Obligation shall be cumulative; if on any 16.16% Sinking Fund
Redemption Date, the Corporation shall not have funds legally
available therefor sufficient to redeem the full number of shares
required to be redeemed on that date, the 16.16% Sinking Fund
Obligation with respect to the shares not redeemed shall carry
forward to each successive 16.16% Sinking Fund Redemption Date
until such shares shall have been redeemed; whenever on any
16.16% Sinking Fund Redemption Date, the funds of the Corporation
legally available for the satisfaction of the 16.16% Sinking Fund
Obligation and all other sinking fund and similar obligations
than existing with respect to any other class or series of its
stock ranking on a parity as to dividends or assets with the
16.16% Preferred Stock, Cumulative, $100 Par Value (such
obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligations"), are
insufficient to permit the Corporation to satisfy fully its Total
Sinking Fund Obligation on that date, the Corporation shall apply
to the satisfaction on its 16.16% Sinking Fund Obligation on that
date that proportion of such legally available funds which is
equal to the ratio of such 16.16% Sinking Fund Obligation to such
Total Sinking Fund Obligation; in addition to the 16.16% Sinking
Fund Obligation, the Corporation shall have the option, which
shall be noncumulative, to redeem, upon authorization of the
Board of Directors, on each 16.16% Sinking Fund Redemption Date,
at the aforesaid sinking fund redemption price, up to 7,500
additional shares of the 16.16% Preferred Stock, Cumulative $100
Par Value; the Corporation shall be entitled, at its election, to
credit against its 16.16% Sinking Fund Obligation on any 16.16%
Sinking Fund Redemption Date any shares of the Preferred Stock,
Cumulative, $100 Par Value (including shares of the 16.16%
Preferred Stock, Cumulative, $100 Par Value, optionally redeemed
at the aforesaid sinking fund price) theretofore redeemed (other
than shares of the 16.16% Preferred Stock, Cumulative, $100 Par
Value, redeemed pursuant to the 16.16% Sinking Fund Obligation)
purchased or otherwise acquired and not previously credited
against the 16.16% Sinking Fund Obligation.
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Statement of Resolution Establishing Series of Shares
July 24, 1986
Pursuant to the provisions of Section 79-3-29 of the
Mississippi Code of 1972, the undersigned Corporation submits the
following statement for the purpose of establishing and
designating a series of shares and fixing and determining the
relative rights and preferences thereof:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The attached resolution establishing and designating a
series of shares and fixing and determining the relative
rights and preferences thereof was duly adopted by the
Board of Directors of the Corporation on July 24, 1986.
Dated this the 24th day of July, 1986.
MISSISSIPPI POWER & LIGHT COMPANY
By/s/ William Cavanaugh, III
William Cavanaugh, III
President
By /s/ Frank S. York, Jr.
Frank S. York, Jr.
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joseph L. Blount, a Notary Public, do hereby certify that
on this July 24, 1986, personally appeared before me William
Cavanaugh, III, who, being by me first duly sworn, declared that
he is President of Mississippi Power & Light Company, a
Mississippi corporation, that he executed the foregoing document
as President of the Corporation, and that the statements therein
contained are true.
/s/ Joseph L. Blount
Joseph L. Blount, Notary Public
My Commission Expires:
January 20, 1990
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joseph L. Blount, a Notary Public, do hereby certify that
on this July 24, 1986, personally appeared before me Frank S.
York, Jr., who, being by me first duly sworn, declared that he is
Senior Vice President, Chief Financial Officer and Secretary of
Mississippi Power & Light Company, a Mississippi corporation,
that he executed the foregoing document as Senior Vice President,
Chief Financial Officer and Secretary of the Corporation, and
that the statements therein contained are true.
/s/ Joseph L. Blount
Joseph L. Blount, Notary Public
My Commission Expires:
January 20, 1990
<PAGE>
RESOLVED That there is hereby established a series of the
Preferred Stock of Mississippi Power & Light Company as follows:
A series of 350,000 shares of the Preferred Stock shall:
(a) be designated "9% Preferred Stock, Cumulative, $100 Par
Value;"
(b) have a dividend rate of $9.00 per share per annum
payable quarterly on February 1, May 1, August 1, and November 1
of each year, the first dividend date to be November 1, 1986, and
such dividends to be cumulative from the date of issuance;
(c) be subject to redemption at the price of $109.00 per
share if redeemed on or before July 1, 1991, of $106.75 per share
if redeemed after July 1, 1991, in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon, if
any, to the date fixed for redemption; provided, however, that no
share of the 9% Preferred Stock, Cumulative, $100 Par Value,
shall be redeemed prior to July 1, 1991, if such redemption is
for the purpose or in anticipation of refunding such share
through the use, directly or indirectly, of funds borrowed by the
Corporation, or through the use, directly or indirectly, of funds
derived through the issuance by the Corporation of stock ranking
prior to or on a parity with the 9% Preferred Stock, Cumulative,
$100 Par Value, as to dividends or assets, if such borrowed funds
have an effective interest cost to the Corporation (computed in
accordance with generally accepted financial practice) or such
stock has an effective dividend cost to the Corporation (so
computed) of less than 9.9901% per annum; and
(d) be subject to redemption as and for a sinking fund as
follows: on July 1, 1991, and on each July 1 thereafter (each
such date being hereinafter referred to as a "9% Sinking Fund
Redemption Date"), for so long as any shares of the 9% Preferred
Stock, Cumulative, $100 Par Value, shall remain outstanding, the
Corporation shall redeem, out of funds legally available
therefor, 70,000 shares of the 9% Preferred Stock, Cumulative,
$100 Par Value, (or the number of shares than outstanding if less
than 70,000) at the sinking fund redemption price of $100 per
share plus, as to each share so redeemed, an amount equivalent to
the accumulated and unpaid dividends thereon, if any, to the date
of redemption (the obligation of the Corporation so to redeem the
shares of the 9% Preferred Stock, Cumulative, $100 Par Value,
being hereinafter referred to as the "9% Sinking Fund
Obligation"); the 9% Sinking Fund Obligation shall be cumulative;
if on any 9.% Sinking Fund Redemption Date, the Corporation shall
not have funds legally available therefor sufficient to redeem
the full number of shares required to be redeemed on that date,
the 9% Sinking Fund Obligation with respect to the shares not
redeemed shall carry forward to each successive 9% Sinking Fund
Redemption Date until such shares shall have been redeemed;
whenever on any 9% Sinking Fund Redemption Date, the funds of the
Corporation legally available for the satisfaction of the 9%
Sinking Fund Obligation and all other sinking fund and similar
obligations than existing with respect to any other class or
series of its stock ranking on a parity as to dividends or assets
with the 9% Preferred Stock, Cumulative, $100 Par Value (such
obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligations"), are
insufficient to permit the Corporation to satisfy fully its Total
Sinking Fund Obligation on that date, the Corporation shall apply
to the satisfaction on its 9% Sinking Fund Obligation on that
date that proportion of such legally available funds which is
equal to the ratio of such 9% Sinking Fund Obligation to such
Total Sinking Fund Obligation; the Corporation shall be entitled,
at its election, to credit against its 9% Sinking Fund Obligation
on any 9% Sinking Fund Redemption Date any shares of the
Preferred Stock, Cumulative, $100 Par Value, theretofore
redeemed (other than shares of the 9% Preferred Stock,
Cumulative, $100 Par Value, redeemed pursuant to the 9% Sinking
Fund Obligation) purchased or otherwise acquired and not
previously credited against the 9% Sinking Fund Obligation.
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Statement of Cancellation of Shares
September 1, 1986
Pursuant to the provisions of Section 79-3-133 of the
Mississippi Code of 1972, the undersigned Corporation submits the
following statement of cancellation of redeemable shares by
redemption:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The number of redeemable shares cancelled through
redemption is 20,000 shares of 17% preferred stock,
cumulative, $100 par value.
3. The aggregate number of issued shares, itemized by class
and series, after giving effect to such cancellation is
as follows:
(a) 6,275,000 shares of common stock, without par
value;
(b) 59,920 shares of 4.36% preferred stock, cumulative,
$100 par value;
(c) 43,888 shares of 4.56% preferred stock, cumulative,
$100 par value;
(d) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(e) 75,000 shares of 9.16% preferred stock, cumulative,
$100 par value;
(f) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(g) 180,000 shares of 17% preferred stock, cumulative,
$100 par value;
(h) 100,000 shares of 14.75% preferred stock,
cumulative, $100 par value;
(i) 100,000 shares of 12% preferred stock, cumulative,
$100 par value;
(j) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(k) 350,000 shares of 9% preferred stock, cumulative,
$100 par value;
4. The amount, expressed in dollars, of the stated capital
of the Corporation, after giving effect to such
cancellation is $270,205,800.00.
5. The Restated Articles of Incorporation of the
Corporation provide that the cancelled shares shall not
be reissued, and the number of shares which the
Corporation has authority to issue, itemized by class,
after giving effect to such cancellation, is as follows:
(a) 15,000,000 shares of common stock, without par
value, 6,275,000 of such shares being issued and
outstanding at the date hereof; and
(b) 1,984,476 shares of preferred stock, 1,258,808
shares of which are issued and outstanding as
outlined above.
Dated this the 10th day of December, 1986.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ Frank S. York, Jr.
Frank S. York, Jr.
Senior Vice President,
Chief Financial Officer
and Secretary
By /s/ A. H. Mapp
A. H. Mapp
Assistant Secretary and
Assistant Treasurer
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this 10th day of December, 1986, personally appeared before me
Frank S. York, Jr., who, being by me first duly sworn, declared
that he is Senior Vice President, Chief Financial Officer and
Secretary of Mississippi Power & Light Company, a Mississippi
corporation, that he executed the foregoing document as Senior
Vice President, Chief Financial Officer and Secretary of the
Corporation, and that the statements therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this 10th day of December, 1986, personally appeared before me A.
H. Mapp, who, being by me first duly sworn, declared that he is
Assistant Secretary and Assistant Treasurer of Mississippi Power
& Light Company, a Mississippi corporation, that he executed the
foregoing document as Senior Vice President, Chief Financial
Officer and Secretary of the Corporation, and that the statements
therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Statement of Cancellation of Shares
November 1, 1986
Pursuant to the provisions of Section 79-3-133 of the
Mississippi Code of 1972, the undersigned Corporation submits the
following statement of cancellation of redeemable shares by
redemption:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The number of redeemable shares cancelled through
redemption is 180,000 shares of 17% preferred stock,
cumulative, $100 par value.
3. The aggregate number of issued shares, itemized by class
and series, after giving effect to such cancellation is
as follows:
(a) 6,275,000 shares of common stock, without par
value;
(b) 59,920 shares of 4.36% preferred stock, cumulative,
$100 par value;
(c) 43,888 shares of 4.56% preferred stock, cumulative,
$100 par value;
(d) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(e) 75,000 shares of 9.16% preferred stock, cumulative,
$100 par value;
(f) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(g) 100,000 shares of 14.75% preferred stock,
cumulative, $100 par value;
(h) 100,000 shares of 12% preferred stock, cumulative,
$100 par value;
(i) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(j) 350,000 shares of 9% preferred stock, cumulative,
$100 par value;
4. The amount, expressed in dollars, of the stated capital
of the Corporation, after giving effect to such
cancellation is $252,205,800.00.
5. The Restated Articles of Incorporation of the
Corporation provide that the cancelled shares shall not
be reissued, and the number of shares which the
Corporation has authority to issue, itemized by class,
after giving effect to such cancellation, is as follows:
(a) 15,000,000 shares of common stock, without par
value, 6,275,000 of such shares being issued and
outstanding at the date hereof; and
(b) 1,804,476 shares of preferred stock, 1,078,808
shares of which are issued and outstanding as
outlined above.
Dated this the 10th day of December, 1986.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ Frank S. York, Jr.
Frank S. York, Jr.
Senior Vice President,
Chief Financial Officer
and Secretary
By /s/ A. H. Mapp
A. H. Mapp
Assistant Secretary and
Assistant Treasurer
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this 10th day of December, 1986, personally appeared before me
Frank S. York, Jr., who, being by me first duly sworn, declared
that he is Senior Vice President, Chief Financial Officer and
Secretary of Mississippi Power & Light Company, a Mississippi
corporation, that he executed the foregoing document as Senior
Vice President, Chief Financial Officer and Secretary of the
Corporation, and that the statements therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this 10th day of December, 1986, personally appeared before me A.
H. Mapp, who, being by me first duly sworn, declared that he is
Assistant Secretary and Assistant Treasurer of Mississippi Power
& Light Company, a Mississippi corporation, that he executed the
foregoing document as Senior Vice President, Chief Financial
Officer and Secretary of the Corporation, and that the statements
therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Statement of Cancellation of Shares
November 1, 1986
Pursuant to the provisions of Section 79-3-133 of the
Mississippi Code of 1972, the undersigned Corporation submits the
following statement of cancellation of redeemable shares by
redemption:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The number of redeemable shares cancelled through
redemption is 100,000 shares of 14.75% preferred stock,
cumulative, $100 par value.
3. The aggregate number of issued shares, itemized by class
and series, after giving effect to such cancellation is
as follows:
(a) 6,275,000 shares of common stock, without par
value;
(b) 59,920 shares of 4.36% preferred stock, cumulative,
$100 par value;
(c) 43,888 shares of 4.56% preferred stock, cumulative,
$100 par value;
(d) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(e) 75,000 shares of 9.16% preferred stock, cumulative,
$100 par value;
(f) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(g) 100,000 shares of 12% preferred stock, cumulative,
$100 par value;
(h) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(i) 350,000 shares of 9% preferred stock, cumulative,
$100 par value;
4. The amount, expressed in dollars, of the stated capital
of the Corporation, after giving effect to such
cancellation is $242,205,800.00.
5. The Restated Articles of Incorporation of the
Corporation provide that the cancelled shares shall not
be reissued, and the number of shares which the
Corporation has authority to issue, itemized by class,
after giving effect to such cancellation, is as follows:
(a) 15,000,000 shares of common stock, without par
value, 6,275,000 of such shares being issued and
outstanding at the date hereof; and
(b) 1,704,476 shares of preferred stock, 978,808 shares
of which are issued and outstanding as outlined
above.
Dated this the 10th day of December, 1986.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ Frank S. York, Jr.
Frank S. York, Jr.
Senior Vice President,
Chief Financial Officer
and Secretary
By /s/ A. H. Mapp
A. H. Mapp
Assistant Secretary and
Assistant Treasurer
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this 10th day of December, 1986, personally appeared before me
Frank S. York, Jr., who, being by me first duly sworn, declared
that he is Senior Vice President, Chief Financial Officer and
Secretary of Mississippi Power & Light Company, a Mississippi
corporation, that he executed the foregoing document as Senior
Vice President, Chief Financial Officer and Secretary of the
Corporation, and that the statements therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this 10th day of December, 1986, personally appeared before me A.
H. Mapp, who, being by me first duly sworn, declared that he is
Assistant Secretary and Assistant Treasurer of Mississippi Power
& Light Company, a Mississippi corporation, that he executed the
foregoing document as Senior Vice President, Chief Financial
Officer and Secretary of the Corporation, and that the statements
therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Statement of Resolution Establishing Series of Shares
January 13, 1987
Pursuant to the provisions of Section 79-3-29 of the
Mississippi Code of 1972, the undersigned Corporation submits the
following statement for the purpose of establishing and
designating a series of shares and fixing and determining the
relative rights and preferences thereof:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The attached resolution establishing and designating a
series of shares and fixing and determining the relative
rights and preferences thereof was duly adopted by the
Board of Directors of the Corporation on January 13,
1987.
Dated this the 13th day of January, 1987.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ D. C. Lutken
D. C. Lutken
President, Chairman of
the Board and Chief
Executive Officer
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this January 13, 1987, personally appeared before me D. C.
Lutken, who, being by me first duly sworn, declared that he is
President, Chairman of the Board and Chief Executive Officer of
Mississippi Power & Light Company, a Mississippi corporation,
that he executed the foregoing document as President, Chairman of
the Board and Chief Executive Officer of the Corporation, and
that the statements therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
STATE OF MISSISSIPPI
COUNTY OF MINDS
I, Joy L. Spears, a Notary Public, do hereby certify that on
this January 13, 1987, personally appeared before me G. A. Goff,
who, being by me first duly sworn, declared that he is Senior
Vice President, Chief Financial Officer and Secretary of
Mississippi Power & Light Company, a Mississippi corporation,
that he executed the foregoing document as Senior Vice President,
Chief Financial Officer and Secretary of the Corporation, and
that the statements therein contained are true.
/s/ Joy L. Spears
Joy L. Spears, Notary Public
My Commission Expires:
________________________
<PAGE>
RESOLVED That there is hereby established a series of the
Preferred Stock of Mississippi Power & Light Company as follows:
A series of 350,000 shares of the Preferred Stock shall:
(a) be designated "9.76% Preferred Stock, Cumulative, $100
Par Value;"
(b) have a dividend rate of $9.76 per share per annum
payable quarterly on February 1, May 1, August 1, and November 1
of each year, the first dividend date to be May 1, 1987, and such
dividends to be cumulative from the date of issuance;
(c) be subject to redemption at the price of $109.76 per
share if redeemed on or before January 1, 1988, of $108.68 per
share if redeemed after January 1, 1988, and on or before January
1, 1989, of $107.60 per share if redeemed after January 1, 1989,,
and on or before January 1, 1990, of $106.51 per share if
redeemed after January 1, 1990, and on or before January 1, 1991,
of $105.43 per share if redeemed after January 1, 1991, and on or
before January 1, 1992, of $104.34 per share if redeemed after
January 1, 1992, and on or before January 1, 1993, of $103.26 per
share if redeemed after January 1, 1993, and on or before January
1, 1994, of $102.17 per share if redeemed after January 1, 1994,
and on or before January 1, 1995, of $101.09 per share if
redeemed after January 1, 1995, and on or before January 1, 1996,
and of $100.00 per share if redeemed after January 1, 1996, in
each case plus an amount equivalent to the accumulated and unpaid
dividends thereon, if any, to the date fixed for redemption;
provided, however, that no share of the 9.76% Preferred Stock,
Cumulative, $100 Par Value, shall be redeemed prior to January 1,
1992, if such redemption is for the purpose or in anticipation of
refunding such share through the use, directly or indirectly, of
funds borrowed by the Corporation, or through the use, directly
or indirectly, of funds derived through the issuance by the
Corporation of stock ranking prior to or on a parity with the
9.76% Preferred Stock, Cumulative, $100 Par Value, as to
dividends or assets, if such borrowed funds have an effective
interest cost to the Corporation (computed in accordance with
generally accepted financial practice) or such stock has an
effective dividend cost to the Corporation (so computed) of less
than 9.9165% per annum; and
(d) be subject to redemption as and for a sinking fund as
follows: on January 1, 1993, and on each January 1 thereafter
(each such date being hereinafter referred to as a "9.76% Sinking
Fund Redemption Date"), for so long as any shares of the 9.76%
Preferred Stock, Cumulative, $100 Par Value, shall remain
outstanding, the Corporation shall redeem, out of funds legally
available therefor, 70,000 shares of the 9.76% Preferred Stock,
Cumulative, $100 Par Value, (or the number of shares than
outstanding if less than 70,000) at the sinking fund redemption
price of $100 per share plus, as to each share so redeemed, an
amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date of redemption (the obligation of the
Corporation so to redeem the shares of the 9.76% Preferred Stock,
Cumulative, $100 Par Value, being hereinafter referred to as the
"9.76% Sinking Fund Obligation"); the 9.76% Sinking Fund
Obligation shall be cumulative; if on any 9.76% Sinking Fund
Redemption Date, the Corporation shall not have funds legally
available therefor sufficient to redeem the full number of shares
required to be redeemed on that date, the 9.76% Sinking Fund
Obligation with respect to the shares not redeemed shall carry
forward to each successive 9.76% Sinking Fund Redemption Date
until such shares shall have been redeemed; whenever on any 9.76%
Sinking Fund Redemption Date, the funds of the Corporation
legally available for the satisfaction of the 9.76% Sinking Fund
Obligation and all other sinking fund and similar obligations
than existing with respect to any other class or series of its
stock ranking on a parity as to dividends or assets with the
9.76% Preferred Stock, Cumulative, $100 Par Value (such
obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligations"), are
insufficient to permit the Corporation to satisfy fully its Total
Sinking Fund Obligation on that date, the Corporation shall apply
to the satisfaction on its 9.76% Sinking Fund Obligation on that
date that proportion of such legally available funds which is
equal to the ratio of such 9.76% Sinking Fund Obligation to such
Total Sinking Fund Obligation; the Corporation shall be entitled,
at its election, to credit against its 9.76% Sinking Fund
Obligation on any 9.76% Sinking Fund Redemption Date any shares
of the Preferred Stock, Cumulative, $100 Par Value, theretofore
redeemed (other than shares of the 9.76% Preferred Stock,
Cumulative, $100 Par Value, redeemed pursuant to the 9.76%
Sinking Fund Obligation) purchased or otherwise acquired and not
previously credited against the 9.76% Sinking Fund Obligation.
FURTHER RESOLVED That the officers of the Company are hereby
authorized and directed to execute, file, publish and record all
such statements and other documents, and to do and perform all
such other and further acts and things, as in the judgment of the
officer or officers taking such action may be necessary or
desirable for the purpose of causing the immediately preceding
resolution to become fully effective and of causing said
resolution to become and constitute an amendment of the Restated
Articles of Incorporation of the Company, all in the manner and
to the extent required by the Mississippi Business Corporation
Law.
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (Supp. 1987)
March 8, 1988
The undersigned corporation, pursuant to Section 79-4-6.31
of the Mississippi Code of 1972, as amended, submits the
following document and sets forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 5,000 shares of 12%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 6,275,000 of such shares being issued and
outstanding at the date hereof; and
(b)1,699,476 shares of preferred stock, 1,323,808
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 95,000 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 8th day of March, 1988.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
By /s/ J. R. Martin
J. R. Martin
Treasurer and Assistant
Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (Supp. 1988)
January 19, 1989
The undersigned corporation, pursuant to Section 79-4-6.31
of the Mississippi Code of 1972, as amended, submits the
following document and sets forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 1,500 shares of 12%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,699,476 shares of preferred stock, 1,323,808
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 93,500 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 19th day of January, 1989.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
REGISTERED AGENT/OFFICE STATEMENT OF CHANGE
(Mark appropriate box)
X DOMESTIC X PROFIT
FOREIGN NONPROFIT
1. Name of Corporation:
Mississippi Power & Light Company
Federal Tax ID: 64-0205830
2. Current street address of registered office:
308 East Pearl Street
Jackson, Mississippi 39201
3. New street address of registered office: (No change)
4. Name of current registered agent:
Donald C. Lutken or Robert C. Grenfell
5. Name of new registered agent:
Michael B. Bemis or Robert C. Grenfell
6. (Mark appropriate box)
(X) The undersigned hereby accepts designation as
registered agent for service of process.
/s/ Michael B. Bemis
/s/ Robert C. Grenfell
( ) Statement of written consent if attached.
7. ( ) Nonprofit. The street address of the registered
office and the street address of the
principal office of its registered
agent will be identical.
(X) Profit. The street address of the registered
office and the street address of the
business office of its registered agent
will be identical.
8. The corporation has been notified of the change of
registered office.
Mississippi Power & Light Company
Corporate Name
By: Michael B. Bemis, President and COO /s/ Michael B. Bemis
PRINTED NAME/CORPORATE TITLE SIGNATURE
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (Supp. 1988)
March 30, 1989
The undersigned corporation, pursuant to Section 79-4-6.31
of the Mississippi Code of 1972, as amended, submits the
following document and sets forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 8,500 shares of 12%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,699,476 shares of preferred stock, 1,323,808
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 85,000 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 30th day of March, 1989.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (Supp. 1988)
March 30, 1989
The undersigned corporation, pursuant to Section 79-4-6.31
of the Mississippi Code of 1972, as amended, submits the
following document and sets forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 5,800 shares of 12%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,692,176 shares of preferred stock, 1,316,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 87,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 150,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 30th day of March, 1989.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
ARTICLES OF CORRECTION
(Mark appropriate box)
X PROFIT NONPROFIT
The undersigned corporation, pursuant to Section 79-4-1.24 (if a
profit corporation) or Section 79-11-113 (if a nonprofit
corporation) of the Mississippi Code of 1972, as amended, hereby
executes the following document and sets forth:
1. The name of the corporation is:
Mississippi Power & Light Company
2. (Mark appropriate box.)
(X) The document to be corrected is Articles of
Amendment which became effective on March 31,
1989 (date).
( ) A copy of the document to be corrected is attached.
3. The aforesaid articles contain the following incorrect
statement:
See Attachment "A"
4. a. The reason such statement is incorrect is: The
reduction in the number of shares of the class and
series referred to in attachment A was incorrectly
states as 8,500, and should have been 5,800, which
incorrect statement is a component of certain other
statements made in the Articles of Amendment, all as
reflected in attachment "A".
or
b. The manner in which the execution of such document
was defective was:
5. The correction is as follows: Attachment "B", a new
executed form of Articles of Amendment, is substituted
in its entirety for the Articles of Amendment referred
to above.
6. The certificate of correction shall become effective on
March 31, 1989.
By: Mississippi Power & Light Company /s/ G. A. Goff
printed name/corporation title G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
ATTACHMENT "A"
The following incorrect statements were included in the
Articles of Amendment under Miss. Code Ann. Section 74-4-6.31
(Supp. 1988) dated March 30, 1989:
1. Paragraph 2 thereof provided as follows: "The
reduction in the number of authorized shares, itemized
by class and series, is 8,500 shares of 12% Preferred
Stock, Cumulative, $100 par value."
2. Paragraph 3(b) provided in part as follows: "1,699,476
shares of preferred stock, 1,323,808 shares of which
are issued and outstanding in the following series:
(vi) 85,000 shares of 12% preferred stock,
cumulative, $100 par value;
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (Supp. 1988)
November 2, 1989
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (Supp. 1988), submits the following document
and sets forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 90,000 shares of 16.16%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,602,176 shares of preferred stock, 1,226,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $200 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 87,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 60,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 2nd day of November, 1989.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1972)
March 28, 1990
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1972), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 10,000 shares of
12.009% Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,592,176 shares of preferred stock, 1,216,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $200 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 77,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 60,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 30th day of March, 1990.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1972)
November 2, 1990
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1972), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 15,000 shares of 16.16%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,577,176 shares of preferred stock, 1,201,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 77,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 45,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 2nd day of November, 1990.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
[Letterhead of Wise Carter Child & Caraway]
March 26, 1991
Ms. Sylvia Jacobs
Branch Supervisor-Corporations Business Services
Secretary of State of State of Mississippi
202 North Congress Street, Suite 601
Jackson, MS 39205
Re: Mississippi Power & Light Company
Articles of Amendment
Dear Ms. Jacobs:
I received your Notice of Return regarding the Articles of
Amendment we recently filed for Mississippi Power & Light Company
under Section 79-4-6.31 of the Mississippi Code. Your Notice of
Return states that we must use Form C-3 provided in the Guide for
Domestic Corporations published by the Mississippi Secretary of
State.
I draw your attention to the fact that the Articles of
Amendment we are filing are being filed under Section 79-4-6.31
(1989) of the Mississippi Code, and not Section 79-4-10.06. I
agree that if we were filing Articles of Amendment under Section
79-4-10.06, the proper form to use would be Form C-3 provided by
the Mississippi Secretary of State. However, the Articles of
Amendment we are filing are being filed only because stock was
redeemed by the corporation and is now being cancelled.
We have used the form enclosed with this letter numerous
times in the past to file Articles of Amendment pursuant to
Section 79-4-6.31, after consultation with Ray Bailey. It is my
opinion that the form for the standard Articles of Amendment
would not be appropriate for the type of amendment we are filing,
and there is no place on the form to provide the information
required under Section 79-4-6.31. Accordingly, I am returning
our duplicate originals of the Articles of Amendment and request
that you file one among the records in your office, and return
the conformed copy, marked "Filed," to my attention at the above
address.
If you have any questions, please feel free to call at the
above direct dial number.
Very truly yours,
/s/ J. Michael Cockrell
J. Michael Cockrell
DMC/st
Enclosure
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
March 18, 1991
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is (a) 80 shares of 4.36%
preferred stock, cumulative, $100 par value; (b) 588
shares of 4.56% preferred stock, cumulative, $100 par
value; and (c) 10,000 shares of 12% preferred stock,
cumulative, $100 par value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,566,508 shares of preferred stock, 1,191,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 67,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 45,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)350,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 18th day of March, 1991.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ G. A. Goff
G. A. Goff
Senior Vice President,
Chief Financial Officer
and Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
July 12, 1991
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,496,508 shares of preferred stock, 1,121,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 67,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 45,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)280,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 12th day of July, 1991.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
A. H. Mapp
Assistant Treasurer and
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
November 19, 1991
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 15,000 shares of 16.16%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,481,508 shares of preferred stock, 1,106,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 67,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 30,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)280,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 19th day of November, 1991.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
A. H. Mapp
Assistant Treasurer and
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
March 13, 1992
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 10,000 shares of 12%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 7,579,400 of such shares being issued and
outstanding at the date hereof; and
(b)1,471,508 shares of preferred stock, 1,096,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 57,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 30,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)280,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 13th day of March, 1992.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
July 15, 1992
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)1,401,508 shares of preferred stock, 1,026,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 57,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 30,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)210,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
Dated this the 15th day of July, 1992.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment - Statement of Resolution
Establishing Series of Shares
October 22, 1992
Pursuant to the provisions of Section 79-4-6.02(d) of the
Mississippi Code of 1972 (Supp. 1989), Mississippi Power & Light
Company submits the following statement for the purpose of
establishing and designating a series of shares and fixing and
determining the relative rights and preferences thereof:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The attached resolution establishing and designating a
series of shares and fixing and determining the relative
rights and preferences thereof was duly adopted by the
Board of Directors of the Corporation on October 22,
1992.
Dated this the 22nd day of October, 1992.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
Allan H. Mapp
Assistant Secretary and
Assistant Treasurer
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Excerpts from the minutes of the Meeting
of the Board of Directors held on October 22, 1992
RESOLVED That there is hereby established a series of the
Preferred Stock of Mississippi Power & Light Company as follows:
A series of 200,000 shares of the Preferred Stock shall:
(a) be designated as the "8.36% Preferred Stock,
Cumulative, $100 Par Value";
(b) have a dividend rate of $8.36 per share per annum
payable quarterly on February 1, May 1, August 1, and November 1
of each year, the first dividend date to be February 1, 1993, and
such dividends to be cumulative from the date of issuance; and
(c) be subject to redemption at the price of $100 par share
plus an amount equivalent to the accumulated and unpaid dividends
thereon, if any, to the date fixed for redemption (except that no
share of the 8.36% Preferred Stock shall be redeemed on or before
October 1, 1997).
FURTHER RESOLVED That the officers of the Company are hereby
authorized and directed to execute, file and publish and record
all such statements and other documents, and to do and perform
all such other and further acts and things, as in the judgment of
the officer and officers taking such action may be necessary or
desirable for the purpose of causing the immediately preceding
resolution to become fully effective and of causing said
resolution to become and constitute an amendment of the Restated
Articles of Incorporation of the Company, all in the manner and
to the extent required by the Mississippi Business Corporation
Law.
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
November 6, 1992
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 15,000 shares of 16.16%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)1,386,508 shares of preferred stock, 1,211,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 57,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 15,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)210,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 350,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(x) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 6th day of November, 1993.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
January 12, 1993
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.76%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)1,316,508 shares of preferred stock, 1,141,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 57,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 15,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)210,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 280,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(x) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 12th day of January, 1993.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
March 10, 1993
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 10,000 shares of 12.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)1,306,508 shares of preferred stock, 1,131,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 47,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 15,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)210,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 280,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(x) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 10th day of March, 1993.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ A. H. Mapp
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
July 12, 1993
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)1,236,508 shares of preferred stock, 1,061,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 47,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 15,000 shares of 16.16% preferred stock,
cumulative, $100 par value;
(viii)140,000 shares of 9% preferred stock,
cumulative, $100 par value;
(ix) 280,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(x) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 12th day of July, 1993.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ James W. Snider
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
November 15, 1993
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 15,000 shares of 16.16%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)1,221,508 shares of preferred stock, 1,046,508
shares of which are issued and outstanding in the
following series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 47,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 140,000 shares of 9% preferred stock,
cumulative, $100 par value;
(viii)280,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 15th day of November, 1993.
MISSISSIPPI POWER & LIGHT COMPANY
By /s/ James W. Snider
Title: Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-10.06 (1989)
February 4, 1994
The undersigned corporation, pursuant to Section 79-4-10.06
of the Mississippi Code of 1972, as amended, submits the
following document and sets forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. As evidenced by the attached Stockholder's Written
Approval of Amendment authorizing 1,500,000 additional
shares of Preferred Stock of the par value of $100 per
share, the following amendment of the Restated Articles
of Incorporation, as amended (the "Charter"), was
proposed by the Board of Directors of Mississippi Power
& Light Company on October 29, 1993, was adopted by the
stockholders of the Corporation entitled to vote on the
amendment on February 4, 1994, in accordance with and in
the manner prescribed by the laws of the State of
Mississippi and the Charter of Mississippi Power & Light
Company:
The first paragraph in Article FOURTH of the Charter is
amended to read as follows:
FOURTH: The aggregate number of shares which the
Corporation shall have authority to issue is
17,721,508 shares, divided into 2,721,508 shares of
Preferred Stock of the par value of $100 per share
and 15,000,000 shares of Common Stock without par
value.
3. Pursuant to the Laws of the State of Mississippi and the
Charter of Mississippi Power & Light Company, the
holders of Preferred Stock of the par value of $100 per
share were not entitled to vote on the amendment as a
separate voting group. The holders of the outstanding
shares of common stock were the only stockholders
entitled to vote on the amendment.
4. The number of shares of common stock of the corporation
outstanding at the time of such adoption was 8,666,357;
and the number of shares entitled to vote thereon was
8,666,357.
Dated this the 4th day of February, 1994.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ Edwin Lupberger
Edwin Lupberger
Chairman of the Board and
Chief Executive Officer
By: /s/ Donald E. Meiners
Donald E. Meiners
President
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
March 17, 1994
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 10,000 shares of 12.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,641,508 shares of preferred stock, 966,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 37,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 140,000 shares of 9% preferred stock,
cumulative, $100 par value;
(viii)210,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 17th day of March, 1994.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
August 1, 1994
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,571,508 shares of preferred stock, 896,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 37,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 70,000 shares of 9% preferred stock,
cumulative, $100 par value;
(viii)210,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 1st day of August, 1994.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
January 18, 1995
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.76%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,501,508 shares of preferred stock, 826,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 37,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 70,000 shares of 9% preferred stock,
cumulative, $100 par value;
(viii)140,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 18th day of January, 1995.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
March 7, 1995
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 10,000 shares of 12.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,491,508 shares of preferred stock, 816,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 27,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 70,000 shares of 9% preferred stock,
cumulative, $100 par value;
(viii)140,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 7th day of March, 1995.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
July 20, 1995
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.00%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,421,508 shares of preferred stock, 746,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 27,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 140,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 20th day of July, 1995.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
January 19, 1996
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 70,000 shares of 9.76%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,351,508 shares of preferred stock, 676,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 27,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 70,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 19th day of January, 1996.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment Under Miss. Code Ann.
Section 79-4-6.31 (1989)
March 6, 1996
The undersigned corporation, pursuant to Miss. Code Ann.
Section 79-4-6.31 (1989), submits the following document and sets
forth:
1. The name of the corporation is Mississippi Power & Light
Company.
2. The reduction in the number of authorized shares,
itemized by class and series, is 10,000 shares of 12%
Preferred Stock, Cumulative, $100 Par Value.
3. The total number of authorized shares, itemized by class
and series, remaining after reduction of the shares is
as follows:
(a)15,000,000 shares of common stock, without par
value, 8,666,357 of such shares being issued and
outstanding at the date hereof; and
(b)2,341,508 shares of preferred stock, 666,508 shares
of which are issued and outstanding in the following
series:
(i) 59,920 shares of 4.36% preferred stock,
cumulative, $100 par value;
(ii) 43,888 shares of 4.56% preferred stock,
cumulative, $100 par value;
(iii) 100,000 shares of 4.92% preferred stock,
cumulative, $100 par value;
(iv) 75,000 shares of 9.16% preferred stock,
cumulative, $100 par value;
(v) 100,000 shares of 7.44% preferred stock,
cumulative, $100 par value;
(vi) 17,700 shares of 12% preferred stock,
cumulative, $100 par value;
(vii) 70,000 shares of 9.76% preferred stock,
cumulative, $100 par value; and
(ix) 200,000 shares of 8.36% preferred stock,
cumulative, $100 par value.
Dated this the 6th day of March, 1996.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ J. W. Snider, Jr.
Assistant Secretary
Exhibit B-23(a)
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF INCORPORATION OF "ENTERGY PAKISTAN,
LTD.", FILED IN THIS OFFICE ON THE NINETEENTH DAY OF AUGUST, A.D.
1994, AT 11:01 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/Edward J. Freel
Edward J. Freel, Secretary of
State
2428288 8100 AUTHENTICATION: 7216784
944155679 DATE: 08-19-94
<PAGE>
CERTIFICATE OF INCORPORATION
OF
ENTERGY PAKISTAN, LTD.
* * * * *
1. The name of the corporation is
ENTERGY PAKISTAN, LTD.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware. 4. The total number of shares of stock which the
corporation shall have authority to issue is one thousand (1000)
and the par value of each of such shares is One Dollar ($1.00)
amounting in the aggregate to One Thousand Dollars ($1000.00).
5A. The name and mailing address of each incorporator is as
follows:
NAME MAILING ADDRESS
M. A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
D. A. Hampton Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person, who is to
serve as a director until the first annual meeting of the
stockholders or until a successor is elected and qualified, is as
follows:
NAME MAILING ADDRESS
Terry L. Ogletree 900 South Shackleford
#3 Financial Centre, Suite 210
Little Rock, AR 72211
Gerald D. McInvale 900 South Shackleford
#3 Financial Centre, Suite 210
Little Rock, AR 72211
Michael G. Thompson 900 South Shackleford
#3 Financial Centre, Suite 210
Little Rock, AR 72211
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly
authorized to make, alter or repeal the bylaws of the corporation.
WE, THE UNDERSIGNED, being each of the incorporators
hereinbefore named, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware,
do make this certificate, hereby declaring and certifying that this
is our act and deed and the facts herein stated are true, and
accordingly have hereunto set our hands this
day 19th of August, 1994.
/s/M. A. Brzoska
Incorporator
/s/D. A. Hampton
Incorporator
/s/L. J. Vitalo
Incorporator
Exhibit B-23(b)
BY-LAWS
OF
Entergy Pakistan, Ltd.
ARTICLE I
Offices
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation also
may have offices at such other places, both within and without the State of
Delaware, as from time to time may be designated by the Board of Directors.
ARTICLE II
Books
The books and records of the Corporation may be kept (except as
otherwise provided by the laws of the State of Delaware) outside the State
of Delaware and at such place or places as from time to time may be
designated by the Board of Directors.
ARTICLE III
Meetings of Stockholders
Section 1. Annual Meetings. Each annual meeting of the
stockholders shall be held (i) at a time fixed by the Board of Directors,
on the third Friday in May, if not a legal holiday; (ii) if a legal
holiday, then at the same time on the next business day which is not a
legal holiday; or (iii) at such date and time during such calendar year as
shall be stated in the notice of the meeting or in a duly executed waiver
of notice thereof. The annual meeting of the stockholders shall be held at
the principal business office of the Corporation or at such other place or
places either within or without the State of Delaware as may be designated
by the Board of Directors and stated in the notice of the meeting At each
such meeting, the stockholders shall elect by a plurality vote a Board of
Directors, and transact such other business as may come before the meeting.
Written notice of the time and place designated for the annual
meeting of the stockholders of the Corporation shall be delivered
personally or mailed to each stockholder entitled to vote thereat not less
than ten (10) and not more than sixty (60) days prior to said meeting, but
at any meeting at which all stockholders shall be present, or of which all
stockholders not present have waived notice in writing, the giving of
notice as above described may be dispensed with. If mailed, said notice
shall be directed to each stockholder at his address as the same appears on
the stock ledger of the Corporation unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for
him be mailed to some other address, in which case it shall be mailed to
the address designated in such request.
Section 2. Special Meetings. Special meetings of the stockholders
of the Corporation shall be held whenever called in the manner required by
the laws of the State of Delaware for purposes as to which there are
special statutory provisions, and for such other purposes as required or
permitted by the Certificate of Incorporation or otherwise, whenever called
by resolution of the Board of Directors, or by the Chairman of the Board,
the President, or the holders of a majority of the issued and outstanding
shares of the common stock of the Corporation. Any such special meeting of
stockholders may be held at the principal business office of the
Corporation or at such other place or places, either within or without the
State of Delaware, as may be specified in the notice thereof. Business
transacted at any special meeting of stockholders of the Corporation shall
be limited to the purposes stated in the notice thereof. Except as
otherwise expressly required by the laws of the State of Delaware or the
Certificate of Incorporation, written notice of each special meeting,
stating the day, hour and place, and in general terms the business to be
transacted thereat, shall be delivered personally or mailed to each
stockholder entitled to vote thereat not less than ten (10) and not more
than sixty (60) days before the meeting. If mailed, said notice shall be
directed to each stockholder at his address as the same appears on the
stock ledger of the Corporation unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for
him be mailed to some other address, in which case it shall be mailed to
the address designated in said request. At any special meeting at which all
stockholders shall be present, or of which all stockholders not present
have waived notice in writing, the giving of notice as above described may
be dispensed with.
Section 3. Quorum. At any meeting of the stockholders of the
Corporation, except as otherwise expressly provided by the laws of the
State of Delaware or the Certificate of Incorporation, there must be
present, either in person or by proxy, in order to constitute a quorum,
stockholders owning a majority of the issued and outstanding shares of the
common stock of the Corporation entitled to vote at said meeting. At any
meeting of stockholders at which a quorum is not present, the holders of,
or proxies for, a majority of the common stock which is represented at such
meeting, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting.
Section 4. Voting Each holder of record of the common stock of
the Corporation shall, at every meeting of the stockholders of the
Corporation, be entitled to one (1) vote for each share of common stock
standing in his name on the books of the Corporation, and such votes may be
cast either in person or by proxy, appointed by an instrument in writing,
subscribed by such stockholder or by his duly authorized attorney, and
filed with the Secretary before being voted on, but no proxy shall be voted
after three (3) years from its date, unless said proxy provides for a
longer period. Except as otherwise required by the laws of the State of
Delaware or the Certificate of Incorporation, the holders of the common
stock of the Corporation shall exclusively possess all voting power for the
election of Directors and for all other purposes and are entitled to vote
on each matter to be voted on at a stockholders' meeting.
The vote on all elections of Directors and other questions before
the meeting need not be by ballot, except upon demand by the holders of the
majority of the shares of the common stock of the Corporation present in
person or by proxy.
When a quorum is present at any meeting of the stockholders of
the Corporation, the vote of the holders of a majority of the shares of the
common stock of the Corporation and present in person or represented by
proxy shall decide any question brought before such meeting, unless the
question is one upon which, under any provision of the laws of the State of
Delaware or of the Certificate of Incorporation, a different vote is
required, in which case such provision shall govern and control the
decision of such question.
Whenever the vote of the holders of the common stock of the
Corporation at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provision of the laws of the
State of Delaware or of the Certificate of Incorporation, such corporate
action may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding common stock of the Corporation having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented thereto in
writing.
Section 5. List of Stockholders. The officer of the Corporation
who shall have charge of the stock ledger of the Corporation shall prepare
and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting,
arranged in alphabetical order and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours for a period of at
least ten (10) days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list also shall be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 6. Organization. The Chairman of the Board or the
President, or in their absence, any Vice President, shall call to order
meetings of the stockholders and shall act as chairman of such meetings.
The Board of Directors or the stockholders may appoint any stockholder or
any Director or officer of the Corporation to act as chairman of any
meeting in the absence of the Chairman of the Board, the President and all
of the Vice Presidents.
The Secretary of the Corporation shall act as secretary of all
meetings of the stockholders, but in the absence of the Secretary the
presiding officer may appoint any other person to act as secretary of any
meeting.
ARTICLE IV
Directors
Section 1. Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors which may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation; subject, nevertheless, to the provisions of the laws of the
State of Delaware, the Certificate of Incorporation, and any By-Laws from
time to time passed by the stockholders; provided, however, that no By-Law
so created shall invalidate any prior act of the Directors which was valid
in the absence of such By-Law.
Section 2. Number of Directors. The number of Directors which
shall constitute the whole Board shall be not less than one (1) nor more
than ten (10). Within such limits, the number of Directors may be fixed
from time to time by vote of the stockholders or of the Board of Directors
at any regular or special meeting. Directors need not be stockholders.
Directors shall be elected at the annual meeting of the stockholders of the
Corporation, except as herein provided, to serve until the next annual
meeting of stockholders and until their respective successors are duly
elected and have qualified.
Section 3. Vacancies. Vacancies occurring among the Directors
(other than in the case of removal of a Director) shall be filled by a
majority vote of the Directors then in office with the consent of the
holders of a majority of the issued and outstanding common stock of the
Corporation, or by the sole remaining Director with the consent of the
holders of a majority of the issued and outstanding common stock of the
Corporation, or by resolution duly adopted by the holders of a majority of
the issued and outstanding common stock of the Corporation, at a special
meeting held for such purpose, or by action taken in lieu of such meeting,
or at the next annual meeting of stockholders following any vacancy.
Section 4. Removal. At any meeting of stockholders of the
Corporation called for the purpose, the holders of a majority of the issued
and outstanding shares of the common stock of the Corporation may remove
from office, with or without cause, any or all of the Directors and the
successor of any Director so removed shall be elected by the holders of a
majority of the issued and outstanding common stock of the Corporation at
such meeting or at a later meeting.
Section 5. Meetings. The first meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting
of stockholders and at the same place at which regular meetings of the
Board of Directors are held, or at such other time and place as may be
provided by resolution of the Board of Directors, and no notice of such
meeting shall be necessary to the newly elected Directors in order legally
to constitute a meeting, provided a quorum is present. In the event that
such first meeting of the newly elected Board of Directors is not held at
the time and place authorized by the foregoing provision, the meeting may
be held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as
shall be specified in a written waiver signed by all the Directors. Regular
meetings of the Board of Directors may be held without notice at such time
and place, either within or without the State of Delaware, as shall from
time to time be determined by resolutions of the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman of
the Board or by the President on reasonable notice as provided in these
By-Laws, and such meetings shall be held at the principal business office
of the Corporation or at such other place or places, either within or
without the State of Delaware, as shall be specified in the notice thereof.
Directors present thereat, by majority vote, may adjourn the meeting from
time to time, without notice other than an announcement at the meeting,
until a quorum shall be present. Except as may be otherwise specifically
provided by the laws of the State of Delaware, the Certificate of
Incorporation or these By-Laws, the affirmative vote of a majority of the
Directors present at the time of such vote shall be the act of the Board of
Directors if a quorum is present.
Section 6. Notice of Meetings. Notice of any meeting of the Board
of Directors requiring notice shall be given to each Director by personal
delivery or by mail or by telegram, in any case at least forty-eight (48)
hours before the time fixed for the meeting. At any meeting at which all
Directors shall be present, or at which all Directors not present have
waived notice in writing, the giving of notice as above described may be
dispensed with. Attendance of a Director at a meeting shall constitute
waiver of notice of such meeting, except when such Director attends such
meeting for the express purpose of objecting, at the beginning of such
meeting, to the transaction of any business because such meeting is not
lawfully called or convened.
Section 7. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if all members of the Board consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of
the Board.
Section 8. Telephonic Meetings. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, members of the Board of
Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment by means of which all persons
participating in such meeting can hear each other, and participation in a
meeting pursuant to this Section 8 of Article IV shall constitute presence
in person at such meeting.
Section 9. Resignations. Any Director of the Corporation may
resign at any time by giving written notice to the Board of Directors or to
the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, upon receipt thereof; and unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
ARTICLE V
Executive Committee and Other Committees
Section 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, appoint an
Executive Committee of not less than two or more than five members, to
serve during the pleasure of the Board of Directors, to consist of the
Chairman of the Board, and such additional Director(s) as the Board of
Directors may from time to time designate. The Chairman of the Board of the
Corporation shall be Chairman of the Executive Committee.
Section 2. Procedure. The Executive Committee shall meet at the
call of the Chairman of the Executive Committee or of any two members. A
majority of the members shall be necessary to constitute a quorum and
action shall be taken by a majority vote of those present.
Section 3. Powers and Reports. During the intervals between the
meetings of the Board of Directors, the Executive Committee shall possess
and may exercise, to the fullest extent permitted by law, all the powers of
the Board of Directors in the management and direction of the business and
affairs of the Corporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it. The taking of action by
the Executive Committee shall be conclusive evidence that the Board of
Directors was not in session when such action was taken. The Executive
Committee shall keep regular minutes of its proceedings and all action by
the Executive Committee shall be reported to the Board of Directors at its
meeting next following the meeting of the Executive Committee and shall be
subject to revision or alteration by the Board of Directors, provided, that
no rights of third parties shall be affected by such revision or
alteration.
Section 4. Other Committees. From time to time the Board of
Directors, by the affirmative vote of a majority of the whole Board of
Directors, may appoint other committees for any purpose or purposes, and
such committees shall have such powers as shall be conferred by the
resolution of appointment. In the absence or disqualification of a member
of any committee (including the Executive Committee), the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any such absent
or disqualified member.
ARTICLE VI
Officers
Section 1. Number. Election and Term of Office. The Board of
Directors may elect a Chairman of the Board, a Chief Executive Officer,
and/or a Chief Operating Officer, and shall elect a President, a Secretary,
a Treasurer, and in their discretion, one or more Vice Presidents. The
Chief Executive Officer or, if no Chief Executive Officer is elected, the
President, subject to the direction of the Board of Directors, shall have
direct charge of and general supervision over the business and affairs of
the Corporation. The officers of the Corporation shall be elected annually
by the Board of Directors at its meeting held immediately after the annual
meeting of the stockholders (other than the initial officers elected by
unanimous consent of the initial Board of Directors), and each shall hold
his office until his successor shall have been duly elected and qualified
or until he shall have died or resigned or shall have been removed by
majority vote of the entire Board of Directors. Any number of offices may
be held by the same person. The Board of Directors may from time to time
appoint such other officers and agents as the interest of the Corporation
may require and may fix their duties and terms of office.
Section 2. Chairman of the Board. The Chairman of the Board shall
be a member of the Board of Directors. He shall preside at all meetings of
the Board of Directors, and shall have such other duties as from time to
time may be assigned to him by the Board of Directors, by the Executive
Committee or, if the President shall have been designated chief executive
officer of the Corporation, by the President.
Section 3. President. The President shall perform all duties
incident to the office of a president of a corporation and such other
duties as from time to time may be assigned to him by the Board of
Directors or by the Executive Committee, or if the Chairman of the Board
shall have been designated chief executive officer of the Corporation, by
the Chairman of the Board. At any time when the office of the Chairman of
the Board shall be vacant or if the Board of Directors shall not elect a
Chairman of the Board, the President of the Corporation shall be the chief
executive officer of the Corporation.
Section 4. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties incident to the office of a vice
president of a corporation, and such other duties from time to time may be
conferred upon or assigned to him by the Board of Directors or as may be
delegated to him by the Chairman of the Board (if chief executive officer)
or the President.
Section 5. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books
provided for the purpose; shall see that all notices are duly given in
accordance with the provisions of the law and these By-Laws; shall be
custodian of the records and of the corporate seal of the Corporation;
shall see that the corporate seal is affixed to all documents the execution
of which under the seal is duly authorized, and when the seal is so affixed
may attest the same; may sign, with the Chairman of the Board (if chief
executive officer), the President or a Vice President, certificates of
stock of the Corporation; and in general, shall perform all duties incident
to the office of a secretary of a corporation, and such other duties as
from time to time may be assigned by the Chairman of the Board (if chief
executive officer), the President or the Board of Directors.
The Secretary shall also keep, or cause to be kept, a stock book,
containing the names, alphabetically arranged, of all persons who are
stockholders of the Corporation, showing their places of residence, the
number of shares held by them respectively, and the time when they
respectively became owners thereof.
Section 6. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of
the Corporation, all moneys or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected by
the Board of Directors or by the Treasurer if so authorized by the Board of
Directors; may endorse for collection on behalf of the Corporation, checks,
notes and other obligations; may sign receipts and vouchers for payments
made to the Corporation; singly or jointly with another person as the Board
of Directors may authorize, may sign checks on the Corporation and pay out
and dispose of the proceeds under the direction of the Board; shall render
or cause to be rendered to the Chairman of the Board (if chief executive
officer), the President and the Board of Directors, whenever requested, an
account of the financial condition of the Corporation; may sign, with the
Chairman of the Board (if chief executive officer), the President or a Vice
President, certificates of stock of the Corporation; and in general, shall
perform all the duties incident to the office of a treasurer of a
corporation, and such other duties as from time to time may be assigned by
the Chairman of the Board (if chief executive officer), the President or
the Board of Directors.
Section 7. Subordinate Officers. The Board of Directors may
appoint such assistant secretaries, assistant treasurers and other
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to
time, authorize the chief executive officer to appoint and remove
subordinate officers and to prescribe the powers and duties thereof.
Section 8. Transfer of Duties. The Board of Directors in its
absolute discretion may transfer the power and duties, in whole or in part,
of any officer to any other officer, or persons, notwithstanding the
provisions of these By-Laws, except as otherwise provided by the laws of
the State of Delaware.
Section 9. Vacancies. Absences. If the office of Chairman of the
Board, President, Vice President, Secretary or Treasurer, or of any other
officer or agent becomes vacant for any reason, the Board of Directors may,
but is not required to, choose a successor to hold office for the remainder
of the unexpired term. Except when the law requires the act of a particular
officer, the Board of Directors whenever necessary may, in the absence of
any officer, designate any other officer or properly qualified employee, to
perform the duties of the one absent for the time being, and such
designated officer or employee shall have, when so acting, all the powers
herein given to such absent officer.
Section 10 Removals at any meeting of the Board of Directors
called for the purpose, any officer or agent of the Corporation may be
removed from office, with or without cause, by the affirmative vote of a
majority of the entire Board of Directors.
Section 11. Resignations. Any officer or agent of the Corporation
may resign at any time by giving written notice to the Board of Directors,
the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time is not specified, upon receipt thereof; and unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
Section 12. Compensation of Officers. The officers shall receive
such salary or compensation as may be determined by the affirmative vote of
the majority of the Board of Directors. No officer shall be prevented from
receiving such salary or compensation by reason of the fact that he is also
a Director of the Corporation.
Section 13. Delegation of Powers. Each officer may delegate to
any other officer and to any official, employee or agent of the
corporation, such portions of his powers as he shall deem appropriate,
subject to such limitations and expirations as he shall specify, and may
revoke such delegation at any time.
ARTICLE VII
Contracts. Checks and Notes
Unless the Board of Directors shall otherwise specifically
direct, all contracts, checks, drafts, bills of exchange and promissory
notes and other negotiable instruments of the Corporation shall be executed
in the name of the Corporation by the Chairman of the Board, the President,
a Vice President, Secretary or Treasurer or any officer as may be
designated by the Board of Directors.
ARTICLE VIII
Capital Stock
Section 1. Certificates of Stock. The certificates for shares of
the stock of the Corporation shall be in such form, not inconsistent with
the Certificate of Incorporation, as shall be prepared or approved by the
Board of Directors. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by, or in the name of the
Corporation, by the Chairman of the Board (if chief executive officer), the
President or a Vice President, and by the Treasurer or the Secretary
certifying the number of shares owned by him and the date of issue; and no
certificate shall be valid unless so signed. All certificates shall be
consecutively numbered and shall be entered in the books of the Corporation
as they are issued.
All signatures on the certificate may be facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 2. Transfer of Stock. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. Registered Stockholders. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as
the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to, or interest in, such share or
shares on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of
the State of Delaware.
Section 4. Lost Certificates Any person claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of the
fact and advertise the same in such manner as the Board of Directors may
require, and the Board of Directors, in its discretion, may require the
owner of the lost or destroyed certificate, or his legal representative, to
give the Corporation a bond in a sum sufficient, in the opinion of the
Board of Directors, to indemnify the Corporation against any claim that may
be made against it on account of the alleged loss of any such certificate.
A new certificate of the same tenor and for the same number of shares as
the one alleged to be lost or destroyed may be issued without requiring any
bond when, in the judgment of the Directors, it is proper so to do.
Section 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise
any rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting, provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
ARTICLE IX
Dividends
Dividends upon the common stock of the Corporation may be
declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares
of the common stock of the Corporation, subject to the provisions of the
Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sums as the Directors
from time to time, in their absolute discretion, think proper as a reserve
or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in
the manner in which it was created.
ARTICLE X
Waiver of Notice
Whenever any notice whatever is required to be given by statute
or under the provisions of the Certificate of Incorporation or these
By-Laws, a waiver thereof in writing signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be equivalent thereto, unless expressly provided otherwise in such
statute, Certificate of Incorporation or these By-Laws.
ARTICLE XI
Seal
The corporate seal of the Corporation shall have inscribed
thereon the name of the Corporation, the year of its organization and the
words "Corporate Seal, Delaware", or shall be in such other form as the
Board of Directors may prescribe.
ARTICLE XII
Fiscal Year
The fiscal year of the Corporation shall be the calendar year.
ARTICLE XIII
Indemnification; Advancement of Expenses;
Insurance and Other Funding Arrangements
Section 1. Mandatory Indemnification - Third Party Actions. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding ("Action"), whether civil, criminal,
administrative or investigative (other than an Action by or in the right of
the Corporation) by reason of the fact that he is or was a Director,
officer or employee of the Corporation, or is or was serving at the request
of the Corporation as a Director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonable incurred by him in connection with such
Action if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal Action, had no reasonable cause to believe his
conduct was unlawful. The termination of any Action by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interest of the Corporation, and, with respect
to any criminal Action, had reasonable cause to believe that his conduct
was unlawful. The right to indemnification under this Section 1 of Article
XIII shall be a contract right that may be enforced in any lawful manner by
a person entitled to such indemnification.
Section 2. Mandatory Indemnification - Derivative Actions. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
Action by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a Director, officer or
employee of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, or employee of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such Action if he acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation and except that no indemnification
under these By-Laws shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation, unless and only to the extent that the Court of Chancery of
the State of Delaware or the court in which such Action was brought, shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper The
right to indemnification under this Section 2 of Article XII shall be a
contract right that may be enforced in any lawful manner by a person
entitled to such indemnification.
Section 3. Mandatory Indemnification - Successful Party. To the
extent that a Director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any Action
referred to in Sections I or 2 of this Article XIII, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith. The right to indemnification under this Section 3 of
Article XIII shall be a contract right that may be enforced in any lawful
manner by a person entitled to such indemnification.
Section 4. Permissive Indemnification. Except as otherwise
expressly provided in Section 2 of this Article XIII, the Corporation may
also indemnify any person who is or was a party or is threatened to be made
a party to any Action by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against all or part of any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such Action if it shall be determined in accordance
with the applicable procedures set forth in Section 5 that such person is
fairly and reasonably entitled to such indemnification.
Section 5. Procedure. Any indemnification under the foregoing
provisions of this Article XIII (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2, or is entitled to
indemnification under Section 4, of this Article XIII. Such determination
shall be made (i) by the Board of Directors by a majority vote of a quorum,
as defined in the Certificate of Incorporation or these By-Laws, consisting
of Directors who are not or were not parties to any pending or completed
Action giving rise to the proposed indemnification, or (ii) if such a
quorum is not obtainable or, even if obtainable, a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
Section 6. Advance Payments. Expenses (including attorneys' fees)
incurred or reasonably expected to be incurred by a Director or officer of
the Corporation in defending any Action referred to in Sections 1 or 2 of
this Article XIII shall be paid by the Corporation in advance of the final
determination thereof upon receipt by the Corporation of his written
request therefor and his written promise to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized or required by this Article XIII. The right of
Directors and officers to advancement of expenses under this Section 6 of
Article XIII shall be a contract right that may be enforced in any lawful
manner by a Director or officer of the Corporation. Such expenses incurred
by other employees and agents may be paid upon such terms and conditions,
if any, as the Board of Directors deems appropriate.
Section 7. Provisions Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article
shall not be deemed exclusive of any other rights to which any person
seeking indemnification and advancement of expenses, may be entitled under
any law, by-law, agreement, vote of stockholders or disinterested Directors
or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a Director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a Director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Article XIII.
Section 9. Other Arrangements The Corporation also may obtain a
letter of credit, act as a self-insurer, create a reserve, trust, escrow,
cash collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or properties
of the Corporation, or use any other mechanism or arrangement whatsoever in
such amounts, at such costs, and upon such other terms and conditions as
the Board of Directors shall deem appropriate for the protection of any or
all such persons.
Section 10. Severability. If this Article XIII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
as to whom the Corporation has agreed to grant indemnity, as to liabilities
and expenses, and amounts paid or to be paid in settlement with respect to
any proceeding, including an action by or in the right of the Corporation,
to the full extent permitted by any applicable portion of this Article III
that shall not have been invalidated and to the full extent permitted by
applicable law.
Section 11. Miscellaneous. (a) For the purposes of this Article
XIII, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger, as well as the resulting or
surviving corporation, so that any person who is or was a Director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a Director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article XIII with respect to the resulting or
surviving corporation as he would if he had served the resulting or
surviving corporation in the same capacity.
(b) For purposes of this Article XIII, references to "other
enterprises" shall include employee benefit plans; references to "fines'
shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any services as a Director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by,
such Director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good faith in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article XIII.
(c) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article XIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE XIV
General Provisions
Section 1 The Chairman of the Board, the President, any Vice
President or the Treasurer of the Corporation may attend any meeting of the
holders of stock or other securities of any other corporation, any of whose
stock or other securities are held by the Corporation, and cast the votes
which the Corporation is entitled to cast as a stockholder or otherwise at
such meeting, or may consent in writing to any action by any such
corporation, and may execute on behalf of the Corporation and under its
corporate seal, or otherwise, such written proxies, consents, waivers or
other instruments as he may deem necessary or appropriate. Any of the
foregoing acts or functions may also be performed by any one or more of
such persons as shall from time to time be authorized by the Board of
Directors or by a writing executed by the chief executive officer of the
Corporation.
Section 2. The moneys of the Corporation shall be deposited in
the name of the Corporation in such bank or banks or trust company or trust
companies as the Board of Directors shall from time to time designate, and
shall be drawn out only by signed checks or by telephonic or other
electronic advice given and subsequently confirmed by means which the bank
or trust company may require, by persons designated in a resolution or
resolutions of the Board of Directors or by such other persons designated
by a writing executed by persons authorized to so designate in a resolution
or resolutions of the Board of Directors.
Section 3. Notices to Directors and stockholders shall be in
writing and delivered personally or mailed to the Directors or stockholders
at their addresses appearing on the books of the Corporation Notice by mail
shall be deemed to be given at the time when the same shall be mailed.
Notice to Directors may also be given by telegraph, and any such notice
shall be deemed to be given when delivered to an office of the transmitting
company with all charges prepaid.
Section 4. Alterations, amendments or repeals of these By-Laws,
or any of them, may be made by a majority of the stockholders entitled to
vote at any meeting thereof, if the notice of such meeting contains a
statement of the proposed alteration, amendment or repeal, or by the Board
of Directors by a majority vote of the whole Board of Directors at any
meeting thereof, provided notice of such alteration, amendment or repeal
has been given to each Director in writing. No notice of any alteration,
amendment or repeal need be given if adopted by action taken at a meeting
duly held on waiver of notice.
Exhibit B-24(a)
THE COMPANIES LAW (REVISED) _
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
ENTERGY POWER ASIA, LTD.
REGISTERED AND FILED
AS NO. 53694 THIS 21ST DAY
OF APRIL, 1994
/s/C. Jefferson
Dep. Registrar of Companies
Cayman Islands
1. In these Articles Table A in the Schedule to the Statute does not
apply and, unless there be something in the subject or context inconsistent
therewith,
"Articles" means these Articles as originally
framed or as from time to time altered
by Special Resolution.
"The Auditors" means the persons for the time being
performing the duties of auditors of
the Company.
"The Company" means the above named Company.
"debenture" means debenture stock, mortgages,
bonds and any other such securities of
the Company whether constituting a
charge on the assets of the Company or
not.
"The Directors" means the directors for the time being
of the Company.
"dividend" includes bonus.
"Member" shall bear the meaning as ascribed to
it in the Statute.
"month" means calendar month.
"The registered office" means the registered office for the
time being of the Company.
"paid-up" means paid-up and/or credited as paid-
up.
"Seal" means the common seal of the Company
and includes every duplicate seal.
"Secretary" includes an Assistant Secretary and
any person appointed to perform the
duties of Secretary of the Company.
"Share" includes a fraction of a share.
"Special Resolution" has the same meaning as in the Statute
and includes a resolution approved in
writing as described therein.
"Statute" means the Companies Law of the Cayman
Islands as amended and every statutory
modification or re-enactment thereof
for the time being in force.
"written" and "in writing" include all modes of representing or
reproducing words in visible form.
Words importing the singular number only include the plural number and
vice-versa.
Words importing the masculine gender only include the feminine gender.
Words importing persons only include corporations.
2. The business of the Company may be commenced as soon after
incorporation as the Directors shall see fit, notwithstanding that part
only of the shares may have been allotted.
3. The Directors may pay, out of the capital or any other monies of the
Company, all expenses incurred in or about the formation and establishment
of the Company including the expenses of registration.
CERTIFICATES FOR SHARES
4. Certificates representing shares of the Company shall be in such form
as shall be determined by the Directors. Such certificates shall be under
seal. All certificates for shares shall be consecutively numbered or
otherwise identified and shall specify the shares to which they relate. The
name and address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered in
the register of Members of the Company. All certificates surrendered to the
Company for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and cancelled. The Directors may authorize certificates to
be issued with the seal and authorized signature(s) affixed by some method
or system of mechanical process.
5. Notwithstanding Article 4 of these Articles, if a share certificate be
defaced, lost or destroyed, it may be renewed on payment of a fee of one
dollar (US$1.00) or such less sum and on such terms (if any) as to evidence
and indemnity and the payment of the expenses incurred by the Company in
investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
6. Subject to the provisions, if any, in that behalf in the Memorandum of
Association and to any direction that may be given by the Company in
general meeting and without prejudice to any special rights previously
conferred on the holders of existing shares, the Directors may allot,
issue, grant options over or otherwise dispose of shares of the Company
(including fractions of a share) with or without preferred, deferred or
other special rights or restrictions, whether in regard to dividend,
voting, return of capital or otherwise and to such persons, at such times
and on such other terms as they think proper.
7. The Company shall maintain a register of its Members and every person
whose name is entered as a Member in the register of Members shall be
entitled without payment to receive within two months after allotment or
lodgement of transfer (or within such other period as the conditions of
issue shall provide) one certificate for all his shares or several
certificates each for one or more of his shares upon payment of fifty cents
(US$0.50) for every certificate after the first or such less sum as the
Directors shall from time to time determine provided that in respect of a
share or shares held jointly by several persons the Company shall not be
bound to issue more than one certificate and delivery of a certificate for
a share to one of the several joint holders shall be sufficient delivery to
all such holders.
TRANSFER OF SHARES
8. The instrument of transfer of any share shall be in writing and shall
be executed by or on behalf of the transferor and the transferor shall be
deemed to remain the holder of a share until the name of the transferee is
entered in the register in respect thereof.
9. The Directors may in their absolute discretion decline to register any
transfer of shares without assigning any reason therefor. If the Directors
refuse to register a transfer they shall notify the transferee within two
months of such refusal.
10. The registration of transfers may be suspended at such time and for
such periods as the Directors may from time to time determine, provided
always that such registration shall not be suspended for more than
forty-five days in any year.
REDEEMABLE SHARES
11. (a) Subject to the provisions of the Statute and the Memorandum of
Association, shares may be issued on the terms that they are, or at the
option of the Company or the holder are, to be redeemed on such terms and
in such manner as the Company, before the issue of the shares, may by
Special Resolution determine.
(b) Subject to the provisions of the Statute and the Memorandum of
Association, the Company may purchase its own shares (including fractions
of a share), including any redeemable shares, provided that the manner of
purchase has first been authorized by the Company in general meeting and
may make payment therefor in any manner authorized by the Statute,
including out of capital.
VARIATION OF RIGHTS OF SHARES
12. If at any time the share capital of the Company is divided into
different classes of shares, the rights attached to any class (unless
otherwise provided by the terms of issue of the shares of that class) may,
whether or not the Company is being wound-up, be varied with the consent in
writing of the holders of three-fourths of the issued shares of that class,
or with the sanction of a special resolution passed at a general meeting of
the holders of the shares of that class.
The provisions of these Articles relating to general meetings
shall apply to every such general meeting of the holders of one class of
shares except that the necessary quorum shall be one (l) person holding or
representing by proxy at least one-third of the issued shares of the class
and that any holder of shares of the class present in person or by proxy
may demand a poll.
13. The rights conferred upon the holders of the shares of any class
issued with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be
varied by the creation or issue of further shares ranking pari passu
therewith.
COMMISSION ON SALE OF SHARES
14. The Company may in so far as the Statute from time to time permits pay
a commission to any person in consideration of his subscribing or agreeing
to subscribe whether absolutely or conditionally for any shares of the
Company. Such commissions may be satisfied by the payment of cash or the
lodgement of fully or partly paid-up shares or partly in one way and partly
in the other. The Company may also on any issue of shares pay such
brokerage as may be lawful.
NON-RECOGNITION OF TRUSTS
15. No person shall be recognized by the Company as holding any share upon
any trust and the Company shall not be bound by or be compelled in any way
to recognize (even when having notice thereof) any equitable, contingent,
future, or partial interest in any share, or any interest in any fractional
part of a share, or (except only as is otherwise provided by these Articles
or the Statute) any other rights in respect of any share except an absolute
right to the entirety thereof in the registered holder.
LIEN ON SHARES
16. The Company shall have a first and paramount lien and charge on all
shares (whether fully paid-up or not) registered in the name of a Member
(whether solely or jointly with others) for all debts, liabilities or
engagements to or with the Company (whether presently payable or not) by
such Member or his estate, either alone or jointly with any other person,
whether a Member or not, but the Directors may at any time declare any
share to be wholly or in part exempt from the provisions of this Article.
The registration of a transfer of any such share shall operate as a waiver
of the Company's lien (if any) thereon. The Company's lien (if any) on a
share shall extend to all dividends or other monies payable in respect
thereof.
17. The Company may sell, in such manner as the Directors think fit, any
shares on which the Company has a lien, but no sale shall be made unless a
sum in respect of which the lien exists is presently payable, nor until the
expiration of fourteen days after a notice in writing stating and demanding
payment of such part of the amount in respect of which the lien exists as
is presently payable, has been given to the registered holder or holders
for the time being of the share, or the person, of which the Company has
notice, entitled thereto by reason of his death or bankruptcy.
18. To give effect to any such sale the Directors may authorize some
person to transfer the shares sold to the purchaser thereof. The purchaser
shall be registered as the holder of the shares comprised in any such
transfer, and he shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
19. The proceeds of such sale shall be received by the Company and applied
in payment of such part of the amount in respect of which the lien exists
as is presently payable and the residue, if any, shall (subject to a like
lien for sums not presently payable as existed upon the shares before the
sale) be paid to the person entitled to the shares at the date of the sale.
CALL ON SHARES
20. (a) The Directors may from time to time make calls upon the Members in
respect of any monies unpaid on their shares (whether on account of the
nominal value of the shares or by way of premium or otherwise) and not by
the conditions of allotment thereof made payable at fixed terms, provided
that no call shall exceed one-fourth of the nominal value of the share or
be payable at less than one month from the date fixed for the payment of
the last preceding call, and each Member shall (subject to receiving at
least fourteen days notice specifying the time or times of payment) pay to
the Company at the time or times so specified the amount called on the
shares. A call may be revoked or postponed as the Directors may determine.
A call may be made payable by installments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorizing such call was passed.
(c) The joint holders of a share shall be jointly and severally liable
to pay all calls in respect thereof.
21. If a sum called in respect of a share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the
time of actual payment at such rate not exceeding ten per cent per annum as
the Directors may determine, but the Directors shall be at liberty to waive
payment of such interest either wholly or in part.
22. Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date, whether on account of the nominal value of
the share or by way of premium or otherwise, shall for the purposes of
these Articles be deemed to be a call duly made, notified and payable on
the date on which by the terms of issue the same becomes payable, and in
the case of non-payment all the relevant provisions of these Articles as to
payment of interest forfeiture or otherwise shall apply as if such sum had
become payable by virtue of a call duly made and notified.
23. The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls or interest to be paid and the times of
payment.
24. (a) The Directors may, if they think fit, receive from any Member
willing to advance the same, all or any part of the monies uncalled and
unpaid upon any shares held by him, and upon all or any of the monies so
advanced may (until the same would but for such advances, become payable)
pay interest at such rate not exceeding (unless the Company in general
meeting shall otherwise direct) seven per cent (7%) per annum, as may be
agreed upon between the Directors and the Member paying such sum in
advance.
(b) No such sum paid in advance of calls shall entitle the Member paying
such sum to any portion of a dividend declared in respect of any period
prior to the date upon which such sum would. but for such payment, become
presently payable
FORFEITURE OF SHARES
25. (a) If a Member fails to pay any call or installment of a call or to
make any payment required by the terms of issue on the day appointed for
payment thereof, the Directors may, at any time thereafter during such time
as any part of the call, installment or payment remains unpaid, give notice
requiring payment of so much of the call, installment or payment as is
unpaid, together with any interest which may have accrued and all expenses
that have been incurred by the Company by reason of such non-payment. Such
notice shall name a day (not earlier than the expiration of fourteen days
from the date of giving of the notice) on or before which the payment
required by the notice is to be made, and shall state that, in the event of
non-payment at or before the time appointed the shares in respect of which
such notice was given will be liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been given may
at any time thereafter, before the payment required by the notice has been
made, be forfeited by a resolution of the Directors to that effect. Such
forfeiture shall include all dividends declared in respect of the forfeited
share and not actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such
terms and in such manner as the Directors think fit and at any time before
a sale or disposition the forfeiture may be cancelled on such terms as the
Directors think fit.
26. A person whose shares have been forfeited shall cease to be a Member
in respect of the forfeited shares, but shall, notwithstanding, remain
liable to pay to the Company all monies which, at the date of forfeiture
were payable by him to the Company in respect of the shares together with
interest thereon, but his liability shall cease if and when the Company
shall have received payment in full of all monies whenever payable in
respect of the shares.
27. A certificate in writing under the hand of one Director or the
Secretary of the Company that a share in the Company has been duly
forfeited on a date stated in the declaration shall be conclusive evidence
of the fact therein stated as against all persons claiming to be entitled
to the share. The Company may receive the consideration given for the share
on any sale or disposition thereof and may execute a transfer of the share
in favor of the person to whom the share is sold or disposed of and he
shall thereupon be registered as the holder of the share and shall not be
bound to see to the application of the purchase money, if any, nor shall
his title to the share be affected by any irregularity or invalidity in the
proceedings in reference to the forfeiture, sale or disposal of the share.
28. The provisions of these Articles as to forfeiture shall apply in the
case of non-payment of any sum which, by the terms of issue of a share,
becomes payable at a fixed time, whether on account of the nominal value of
the share or by way of premium as if the same had been payable by virtue of
a call duly made and notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
29. The Company shall be entitled to charge a fee not exceeding one dollar
(US$1.00) on the registration of every probate, letters of administration,
certificate of death or marriage, power of attorney, notice in lieu of
distringas, or other instrument.
TRANSMISSION OF SHARES
30. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognized
by the Company as having any title to his interest in the shares, but
nothing herein contained shall release the estate of any such deceased
holder from any liability in respect of any shares which had been held by
him solely or jointly with other persons.
31. (a) Any person becoming entitled to a share in consequence of the
death or bankruptcy or liquidation or dissolution of a Member (or in any
other way than by transfer) may, upon such evidence being produced as may
from time to time be required by the Directors and subject as hereinafter
provided, elect either to be registered himself as holder of the share or
to make such transfer of the share to such other person nominated by him as
the deceased or bankrupt person could have made and to have such person
registered as the transferee thereof, but the Directors shall, in either
case, have the same right to decline or suspend registration as they would
have had in the case of a transfer of the share by that Member before his
death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in
writing signed by him stating that he so elects.
32. A person becoming entitled to a share by reason of the death or
bankruptcy or liquidation or dissolution of the holder (or in any other
case than by transfer) shall be entitled to the same dividends and other
advantages to which he would be entitled if he were the registered holder
of the share, except that he shall not, before being registered as a Member
in respect of the share, be entitled in respect of it to exercise any right
conferred by membership in relation to meetings of the Company PROVIDED
HOWEVER that the Directors may at any time give notice requiring any such
person to elect either to be registered himself or to transfer the share
and if the notice is not complied with within ninety days the Directors may
thereafter withhold payment of all dividends, bonuses or other monies
payable in respect of me share until the requirements of me notice have
been complied with
AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF LOCATION OF REGISTERED
OFFICE & ALTERATION OF CAPITAL
33. (a) Subject to and in so far as permitted by the provisions of the
Statute, the Company may from time to time by ordinary resolution alter or
amend its Memorandum of Association otherwise than with respect to its name
and objects and may, without restricting the generality of the foregoing:
( i) increase the share capital by such sum to be divided into shares of
such amount or without nominal or par value as the resolution shall
prescribe and with such rights, priorities and privileges annexed
thereto, as the Company in general meeting may determine.
( ii) consolidate and divide all or any of its share capital into shares of
larger amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide the whole
or any part of its share capital into shares of smaller amount than
is fixed by the Memorandum of Association or into shares without
nominal or par value;
( iv) cancel any shares which at the date of the passing of the resolution
have not been taken or agreed to be taken by any person.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
(c) Subject to the provisions of the Statute the Company may by
special resolution change its name or alter its objects.
(d) Without prejudice to Article 11 hereof and subject to the
provisions of the Statute the Company may by Special Resolution reduce its
share capital and any capital redemption reserve fund.
(e) Subject to the provisions of the Statute the Company may by
resolution of the Directors change the location of its registered office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
34. For the purpose of determining Members entitled to notice of or to
vote at any meeting of Members or any adjournment thereof, or Members
entitled to receive payment of any dividend, or in order to make a
determination of Members for any other proper purpose, the Directors of the
Company may provide that the register of Members shall be closed for
transfers for a stated period but not to exceed in any case forty (40)
days. If the register of Members shall be so closed for the purpose of
determining Members entitled to notice of or to vote at a meeting of
Members such register shall be so closed for at least ten (10) days
immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the register of Members.
35. In lieu of or apart from closing the register of Members, the
Directors may fix in advance a date as the record date for any such
determination of Members entitled to notice of or to vote at a meeting of
the Members and for the purpose of determining the Members entitled to
receive payment of any dividend the Directors may, at or within 90 days
prior to the date of declaration of such dividend fix a subsequent date as
the record date for such determination.
36. If the register of Members is not so closed and no record date is
fixed for the determination of Members entitled to notice of or to vote at
a meeting of Members or Members entitled to receive payment of a dividend,
the date on which notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of Members has
been made as provided in this section, such determination shall apply to
any adjournment thereof.
GENERAL MEETING
37. (a) Subject to paragraph (c) hereof, the Company shall within one year
of its incorporation and in each year of its existence thereafter hold a
general meeting as its annual general meeting and shall specify the meeting
as such in the notices calling it. The annual general meeting shall be held
at such time and place as the Directors shall appoint and if no other time
and place is prescribed by them, it shall be held at the registered office
on the second Wednesday in December of each year at ten o'clock in the
morning.
(b) At these meetings the report of the Directors (if any) shall be
presented.
(c) If the Company is exempted as defined in the Statute it may but
shall not be obliged to hold an annual general meeting.
38. (a) The Directors may whenever they think fit, and they shall on the
requisition of Members of the Company holding at the date of the deposit of
the requisition not less than one-tenth of such of the paid-up capital of
the Company as at the date of the deposit carries the right of voting at
general meetings of the Company, proceed to convene a general meeting of me
Company.
(b) The requisition must state me objects of me meeting and must be
signed by me requisitionists and deposited at the Registered Office of the
Company and may consist of several documents in like form each signed by
one or more requisitionists.
(c) If the Directors do not within twenty-one days from the date of
the deposit of the requisition duly proceed to convene a general meeting,
the requisitionists, or any of them representing more than one-half of the
total voting rights of all of them, may themselves convene a general
meeting, but any meeting so convened shall not be held after the expiration
of three months after the expiration of the said twenty-one days.
(d) A general meeting convened as aforesaid by requisitionists shall
be convened in the same manner as nearly as possible as that in which
general meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
39. At least five days' notice shall be given of an annual general meeting
or any other general meeting. Every notice shall be exclusive of the day on
which it is given or deemed to be given and of the day for which it is
given and shall specify the place, the day and the hour of the meeting and
the general nature of the business and shall be given in manner hereinafter
mentioned or in such other manner if any as may be prescribed by the
Company PROVIDED that a general meeting of the Company shall, whether or
not the notice specified in this regulation has been given and whether or
not the provisions of Article 38 have been complied with, be deemed to have
been duly convened if it is so agreed:
(a)in the case of a general meeting called as an annual general
meeting by all the Members entitled to attend and vote thereat or
their proxies; and
(b)in the case of any other general meeting by a majority in number of
the Members having a right to attend and vote at the meeting, being
a majority together holding not less than seventy-five per cent (75
%) in nominal value or in the case of shares without nominal or par
value seventy-five per cent (75%) of the shares in issue, or their
proxies.
40. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person entitled to receive notice
shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
41. No business shall be transacted at any general meeting unless a quorum
of Members is present at the time when the meeting proceeds to business;
two (2) Members present in person or by proxy shall be a quorum provided
always that if the Company has one shareholder of record the quorum shall
be that one (l) Member present in person or by proxy.
42. A resolution (including a Special Resolution) in writing (in one or
more counterparts) signed by all Members for the time being entitled to
receive notice of and to attend and vote at general meetings (or being
corporations by their duly authorized representatives) shall be as valid
and effective as if the same had been passed at a general meeting of the
Company duly convened and held.
43. If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting, if convened upon the requisition of
Members, shall be dissolved and in any other case it shall stand adjourned
to the same day in the next week at the same time and place or to such
other time or such other place as the directors may determine and if at the
adjourned meeting a quorum is not present within half an hour from the time
appointed for the meeting the Members present shall be a quorum.
44. The Chairman, if any, of the Board of Directors shall preside as
Chairman at every general meeting of the Company, or if there is no such
Chairman, or if he shall not be present within fifteen minutes after the
time appointed for the holding of the meeting, or is unwilling to act, the
Directors present shall elect one of their number to be Chairman of the
meeting.
45. If at any general meeting no Director is willing to act as Chairman or
if no Director is present within fifteen minutes after the time appointed
for holding the meeting, the Members present shall choose one of their
number to be Chairman of the meeting.
46. The Chairman may, with the consent of any general meeting duly
constituted hereunder, and shall if so directed by the meeting, adjourn the
meeting from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished
at the meeting from which the adjournment took place. When a general
meeting is adjourned for thirty days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting; save as
aforesaid it shall not be necessary to give any notice of an adjournment or
of the business to be transacted at an adjourned general meeting.
47. At any general meeting a resolution put to the vote of the meeting
shall be decided on a show of hands unless a poll is, before or on the
declaration of the result of the show of hands, demanded by the Chairman or
any other Member present in person or by proxy.
48. Unless a poll be so demanded a declaration by the Chairman that a
resolution has on a show of hands been carried, or carried unanimously, or
by a particular majority, or lost, and an entry to that effect in the
Company's Minute Book containing the Minutes of the proceedings of the
meeting shall be conclusive evidence of that fact without proof of the
number or proportion of the votes recorded in favor of or against such
resolution.
49. The demand for a poll may be withdrawn.
50. Except as provided in Article 52, if a poll is duly demanded it shall
be taken in such manner as the Chairman directs and the result of the poll
shall be deemed to be the resolution of the general meeting at which the
poll was demanded.
51. In the case of an equality of votes, whether on a show of hands or on
a poll, the Chairman of the general meeting at which the show of hands
takes place or at which the poll is demanded, shall be entitled to a second
or casting vote.
52. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs
and any business other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of the poll.
VOTES OF MEMBERS
53. Subject to any rights or restrictions for the time being attached to
any class or classes of shares, on a show of hands every Member of record
present in person or by proxy at a general meeting shall have one vote and
on a poll every Member of record present in person or by proxy shall have
one vote for each share registered in his name in the register.
54. In the case of joint holders of record the vote of the senior who
tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
register of Members.
55. A Member of unsound mind, or in respect of whom an order has been made
by any court, having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, receiver, curator bonis, or other
person in the nature of a committee, receiver or curator bonis appointed by
that court, and any such committee, receiver, curator bonis or other
persons may vote by proxy.
56. No Member shall be entitled to vote at any general meeting unless he
is registered as a shareholder of the Company on the record date for such
meeting nor unless all calls or other sums presently payable by him in
respect of shares in the Company have been paid.
57. No objection shall be raised to the qualification of any voter except
at the general meeting or adjourned general meeting at which the vote
objected to is given or tendered and every vote not disallowed at such
general meeting shall be valid for all purposes. Any such objection made in
due time shall be referred to the Chairman of the general meeting whose
decision shall be final and conclusive.
58. On a poll or on a show of hands votes may be given either personally
or by proxy.
PROXIES
59. The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointor or of his attorney duly authorized
in writing, or, if the appointor is a corporation under the hand of an
officer or attorney duly authorized in that behalf. A proxy need not be a
Member of the Company.
60. The instrument appointing a proxy shall be deposited at the registered
office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for
holding the meeting, or adjourned meeting provided that the Chairman of the
Meeting may at his discretion direct that an instrument of proxy shall be
deemed to have been duly deposited upon receipt of telex, cable or telecopy
confirmation from the appointor that the instrument of proxy duly signed is
in the course of transmission to the Company.
61. The instrument appointing a proxy may be in any usual or common form
and may be expressed to be for a particular meeting or any adjournment
thereof or generally until revoked. An instrument appointing a proxy shall
be deemed to include the power to demand or join or concur in demanding a
poll.
62. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which the
proxy was executed, or the transfer of the share in respect of which the
proxy is given provided that no intimation in writing of such death,
insanity, revocation or transfer as aforesaid shall have been received by
the Company at the registered office before the commencement of the general
meeting, or adjourned meeting at which it is sought to use the proxy.
63. Any corporation which is a Member of record of the Company may in
accordance with its Articles or in the absence of such provision by
resolution of its Directors or other governing body authorize such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of Members of the Company, and the person so authorized
shall be entitled to exercise the same powers on behalf of the corporation
which he represents as the corporation could exercise if it were an
individual Member of record of the Company.
64. Shares of its own stock belonging to the Company or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any
meeting and shall not be counted in determining the total number of
outstanding shares at any given time.
DIRECTORS
65. There shall be a Board of Directors consisting of not less than one or
more than ten persons (exclusive of Alternate Directors) PROVIDED HOWEVER
that the Company may from time to time by ordinary resolution increase or
reduce the limits in the number of Directors. The first Directors of the
Company shall be determined in writing by, or appointed by a resolution of,
the subscribers of the Memorandum of Association or a majority of them.
66. The remuneration to be paid to the Directors shall be such
remuneration as the Directors shall determine. Such remuneration shall be
deemed to accrue from day to day. The Directors shall also be entitled to
be paid their traveling, hotel and other expenses properly incurred by them
in going to, attending and returning from meetings of the Directors, or any
committee of the Directors, or general meetings of the Company, or
otherwise in connection with the business of the Company, or to receive a
fixed allowance in respect thereof as may be determined by the Directors
from time to time, or a combination partly of one such method and partly
the other.
67. The Directors may by resolution award special remuneration to any
Director of the Company undertaking any special work or services for, or
undertaking any special mission on behalf of, the Company other than his
ordinary routine work as a Director. Any fees paid to a Director who is
also counsel or solicitor to the Company, or otherwise serves it in a
professional capacity shall be in addition to his remuneration as a
Director.
68. A Director or alternate Director may hold any other office or place of
profit under the Company (other than the office of Auditor) in conjunction
with his office of Director for such period and on such terms as to
remuneration and otherwise as the Directors may determine.
69. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be entitled
to remuneration for professional services as if he were not a Director or
alternate Director.
70. A shareholding qualification for Directors may be fixed by the Company
in general meeting, but unless and until so fixed no qualification shall be
required.
71. A Director or alternate Director of the Company may be or become a
Director or other Officer of or otherwise interested in any company
promoted by the Company or in which the Company may be interested as
shareholder or otherwise and no such Director or alternate Director shall
be accountable to me Company for any remuneration or other benefits
received by him as a Director or Officer of, or from his interest in, such
other company.
72. No person shall be disqualified from the office of Director or
alternate Director or prevented by such office from contracting with the
Company, either as vendor, purchaser or otherwise, nor shall any such
contract or any contract or transaction entered into by or on behalf of the
Company in which any Director or alternate Director shall be in any way
interested be or be liable to be avoided, nor shall any Director or
alternate Director so contracting or being so interested be liable to
account to the Company for any profit realized by any such contract or
transaction by reason of such Director holding office or of the fiduciary
relation thereby established. A Director (or his alternate Director in his
absence) shall be at liberty to vote in respect of any contract or
transaction in which he is so interested as aforesaid PROVIDED HOWEVER that
the nature of the interest of any Director or alternate Director in any
such contract or transaction shall be disclosed by him or the alternate
Director appointed by him at or prior to its consideration and any vote
thereon.
73. A general notice that a Director or alternate Director is a
shareholder of any specified firm or company and is to be regarded as
interested in any transaction with such firm or company shall be sufficient
disclosure under Article 72 and after such general notice it shall not be
necessary to give special notice relating to any particular transaction.
ALTERNATE DIRECTORS
74. Subject to the exception contained in Article 82, a Director who
expects to be unable to attend Directors' Meetings because of absence,
illness or otherwise may appoint any person to be an alternate Director to
act in his stead and such appointee whilst he holds office as an alternate
Director shall, in the event of absence therefrom of his appointor, be
entitled to attend meetings of the Directors and to vote thereat and to do,
in the place and stead of his appointor, any other act or thing which his
appointor is permitted or required to do by virtue of his being a Director
as if the alternate Director were the appointor, other than appointment of
an alternate to himself, and he shall ipso facto vacate office if and when
his appointor ceases to be a Director or removes the appointee from office.
Any appointment or removal under this Article shall be effected by notice
in writing under the hand of the Director making the same.
POWERS AND DUTIES OF DIRECTORS
75. The business of the Company shall be managed by the Directors (or a
sole Director if only one is appointed) who may pay all expenses incurred
in promoting, registering and setting up the Company, and may exercise all
such powers of the Company as are not, from time to time by the Statute, or
by these Articles, or such regulations, being not inconsistent with the
aforesaid, as may be prescribed by the Company in general meeting required
to be exercised by the Company in general meeting PROVIDED HOWEVER that no
regulators made by me Company in general meeting shall invalidate any prior
act of the Directors which would have been valid if mat regulation had not
been made.
76. The Directors may from time to time and at any time by powers of
attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney or
attorneys of the Company for such purpose and with such powers, authorities
and discretions (not exceeding those vested in or exercisable by the
Directors under these Articles) and for such period and subject to such
conditions as they may think fit, and any such powers of attorney may
contain such provisions for the protection and convenience of persons
dealing with any such attorneys as the Directors may think fit and may also
authorize any such attorney to delegate all or any of the powers,
authorities and discretions vested in him.
77. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed as the
case may be in such manner as the Directors shall from time to time by
resolution determine.
78. The Directors shall cause minutes to be made in books provided for
the purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented thereat
by an alternate or by proxy) present at each meeting of the
Directors and of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the Company
and of the Directors and of committees of Directors.
79. The Directors on behalf of the Company may pay a gratuity or pension
or allowance on retirement to any Director who has held any other salaried
office or place of profit with the Company or to his widow or dependents
and may make contributions to any fund and pay premiums for the purchase or
provision of any such gratuity, pension or allowance.
80. The Directors may exercise all the powers of the Company to borrow
money and to mortgage or charge its undertaking, property and uncalled
capital or any part thereof and to issue debentures, debenture stock and
other securities whether outright or as security for any debt, liability or
obligation of the Company or of any third party.
MANAGEMENT
81. (a) The Directors may from time to time provide for the management of
the affairs of the Company in such manner as they shall think fit and the
provisions contained in the three next following paragraphs shall be
without prejudice to the general powers conferred by this paragraph.
(b) The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs of the
Company and may appoint any persons to be members of such committees or
local boards or any managers or agents and may fix their remuneration.
(c) The Directors from time to time and at any time may delegate to
any such committee, local board, manager or agent any of the powers,
authorities and discretions for the time being vested in the Directors and
may authorize the members for the time being of any such local board, or
any of them to fill up any vacancies therein and to act notwithstanding
vacancies and any such appointment or delegation may be made on such terms
and subject to such conditions as the Directors may think fit and the
Directors may at any time remove any person so appointed and may annul or
vary any such delegation, but no person dealing in good faith and without
notice of any such annulment or variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorized by the Directors
to subdelegate all or any of the powers, authorities, and discretions for
the time being vested in them.
MANAGING DIRECTORS
82. The Directors may, from time to time, appoint one or more of their
body (but not an alternate Director) to the office of Managing Director for
such term and at such remuneration (whether by way of salary, or
commission, or participation in profits, or partly in one way and partly in
another) as they may think fit but his appointment shall be subject to
determination ipso facto if he ceases from any cause to be a Director and
no alternate Director appointed by him can act in his stead as a Director
or Managing Director.
83. The Directors may entrust to and confer upon a Managing Director any
of the powers exercisable by them upon such terms and conditions and with
such restrictions as they may think fit and either collaterally with or to
the exclusion of their own powers and may from time to time revoke,
withdraw, alter or vary all or any of such powers.
PROCEEDINGS OF DIRECTORS
84. Except as otherwise provided by these Articles, the Directors shall
meet together for the despatch of business, convening, adjourning and
otherwise regulating their meetings as they think fit. Questions arising at
any meeting shall be decided by a majority of votes of the Directors and
alternate Directors present at a meeting at which there is a quorum, the
vote of an alternate Director not being counted if his appointor be present
at such meeting. In case of an equality of votes, the Chairman shall have a
second or casting vote.
85. A Director or alternate Director may, and the Secretary on the
requisition of a Director or alternate Director shall, at any time summon a
meeting of the Directors by at least two days' notice in writing to every
Director and alternate Director which notice shall set forth the general
nature of the business to be considered unless notice is waived by all the
Directors (or their alternates) either at, before or after the meeting is
held and PROVIDED FURTHER if notice is given in person, by cable, telex or
telecopy the same shall be deemed to have been given on the day it is
delivered to the Directors or transmitting organization as the case may be.
The provisions of Article 40 shall apply mutatis mutandis with respect to
notices of meetings of Directors.
86. The quorum necessary for the transaction of the business of the
Directors may be fixed by the Directors and unless so fixed shall be two, a
Director and his appointed alternate Director being considered only one
person for this purpose, PROVIDED ALWAYS that if there shall at any time be
only a sole Director the quorum shall be one. For the purposes of this
Article an alternate Director or proxy appointed by a Director shall be
counted in a quorum at a meeting at which the Director appointing him is
not present.
87. The continuing Directors may act notwithstanding any vacancy in their
body, but if and so long as their number is reduced below the number fixed
by or pursuant to these Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the
number of Directors to that number, or of summoning a general meeting of
the Company, but for no other purpose.
88. The Directors may elect a Chairman of their Board and determine the
period for which he is to hold office; but if no such Chairman is elected,
or if at any meeting the Chairman is not present within five minutes after
the time appointed for holding the same, the Directors present may choose
one of their number to be Chairman of the meeting.
.
89. The Directors may delegate any of their powers to committees
consisting of such member or members of the Board of Directors (including
Alternate Directors in the absence of their appointors) as they think fit;
any committee so formed shall in the exercise of the powers so delegated
conform to any regulations that may be imposed on it by the Directors.
90. A committee may meet and adjourn as it thinks proper. Questions
arising at any meeting shall be determined by a majority of votes of the
members present, and in the case of an equality of votes the Chairman shall
have a second or casting vote.
91. All acts done by any meeting of the Directors or of a committee of
Directors (including any person acting as an alternate Director) shall,
notwithstanding that it be afterwards discovered that there was some defect
in the appointment of any Director or alternate Director, or that they or
any of them were disqualified, be as valid as if every such person had been
duly appointed and qualified to be a Director or alternate Director as the
case may be.
92. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. A resolution in writing (in one or more
counterparts), signed by all the Directors for the time being or all the
members of a committee of Directors (an alternate Director being entitled
to sign such resolution on behalf of his appointor) shall be as valid and
effectual as if it had been passed at a meeting of the Directors or
committee as the case may be duly convened and held.
93. (a) A Director may be represented at any meetings of the Board of
Directors by a proxy appointed by him in which event the presence or vote
of the proxy shall for all purposes be deemed to be that of the Director.
(b) The provisions of Articles 59-62 shall mutatis mutandis apply to
the appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
94. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns the
office of Director;
(b) if he absents himself (without being represented by proxy or an
alternate Director appointed by him) from three consecutive
meetings of the Board of Directors without special leave of
absence from the Directors, and they pass a resolution that he
has by reason of such absence vacated office;
(c) if he dies, becomes bankrupt or makes any arrangement or
composition with his creditors generally;
(d) if he is found a lunatic or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
95. The Company may by ordinary resolution appoint any person to be a
Director and may in like manner remove any Director and may in like manner
appoint another person in his stead.
96. The Directors shall have power at any time and from time to time to
appoint any person to be a Director, either to fill a casual vacancy or as
an addition to the existing Directors but so that the total amount of
Directors (exclusive of alternate Directors) shall not at any time exceed
me number fixed in accordance with these Articles.
PRESUMPTION OF ASSENT
97. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be presumed
to have assented to the action taken unless his dissent shall be entered in
the Minutes of the meeting or unless he shall file his written dissent from
such action with the person acting as the Secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to
such person immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favor of such action.
SEAL
98. The Seal shall only be used by the authority of the Directors or of a
committee of the Directors authorized by the Directors in that behalf and
every instrument to which the Seal has been affixed shall be signed by one
person who shall be either a Director or the Secretary or
Secretary-Treasurer or some person appointed by the Directors for the
purpose.
PROVIDED THAT the Company may have for use in any place or places outside
the Cayman Islands, a duplicate seal or seals each of which shall be a
facsimile of the Common Seal of the Company and, if the Directors so
determine, with the addition on its face of the name of every place where
it is to be used.
PROVIDED FURTHER THAT a Director, Secretary or other officer or
representative or attorney may without further authority of the Directors
affix the Seal of the Company over his signature alone to any document of
the Company required to be authenticated by him under Seal or to be filed
with the Registrar of Companies in the Cayman Islands or elsewhere
wheresoever.
OFFICERS
99. The Company may have a President, a Secretary or Secretary-Treasurer
appointed by the Directors who may also from time to time appoint such
other officers as they consider necessary, all for such terms, at such
remuneration and to perform such duties, and subject to such provisions as
to disqualification and removal as the Directors from time to time
prescribe.
DIVIDENDS DISTRIBUTlONS AND RESERVE
100. Subject to the Statute, the Directors may from time to time declare
dividends (including interim dividends) and distributions on shares of the
Company outstanding and authorize payment of the same out of the funds of
the Company lawfully available therefor.
101. The Directors may, before declaring any dividends or distributions,
set aside such sums as they think proper as a reserve or reserves which
shall at the discretion of the Directors, be applicable for any purpose of
the Company and pending such application may, at the like discretion, be
employed in the business of the Company.
102. No dividend or distribution shall be payable except out of the profits
of the Company, realized or unrealized, or out of the share premium account
or as otherwise permitted by the Statute.
103. Subject to the rights of persons, if any, entitled to shares with
special rights as to dividends or distributions, if dividends or
distributions are to be declared on a class of shares they shall be
declared and paid according to the amounts paid or credited as paid on the
shares of such class outstanding on the record date for such dividend or
distribution as determined in accordance with these Articles but no amount
paid or credited as paid on a share in advance of calls shall be treated
for the purpose of this Article as paid on the share.
104. The Directors may deduct from any dividend or distribution payable to
any Member all sums of money (if any) presently payable by him to the
Company on account of calls or otherwise.
105. The Directors may declare that any dividend or distribution be paid
wholly or partly by the distribution of specific assets and in particular
of paid up shares, debentures, or debenture stock of any other company or
in any one or more of such ways and where any difficulty arises in regard
to such distribution, the Directors may settle the same as they think
expedient and in particular may issue fractional certificates and fix the
value for distribution of such specific assets or any part thereof and may
determine that cash payments shall be made to any Members upon the footing
of the value so fixed in order to adjust the rights of all Members and may
vest any such specific assets in trustees as may seem expedient to the
Directors.
106. Any dividend, distribution, interest or other monies payable in cash
in respect of shares may be paid by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of Members or to
such person and to such address as such holder or joint holders may in
writing direct. Every such cheque or warrant shall be made payable to the
order of the person to whom it is sent. Any one of two or more joint
holders may give effectual receipts for any dividends, bonuses, or other
monies payable in respect of the share held by them as joint holders.
107. No dividend or distribution shall bear interest against the Company.
CAPITALIZATION
108. The Company may upon the recommendation of the Directors by ordinary
resolution authorize the Directors to capitalize any sum standing to the
credit of any of the Company's reserve accounts (including share premium
account and capital redemption reserve fund) or any sum standing to the
credit of profit and loss account or otherwise available for distribution
and to appropriate such sum to Members in the proportions in which such sum
would have been divisible amongst them had the same been a distribution of
profits by way of dividend and to apply such sum on their behalf in paying
up in full unissued shares for allotment and distribution credited as fully
paid up to and amongst them in the proportion aforesaid. In such event the
Directors shall do all acts and things required to give effect to such
capitalization, with full power to the Directors to make such provisions as
they think fit for the case of shares becoming distributable in fractions
(including provisions whereby the benefit of fractional entitlements accrue
to the Company rather than to the Members concerned). The Directors may
authorize any person to enter on behalf of all of the Members interested
into an agreement with the Company providing for such capitalization and
matters incidental thereto and any agreement made under such authority
shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
109. The Directors shall cause proper books of account to be kept with
respect to:
(a) all sums of money received and expended by the Company and the
matters in respect of which the receipt or expenditure takes
place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such
books of account as are necessary to give a true and fair view of the state
of the Company's affairs and to explain its transactions.
110. The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall be
open to the inspection of Members not being Directors and no Member (not
being a Director) shall have any right of inspecting any account or book or
document of the Company except as conferred by Statute or authorized by the
Directors or by me Company in general meeting.
111. The Directors may from time to time cause to be prepared and to be
laid before the Company in general meeting profit and loss accounts,
balance sheets, group accounts (if any) and such other reports and accounts
as may be required by law.
AUDIT
112. The Company may at any annual general meeting appoint an Auditor or
Auditors of the Company who shall hold office until the next annual general
meeting and may fix his or their remuneration.
113. The Directors may before the first annual general meeting appoint an
Auditor or Auditors of the Company who shall hold office until the first
annual general meeting unless previously removed by an ordinary resolution
of the Members in general meeting in which case the Members at that meeting
may appoint Auditors. The Directors may fill any casual vacancy in the
office of Auditor but while any such vacancy continues the surviving or
continuing Auditor or Auditors, if any, may act. The remuneration of any
Auditor appointed by the Directors under this Article may be fixed by the
Directors.
114. Every Auditor of the Company shall have a right of access at all times
to the books and accounts and vouchers of the Company and shall be entitled
to require from the Directors and Officers of the Company such information
and explanation as may be necessary for the performance of the duties of
the auditors.
115. Auditors shall at the next annual general meeting following their
appointment and at any other time during their term of office, upon request
of the Directors or any general meeting of the Members, make a report on
the accounts of the Company in general meeting during their tenure of
office.
NOTICES
116. Notices shall be in writing and may be given by the Company to any
Member either personally or by sending it by post, cable, telex or telecopy
to him or to his address as shown in the register of Members, such notice,
if mailed, to be forwarded airmail if the address be outside the Cayman
Islands.
117. (a) Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, pre-paying and posting a
letter containing the notice, and to have been effected at the expiration
of sixty hours after the letter containing the same is posted as aforesaid.
(b) Where a notice is sent by cable, telex, or telecopy, service of
the notice shall be deemed to be effected by properly addressing, and
sending such notice through a transmitting
25 organization and to have been effected on the day the same is sent as
aforesaid.
118. A notice may be given by the Company to the joint holders of record of
a share by giving the notice to the joint holder first named on the
register of Members in respect of the share.
119. A notice may be given by the Company to the person or persons which
the Company has been advised are entitled to a share or shares in
consequence of the death or bankruptcy of a Member by sending it through
the post as aforesaid in a pre-paid letter addressed to them by name, or by
the title of representatives of the deceased, or trustee of the bankrupt,
or by any like description at the address supplied for that purpose by the
persons claiming to be so entitled, or at the option of the Company by
giving the notice in any manner in which the same might have been given if
the death or bankruptcy had not occurred.
120. Notice of every general meeting shall be given in any manner
hereinbefore authorized to:
(a) every person shown as a Member in the register of Members as of
the record date for such meeting except that in the case of joint
holders the notice shall be sufficient if given to the joint
holder first named in the register of Members.
(b) every person upon whom the ownership of a share devolves by reason
of his being a legal personal representative or a trustee in
bankruptcy of a Member of record where the Member of record but
for his death or bankruptcy would be entitled to receive notice of
the meeting; and
No other person shall be entitled to receive notices of general meetings.
WINDING UP
121. If the Company shall be wound up the liquidator may, with the sanction
of a Special Resolution of the Company and any other sanction required by
the Statute, divide amongst the Members in specie or kind the whole or any
part of the assets of the Company (whether they shall consist of property
of the same kind or not) and may for such purpose set such value as he
deems fair upon any property to be divided as aforesaid and may determine
how such division shall be carried out as between the Members or different
classes of Members. The liquidator may with the like sanction, vest the
whole or any part of such assets in trustees upon such trusts for the
benefit of the contributories as the liquidator, with the like sanction,
shall think fit, but so that no Member shall be compelled to accept any
shares or other securities whereon there is any liability.
122. If the Company shall be wound up, and the assets available for
distribution amongst the Members as such shall be insufficient to repay the
whole of the paid-up capital, such assets shall be distributed so that, as
nearly as may be, the losses shall be borne by the Members in proportion to
the capital paid up, or which ought to have been paid up, at the
commencement of the winding up on the shares held by them respectively. And
if in a winding up the assets available for distribution amongst the
Members shall be more than sufficient to repay the whole of the capital
paid up at the commencement of the winding up, the excess shall be
distributed amongst the Members in proportion to the capital paid up at the
commencement of the winding up on the shares held by them respectively.
This Article is to be without prejudice to the rights of the holders of
shares issued upon special terms and conditions.
INDEMNITY
123. The Directors and officers for the time being of the Company and any
trustee for the time being acting in relation to any of the affairs of the
Company and their heirs, executors, administrators and personal
representatives respectively shall be indemnified out of the assets of the
Company from and against all actions, proceedings, costs, charges, losses,
damages and expenses which they or any of them shall or may incur or
sustain by reason of any act done or omitted in or about the execution of
their duty in their respective offices or trusts, except such (if any) as
they shall incur or sustain by or through their own willful neglect or
default respectively and no such Director, officer or trustee shall be
answerable for the acts, receipts, neglects or defaults of any other
Director, officer or trustee or for joining in any receipt for the sake of
conformity or for the solvency or honesty of any banker or other persons
with whom any monies or effects belonging to the Company may be lodged or
deposited for safe custody or for any insufficiency of any security upon
which any monies of the Company may be invested or for any other loss or
damage due to any such cause as aforesaid or which may happen in or about
the execution of his office or trust unless the same shall happen through
the willful neglect or default of such Director, Officer or trustee.
FINANCIAL YEAR
124. Unless the Directors otherwise prescribe, the financial year of the
Company shall end on 31st December in each year and, following the year of
incorporation, shall begin on 1st January in each year.
AMENDMENTS OF ARTICLES
125. Subject to the Statute, the Company may at any time and from time to
time by Special Resolution alter or amend these Articles in whole or in
part.
TRANSFER BY WAY OF CONTINUATION
126. If the Company is exempted as defined in the Statute, it shall,
subject to the provisions of the Statute and with the approval of a Special
Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands and
to be deregistered in the Cayman Islands.
DATED the 21st day of April, 1994.
/S/ A. B. Travers
A. B. Travers, Attorney-at-Law
PO Box 309
Grand Cayman, B.W.I.
/S/Sharon Pierson
Sharon Pierson, Attorney-at-Law
PO Box 309
Grand Cayman, B.W.I.
/s/
Witness to the above signatures
PO Box 309
Grand Cayman, IB.W.I.
I, CINDY Y. JEFFERSON, Dep. Registrar of Companies in and for the Cayman
Islands DO HEREBY CERTIFY that this is a true and correct copy of the
Articles of Association of this Company duly incorporated on the 21 day of
April 1994.
/s/ C. Jefferson
Dep. REGISTRAR OF COMPANIES
ABT/62498
Exhibit B-24(b)
THE COMPANIES LAW (REVISED)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
ENTERGY POWER ASIA, LTD.
REGISTERED AND FILED
AS NO. 53694 THIS 21ST DAY
OF APRIL, 1994
/s/C. Jefferson
Dep. Registrar of Companies
Cayman Islands
1. The name of the Company is Entergy Power Asia, Ltd.
2. The Registered Office of the Company shall be at the offices of
Maples and Calder, P.O. Box 309, Grand Cayman, Cayman Islands, British West
Indies or at such other place as the Directors may from time to time
decide.
3. The objects for which the Company is established are unrestricted
and shall include, but without limitation, the following:
( i) (a) To carry on the business of an investment company and to act as
promoters and entrepreneurs and to carry on business as financiers,
capitalists, concessionaires, merchants, brokers, traders, dealers, agents,
importers and exporters and to undertake and carry on and execute all kinds
of investment, financial, commercial, mercantile, trading and other
operations.
(b) To carry on whether as principals, agents or otherwise howsoever
the business of realtors, developers, consultants, estate agents or
managers, builders, contractors, engineers, manufacturers, dealers in or
vendors of all types of property including services.
( ii) To exercise and enforce all rights and powers conferred by or
incidental to the ownership of any shares, stock, obligations or other
securities including with prejudice to the generality of the foregoing all
such powers of veto or control as may be conferred by virtue of the holding
by the Company of some special proportion of the issued or nominal amount
thereof, to provide managerial and other executive, supervisory and
consultant services for or in relation to any company in which the Company
is interested upon such terms as may be thought fit.
(iii) To purchase or otherwise acquire, to sell, exchange, surrender,
lease, mortgage, charge, convert, turn to account, dispose of and deal with
real and personal property and rights of all kinds and, in particular,
mortgages, debentures, produce, concessions, options, contracts, patents,
annuities, licenses, stocks, shares, bonds, policies, book debts, business
concerns, undertakings, claims, privileges and choices in action of all
kinds.
( iv) To subscribe for, conditionally or unconditionally, to
underwrite, issue on commission or otherwise, take, hold, deal in and
convert stocks, shares and securities of all kinds and to enter into
partnership or into any arrangement for sharing profits, reciprocal
concessions or cooperation with any person or company and to promote and
aid in promoting, to constitute, form or organize any company, syndicate or
partnership of any kind, for the purpose of acquiring and undertaking any
property and liabilities of the Company or of advancing, directly or
indirectly, the objects of the Company or for any other purpose which the
Company may think expedient.
( v) To stand surety for or to guarantee, support or secure the
performance of all or any of the obligations of any person, firm or company
whether or not related or affiliated to the Company in any manner and
whether by personal covenant or by mortgage, charge or lien upon the whole
or any part of the undertaking, property and assets of the Company, both
present and future, including its uncalled capital or by any such method
and whether or not the Company shall receive valuable consideration
therefor.
( vi) To engage in or carry on any other lawful trade, business or
enterprise which may at any time appear to the Directors of the Company
capable of being conveniently carried on in conjunction with any of the
aforementioned businesses or activities or which may appear to the
Directors or the Company likely to be profitable to the Company.
In the interpretation of this Memorandum of Association in general and of
this Clause 3 in particular no object, business or power specified or
mentioned shall be limited or restricted by reference to or inference from
any other object, business or power, or the name of the Company, or by the
juxtaposition of two or more objects, businesses or powers and that, in the
event of any ambiguity in this clause or elsewhere in this Memorandum of
Association, the same shall be resolved by such interpretation and
construction as will widen and enlarge and not restrict the objects,
businesses and powers of and exercisable by the Company.
4. Except as prohibited or limited by the Companies Law (Revised),
the Company shall have full power and authority to carry out any object and
shall have and be capable of from time to time and at all times exercising
any and all of the powers at any time or from time to time exercisable by
a natural person or body corporate in doing in any part of the world
whether as principal, agent, contractor or otherwise whatever may be
considered by it necessary for the attainment of its objects and whatever
else may be considered by it as incidental or conducive thereto or
consequential thereon, including, but without in any way restricting the
generality of the foregoing, the power to make any alterations or
amendments to this Memorandum of Association and the Articles of
Association of the Company considered necessary or convenient in me manner
set out in the Articles of Association of the Company, and the power to do
any of me following acts or things, viz:
to pay all expenses of and incidental to the promotion, formation and
incorporation of the Company; to register the Company to do business in any
other jurisdiction; to sell, lease or dispose of any property of the
Company; to draw, make, accept, endorse, discount, execute and issue
promissory notes, debentures, bills of exchange, bills of lading, warrants
and other negotiable or transferable instruments; to lend money or other
assets and to act as guarantors; to borrow or raise money on the security
of the undertaking or on all or any of the assets of the Company including
uncalled capital or without security; to invest monies of the Company in
such manner as the Directors determine; to promote other companies; to sell
the undertaking of the Company for cash or any other consideration; to
distribute assets in specie to Members of the Company; to make charitable
or benevolent donations; to pay pensions or gratuities or provide other
benefits in cash or kind to Directors, officers, employees, past or present
and their families; to carry on any trade or business and generally to do
all acts and things which, in the opinion of the Company or the Directors,
may be conveniently or profitably or usefully acquired and dealt with,
carried on, executed or done by the Company in connection with the business
aforesaid PROVIDED THAT the Company shall only carry on the businesses for
which a license is required under the laws of the Cayman Islands when so
licensed under the terms of such laws.
5. The liability of each Member is limited to the amount from time
to time unpaid on such Member's shares.
6. The share capital of the Company is US$50,000.00 divided into
50,000 shares of a nominal or par value of US$1.00 each with power for the
Company insofar as is permitted by law, to redeem or purchase any of its
shares and to increase or reduce the said capital subject to the provisions
of the Companies Law (Revised) and the Articles of Association and to issue
any part of its capital, whether original, redeemed or increased with or
without any preference, priority or special privilege or subject to any
postponement of rights or to any conditions or restrictions and so that
unless the conditions of issue shall otherwise expressly declare every
issue of shares whether declared to be preference or otherwise shall be
subject to the powers hereinbefore contained.
7. If the Company is registered as exempted, its operations will be
carried on subject to the provisions of Section 192 of the Companies Law
(Revised) and, subject to the provisions of the Companies Law (Revised) and
the Articles of Association, it shall have the power to register by way of
continuation as a body corporate limited by shares under the laws of any
jurisdiction outside the Cayman Islands and to be deregistered in the
Cayman Islands.
WE the several persons whose names and addresses are subscribed are
desirous of being formed into a company in pursuance of this Memorandum of
Association and we respectively agree to take the number of shares in the
capital of the Company set opposite our respective names.
<PAGE>
DATED the 21st day of April, 1994.
SIGNATURE, ADDRESSES and NUMBER OF SHARES
DESCRIPTION OF SUBSCRIBER TAKEN BY EACH
/s/A. B. Travers
A. B. Travers, Attorney-at-Law One
PO Box 309
Grand Cayman, B.W.I.
/s/Sharon Pierson
Sharon Pierson, Attorney-at-Law One
PO Box 309
Grand Cayman, B.W.I .
Witness to the above signatures
PO Box 309
Grand Cayman, B.W.I.
I, CINDY Y. JEFFERSON, Dep., Registrar of Companies in and for the Cayman
Islands DO HEREBY CERTIFY that this is a true and correct copy of the
Memorandum of Association of this Company duly incorporated on the 21 day
of April, 1994.
/s/ C. Jefferson
Dep. REGISTRAR OF COMPANIES
ABT/62498
Exhibit B-25(a)
THE COMPANIES LAW (REVISED)
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
ENTERGY POWER HOLDING I, LTD
REGISTERED AND FILED
AS NO. 59230 THIS 6TH DAY
OF APRIL, 1995
/S/Cindy Y. Jefferson
DEP. REGISTRAR OF
COMPANIES
CAYMAN ISLANDS
The Regulations contained or incorporated in Table 'A' in the
First Schedule of the Companies Law (Revised) shall not apply to this
Company and the following Regulations shall comprise the Articles of
Association of the Company:-
1. In these Regulations:-
a) "the Law" means the Companies Law (Revised) of the Cayman Islands and
any statutory amendment or modification thereof. Where any provision
of the law is referred to, the reference is to that provision as
modified by any law for the time being in force. Unless the context
otherwise requires, expressions defined in the law or any statutory
modification thereof in force at the date at which these Regulations
become binding on the Company, shall have the meanings so defined;
b) "the Holder" means. in relation to registered shares, the member whose
name is entered in the register of members as the holder of those shares
and, in the case of shares issued in bearer form, the holder for the time
being of the certificate representing the same.
SHARES
2. Subject as herein provided all shares in the capital of the Company
for the time being and from time to time unissued shall be under the
control of the Directors, and may be allotted or disposed of in such
manner. to such persons and on such terms as the Directors in their
absolute discretion may think fit.
3. If at any time the share capital is divided into different classes of
shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may be varied with the consent
in writing of the holders of three-fourths of the issued shares of that
class, or with the sanction of a special resolution passed at a separate
general meeting of the holders of the shares of the class. To every such
separate general meeting the provisions of these Regulations relating to
general meetings shall mutatis mutandis apply, but so that the necessary
quorum shall be two persons at least holding or representing by proxy
one-third of the issued shares of the class and that any holder of shares
of the class present in person or by proxy may demand a poll.
4. Every person whose name is entered as a member in the Register of
Members shall, without payment, be entitled to a certificate under the seal
of the Company specifying the share or shares held by him and the amount
paid up thereon, provided that in respect of a share or shares held jointly
by several persons the Company shall not be bound to issue more than one
certificate, and delivery of a certificate for a share to one of several
joint holders shall be sufficient delivery to all.
5. With the exception of a share certificate specifying a share or shares
issued to Bearer, if a share certificate is defaced, lost or destroyed it
may be renewed on such terms, if any, as to evidence and indemnity as the
Directors think fit.
FRACTIONAL SHARES
6. The Directors may issue fractions of a share of any class of shares,
and, if so issued, a fraction of a share shall be subject to and carry the
corresponding fraction of liabilities (whether with respect to nominal or
par value, premium, contribution, calls or otherwise howsoever),
limitations, preferences, privileges, qualifications, restrictions, rights
(including, without prejudice to the foregoing generality, voting and
participation rights) and other attributes of a whole share of the same
class of shares. If more than one fraction of a share of the same class is
issued to or acquired by the same shareholder such fractions shall be
accumulated. For the avoidance of doubt it is hereby declared that in these
Articles the expression "share" shall include a fraction of a share.
LIEN
7. The Company shall have a lien on every share (not being a fully paid
share) for all moneys (whether presently payable or not) called or payable
at a fixed time in respect of that share, and the Company shall also have a
lien on all shares (other than fully paid up shares) standing registered in
the name of a single person for all moneys presently payable by him or his
estate to the Company; but the Directors may at any time declare any share
to be wholly or in part exempt from the provisions of this Regulation. The
Company's lien, if any, on a share shall extend to all dividends payable
thereon.
8. The Company may sell, in such manner as the Directors think fit, any
shares on which the Company has a lien, but no sale shall be made unless
some sum in respect of which the lien exists is presently payable nor until
the expiration of fourteen days after a notice in writing, stating and
demanding payment of such part of the amount in respect of which the lien
exists as is presently payable, has been given to the registered holder for
the time being of the share, or the persons entitled thereto by reason of
his death or bankruptcy.
9. For giving effect to any such sale the Directors may authorize some
person to transfer the shares sold to the purchaser thereof. The purchaser
shall be registered as the holder of the shares comprised in any such
transfer and he shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by any
irregularity or invalidity in the proceedings in reference to the sale.
10. The proceeds of the sale shall be received by the Company and applied
in payment of such part of the amount in respect of which the lien exists
as is presently payable. and the residue shall (subject to a like lien for
sums not presently payable as existed upon the shares prior to the sale) be
paid to the person entitled to the shares at the date of the sale
CALLS ON SHARES
11. The Directors may from time to time make calls upon the members in
respect of any moneys unpaid on their shares; and each member shall
(subject to receiving at least fourteen days' notice specifying the time or
times of payment) pay to the Company at the time or times so specified the
amount called on his shares.
12. The joint holders of a share shall be jointly and severally liable to
pay calls in respect thereof.
13. If a sum called in respect of a share is not paid before or on the day
appointed for payment thereof, the person from whom the sum is due shall
pay interest upon the sum at the rate of eight centum per annum from the
day appointed for the payment thereof to the time of the actual payment,
but the Directors shall be at liberty to waive payment of that interest
wholly or in part.
14. The provisions of these Regulations as to the liability of joint
holders and as to payment of interest shall apply in the case of
non-payment of any sum which, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the amount of the share, or
by way of premium, as if the same had become payable by virtue of a call
duly made and notified.
15. The Directors may make arrangements on the issue of shares for a
difference between the holders in the amount of calls to be paid and in the
times of payment.
16. The Directors may, if they think fit, receive from any member willing
to advance the same all or any part of the moneys uncalled and unpaid upon
any shares held by him; and upon all or any of the moneys so advanced may
(until the same would, but for such advance, become presently payable) pay
interest at such rate (not exceeding without the sanction of the Company in
general meeting, six per cent) as may be agreed upon between the member
paying the sum in advance and the Directors.
BEARER SHARES
17. Without prejudice to Regulation 2 hereof, the Company may issue shares
to bearer provided that any shares so issued shall be fully paid and the
Company shall issue a certificate specifying the share or shares issued to
bearer.
TRANSFER OF SHARES
18. The instrument of transfer of any share shall be executed by or on
behalf of the transferor and if so required by the Directors shall also be
executed on behalf of the transferee and the transferor shall be deemed to
remain a holder of the share until the name of the transferee is entered in
the Register of Members in respect thereof. Notwithstanding the foregoing,
however, shares issued to bearer shall be transferred by delivery of the
certificate by the transferor to the transferee and the transferee shall
immediately without further action become a member of the Company.
19. The following provisions shall apply to all shares except those shares
issued to bearer:-
a) Shares shall be transferred in any usual or common form approved by
the Directors or failing such determination in the following form:
"I [Transferor] for good and valuable consideration received by
me from [Transferee] do hereby transfer to the said [Transferee]
the [ ] share(s) standing in my name in the Register of ENTERGY
POWER HOLDING I, LTD. to hold unto the said [Transferee] his
executors, administrators and assigns, subject to the several
conditions on which I held the same at the time of the execution
hereof: and I, the said [Transferor] do hereby consent that my
name remain on the Register of the said Company until such time
as the said Company may enter the transferee's name thereon; And
I the said [Transferee] do hereby agree to take the said share(s)
subject to the same conditions.
As witness our hands
Signed by the said [Transferor]
on the day of 199
in the presence of:
Witness Transferor
Signed by the said (Transferee)
on the day of 199
in the presence of:
Witness Transferor
b) The Directors may decline to register any transfer of shares, not
being fully paid shares, to a person of whom they do not approve, and
may also decline to register any transfer of shares on which the
Company has a lien. The Directors may also suspend the registration
of transfers during the fourteen days immediately preceding a general
meeting. The Directors may decline to recognize any instrument of
transfer unless the instrument of transfer is accompanied by the
certificate of the shares to which it relates, and such other
evidence as the Directors may reasonably require to show the right
of the transferor to make the transfer. If the Directors refuse to
register a transfer of any shares, they shall within two months after
the date on which the transfer was lodged with the Company send to
the transferee notice of the refusal.
c) The legal personal representative of a deceased sole holder of a share
shall be the only person recognized by the Company as having any title to
the share. In the case of a share registered in the name of two or more
holders, the survivors or survivor, or the legal personal representatives
of the deceased survivor, shall be the only person recognized by the
Company as having any title to the share.
d) Any person becoming entitled to a share in consequence of the death or
bankruptcy of a member shall upon such evidence being produced as may from
time to time be properly required by the Directors, have the right either
to be registered as a member in respect of the share or, instead of being
registered himself, to make such transfer of the share as the deceased or
bankrupt person could have made; but the Directors shall, in either case,
have the same right to decline or suspend registration as they would have
had in the case of a transfer of the share by the deceased or bankrupt
person before the death or bankruptcy.
e) A person becoming entitled to a share by reason of the death or
bankruptcy of the holder shall be entitled to the same dividends and other
advantages to which he would be entitled if he were the registered holder
of the share, except that he shall not, before being registered as a member
in respect of the share, be entitled in respect of it to exercise any right
conferred by membership in relation to meetings of the Company.
FORFEITURE OF SHARES
20. If a member fails to pay any call or installment of a call on the day
appointed for payment thereof, the Directors may, at any time thereafter
during such time as any part of such call or installment remains unpaid,
serve a notice on him requiring payment of so much of the call or
installment as is unpaid, together with any interest which may have
accrued.
21. The notice shall name a further day (not earlier than the expiration
of fourteen days from the date of the notice) on or before which the
payment required by the notice is to be made, and shall state that in the
event of non-payment at or before the time appointed the shares in respect
of which the call was made will be liable to be forfeited.
22. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which the notice has been given may at any
time thereafter, before the payment required by notice has been made, be
forfeited by a resolution of the Directors to that effect.
23. A forfeited share may be sold or otherwise disposed of on such terms
and in such manner as the Directors think fit, and at any time before a
sale or disposition the forfeiture may be cancelled on such terms as the
Directors think fit.
24. A person whose shares have been forfeited shall cease to be a member
in respect of the forfeited shares, but shall, notwithstanding, remain
liable to pay to the Company all moneys which at the date of forfeiture
were payable by him to the Company in respect of the shares, but his
liability shall cease if and when the Company receives payment in full of
the nominal amount of the shares.
25. A statutory declaration in writing that the declarant is a Director of
the Company, and that a share in the Company has been duly forfeited on a
date stated in the declaration, shall be conclusive evidence of the facts
therein stated as against all persons claiming to be entitled to the share.
The Company may receive the consideration, if any, given for the share on
any sale or disposition thereof and may execute a transfer of the share in
favour of the person to whom the share is sold or disposed of and he shall
thereupon be registered as the holder of the share, and shall not be bound
to see to the application of the purchase money, if any, nor shall his
title to the share be affected by any irregularity or invalidity in the
proceedings in reference to the forfeiture, sale or disposal of the share.
26. The provisions of these Regulations as to forfeiture shall apply in
the case of non-payment of any sum which by the terms of issue of a share
becomes payable at a fixed time, whether on account of the amount of the
share, or by way of premium, as if the same had been payable by virtue of a
call duly made and notified.
ALTERATION OF CAPITAL
27. The Company may from time to time by ordinary resolution increase the
share capital by such sum, to be divided into shares of such amount, as the
resolution shall prescribe.
28. The new shares shall be subject to the same provisions with reference
to the payment of calls, lien, transfer, transmission, forfeiture and
otherwise as the shares in the original share capital.
29. The Company may by ordinary resolution:-
a) consolidate and divide all or any of its share capital into shares of
larger amount than its existing shares;
b) sub-divide its existing shares, or any of them into shares of smaller
amount than is fixed by the Memorandum of Association, subject nevertheless
to the provisions of Section 12 of the Law;
c) cancel any shares which, at the date of the passing of the resolution,
have not been taken or agreed to be taken by any person.
30. The Company may by special resolution reduce its share capital and any
capital redemption reserve in any manner authorized by law.
REDEMPTION AND PURCHASE OF OWN SHARES
31.
a) Subject to the provisions of the Law, the Company may
i) issue shares which are to be redeemed or are liable to be
redeemed at the option of the Company or the holder;
ii) purchase its own shares (including any redeemable shares); and
iii) make a payment in respect of the redemption or purchase of its
own shares otherwise than out of profits or the proceeds of a
fresh issue of shares.
b) A share which is liable to be redeemed may be redeemed by either the
Company or the Holder giving to the other not less than Thirty days
notice in writing of the intention to redeem such shares specifying
the date of such redemption which must be a day on which banks in
the Cayman Islands are open for business.
c) The amount payable on such redemption on each share so redeemed shall
be the amount determined by the Directors as being the fair value thereof
as between a willing buyer and a willing seller.
d) Any share in respect of which notice of redemption has been given
shall not be entitled to participate in the profits of the Company in
respect of the period after the date specified as the date of redemption in
the notice of redemption.
e) Where the Company has agreed to purchase any share from a member, it
shall give notice to all other members of the Company specifying the number
and class of shares proposed to be purchased, the name and address of the
seller, the price to be paid therefor and the portion (if any) of that
price which is being paid out of capital. Such notice shall also specify a
date (being not less than Thirty days after the date of the notice) on
which the purchase is to be effected and shall invite members (other than
the seller) to intimate any objections to the proposed purchase to the
Company before that date. If no objections have been received before the
date specified in the notice the Company shall be entitled to proceed with
the purchase upon the terms specified therein. If any objection is received
prior to the specified date, the Directors may either decline to proceed
with the purchase or convene a general meeting of the Company to consider
and, if thought fit, approve the terms of the proposed purchase.
f) The redemption or purchase of any share shall not be deemed to give
rise to the redemption or purchase of any other share.
g) At the date specified in the notice of redemption or purchase, the
holder of the shares being redeemed or purchased shall be bound to deliver
up to the Company at its registered office the certificate thereof for
cancellation and thereupon the Company shall pay to him the redemption or
purchase monies in respect thereof.
h) The Directors may when making payments in respect of redemption or
purchase of shares in accordance with the provisions of this Regulation, if
authorized by the terms of issue of the shares being redeemed or purchased
or with the agreement of the holder of such shares, make such payment
either in cash or in specie.
GENERAL MEETlNGS
32.
a) The Directors may, whenever they think fit, convene a general meeting
of the Company.
b) General meetings shall also be convened on the written requisition of
any two members of the Company deposited at the Registered Office of
the Company specifying the objects of the meeting and signed by the
requisitionists, and if the Directors do not within twenty-one days
from the date of deposit of the requisition proceed duly to convene
the meeting, the requisitionists themselves may convene the general
meeting in the same manner, as nearly as possible, as that in which
meetings may be convened by the Directors. and all reasonable
expenses incurred by the requisitionists as a result of the failure
of the Directors shall be reimbursed to them by the Company.
c) If at any time there are no Directors of the Company, any two members
of the Company may convene a general meeting in the same manner as nearly
as possible as that in which meetings may be convened by the Directors.
NOTICE OF GENERAL MEETINGS
33. Subject to the provisions of Section 59 of the Law relating to special
resolutions, seven days' notice at the least counting from the date service
is deemed to take place as provided in these Regulations specifying the
place, the day and the hour of the meeting and, in case of special
business, the general nature of that business, shall be given in manner
hereinafter provided or in such other manner (if any) as may be prescribed
by the Company in general meeting to such persons as are, under the
Regulations of the Company, entitled to receive such notices from the
Company; but with the consent of all the members entitled to receive notice
of some particular meeting, that meeting may be convened by such shorter
notice or without notice and in such manner as those members may think fit.
34. The accidental omission to give notice of a meeting to or the
non-receipt of a notice of a meeting by any member shall not invalidate the
proceedings at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
35. All business carried out at a general meeting shall be deemed special
with the exception of sanctioning a dividend, the consideration of the
accounts, balance sheets, and ordinary report of the Directors and
Auditors, and the appointment and removal of Directors and the fixing of
the remuneration of the Auditors. No special business shall be transacted
at any general meeting without the consent of all members entitled to
receive notice of that meeting unless notice of such special business has
been given in the notice convening that meeting.
36. No business shall be transacted at any general meeting unless a quorum
of members is present at the time when the meeting proceeds to business;
save as herein otherwise provided two members or one member holding at
least a majority in number of the issued shares of the Company present in
person or by proxy shall be a quorum.
37. On presentation of his certificate to the chairman of some particular
general meeting for inspection, a holder of a share or shares in the
Company issued to bearer may attend that general meeting and vote thereat.
38. If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting, if convened upon the requisition of
members, shall be dissolved; in any other case it shall stand adjourned to
the same day in the next week, at the same time and place, and if at the
adjourned meeting a quorum is not present within half an hour from the time
appointed for the meeting the member or members present shall be a quorum.
39. The Chairman, if any, of the Board of Directors shall preside as
chairman at every general meeting of the Company.
40. If there is no such chairman, or if at any meeting he is not present
within fifteen minutes after the time appointed for holding the meeting or
is unwilling to act as chairman, the members present shall choose one of
their number to be chairman.
41. The chairman may with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting) adjourn a meeting from
time to time and from place to place, but no business shall be transacted
at any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a meeting is adjourned
for ten days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting. Save as aforesaid it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
42. At any general meeting a resolution put to the vote of the meeting
shall be decided on a show of hands, unless a poll is (before or on the
declaration of the result of the show of hands) demanded by at least three
members present in person or by proxy entitled to vote or by one member or
two members so present and entitled, if that member or those two members
together hold not less than fifteen per cent of the paid up capital of the
Company, and unless a poll is so demanded, a declaration by the chairman
that a resolution has, on a show of hands, been carried, or carried
unanimously, or by a particular majority, or lost, and an entry to that
effect in the book of the proceedings of the Company, shall be conclusive
evidence of the fact, without proof of the number or proportion of the
votes recorded in favour of, or against, that resolution.
43. If a poll is duly demanded it shall be taken in such manner as the
chairman directs, and the result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded.
44. In the case of an equality of votes, whether on a show of hands or on
a poll, the chairman of the meeting at which the show of hands takes place
or at which the poll is demanded, shall be entitled to a second or casting
vote.
45. A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the chairman of the meeting directs.
VOTES OF MEMBERS
46. On a show of hands every member present in person and every person
representing a member by proxy shall have one vote. On a poll every member
and every person representing a member by proxy shall have one vote for
each share of which he or the person represented by proxy is the holder.
47. In the case of joint holders the vote of the senior who tenders a vote
whether in person or by proxy shall be accepted to the exclusion of the
votes of the joint holders; and for this purpose seniority shall be
determined by the order in which the names stand in the Register of
Members.
48. A member of unsound mind, or in respect of whom an order has been made
by any court having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, or other person in the nature of a
committee appointed by that court, and any such committee or other person,
may on a poll. vote by proxy.
49. No member shall be entitled to vote at any general meeting unless all
calls or other sums presently payable by him in respect of shares in the
Company have been paid.
50. On a poll votes may be given either personally or by proxy.
51. The instrument appointing a proxy shall be in writing under the hand
of the appointor or of his attorney duly authorized in writing or, if the
appointor is a corporation, either under seal or under the hand of an
officer or attorney duly authorized. A proxy need not be a member of the
Company.
52. An instrument appointing a proxy may be in any form approved by the
Directors, or failing any such approval by the Directors, shall be in the
following form:-
ENTERGY POWER HOLDING I, LTD.
I/We the undersigned being a shareholder in the above Company
HEREBY APPOINT [ ] whom failing [ ] to be my proxy and
on my/our behalf to attend, vote at and do all acts and things
which l/We could personally have done at a meeting of shareholders
of the said Company to be held at the Registered Office of the
Company on the day of 19 and at all continuations and
adjournments thereof
Date
Signature of Shareholder
53. The instrument appointing a proxy shall be deemed to confer authority
to demand or join in demanding a poll.
54. A resolution in writing signed by all the members for the time being
entitled to receive notice of and to attend and vote at general meetings
(or being corporations by their duly authorized representatives) shall be
as valid and effective as if the same had been passed at a general meeting
of the Company duly convened and held.
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
55. Any corporation which is a member or a Director of the Company may by
resolution of its directors or other governing body authorize such person
as it thinks fit to act as its representative at any meeting of the Company
or of any class of members of the Company or of the Board of Directors of
the Company or of a Committee of Directors, and the person so authorized
shall be entitled to exercise the same powers on behalf of the corporation
which he represents as that corporation could exercise if it were an
individual member or Director of the Company.
DIRECTORS
56. The name of the first Directors shall either be determined in writing
by a majority of or elected at a meeting of the subscribers of the
Memorandum of Association.
57. Subject to the provisions of these Regulations, a Director shall hold
office until such time as he is removed from office by an ordinary
resolution of the Company in general meeting.
58. The Company in general meeting may from time to time fix the maximum
and minimum number of Directors to be appointed but unless such number is
fixed as aforesaid the number of Directors shall be unlimited.
59. The remuneration of the Directors shall from time to time be
determined by the Company in general meeting.
60. The shareholding qualification for Directors may be fixed by the
Company in general meeting and unless and until so fixed no share
qualification shall be required.
61. The Directors shall have power at any time and from time to time to
appoint a person as Director, either as a result of a casual vacancy or as
an additional Director, subject to the maximum number (if any) imposed by
the Company in general meeting.
ALTERNATE DIRECTOR
62. Any Director may in writing appoint another person to be his alternate
to act in his place at any meeting of the Directors at which he is unable
to be present. Every such alternate shall be entitled to notice of meetings
of the Directors and to attend and vote thereat as a Director when the
person appointing him is not personally present and where he is a Director
to have a separate vote on behalf of the Director he is representing in
addition to his own vote. A Director may at any time in writing revoke the
appointment of an alternate appointed by him. Such alternate shall not be
an officer of the Company and shall be deemed to be the agent of the
Director appointing him. The remuneration of such alternate shall be
payable out of the remuneration of the Director appointing him and the
proportion thereof shall be agreed between them.
63. Any Director may appoint any person, whether or not a Director of the
company, to be the proxy of that Director to attend and vote on his behalf,
in accordance with instructions given by that Director, or in the absence
of such instructions at the discretion of the proxy, at a meeting or
meetings of the Directors which that Director is unable to attend
personally. The instrument appointing the proxy shall be in writing under
the hand of the appointing Director and shall be in the form printed below
or any other form approved by the Directors, and must be lodged with the
chairman of the meeting of the Directors at which such proxy is to be used,
or first used, prior to the commencement of the meeting:-
ENTERGY POWER HOLDING I, LTD
I the undersigned being a Director of the above Company
HEREBY APPOINT [ ] when failing [ ]to be my Proxy
and on my behalf to attend, vote at and to do all acts and things
which I could personally have done at a meeting of Directors of
the said Company to be held on the day of 199 and at all
continuations and adjournments thereof
Date
Signature of Director
POWERS AND DUTIES OF DIRECTORS
64. The business of the Company shall be managed by the Directors, who may
pay all expenses incurred in getting up and registering the Company and may
exercise all such powers of the Company as are not, by the Law or these
Articles, required to be exercised by the Company in general meeting,
subject, nevertheless, to any Regulation of these Articles, to the
provisions of the Law, and to such regulations, being not inconsistent with
the aforesaid Regulations, or provisions as may be prescribed by the
Company in general meeting; but no regulation made by the Company in
general meeting shall invalidate any prior act of the Directors which would
have been valid if that regulation had not been made.
65. The Directors may from time to time appoint any person, whether or not
a director of the Company to hold such office in the Company as the
Directors may think necessary for the administration of the Company,
including without prejudice to the foregoing generality, the office of
President, one or more Vice-Presidents, Treasurer, Assistant Treasurer,
Manager or Controller, and for such term and at such remuneration (whether
by way of salary or commission or participation in profits or partly in one
way and partly in another), and with such powers and duties as the
Directors may think fit. The Directors may also appoint one or more of
their number to the office of Managing Director upon like terms, but any
such appointment shall ipso facto determine if any Managing Director ceases
from any cause to be a Director, or if the Company in general meeting
resolves that his tenure of office be terminated.
66. The Directors shall appoint the Company Secretary (and if need be an
Assistant Secretary or Assistant Secretaries) who shall hold office for
such term, at such remuneration and upon such conditions and with such
powers as they think fit. Any Secretary or Assistant Secretary so appointed
by the Directors may be removed by the Directors.
67. The Directors may delegate any of their powers to committees
consisting of such member or members of their body as they think fit; any
committee so formed shall in the exercise of the powers so delegated
conform to any regulations that may be imposed on it by the Directors.
68.
a) The Directors may from time to time and at any time by power of
attorney appoint any company, firm or person or body of persons,
whether nominated directly or indirectly by the Directors, to be
the attorney or attorneys of the Company for such purposes and
with such powers, authorities and discretion (not exceeding
those vested in or exercisable by the Directors under these
Articles) and for such period and subject to such conditions as
they may think fit, and any such power of attorney may contain
such provisions for the protection and convenience of persons
dealing with any such attorney as the Directors may think fit,
and may also authorize any such attorney to delegate all or any
of the powers, authorities and discretion vested in him.
b) The Directors may from, time to time provide for the management of the
affairs of the Company in such manner as they shall think fit and the
provisions contained in the three next following paragraphs shall be
without prejudice to the general powers conferred by this paragraph.
c) The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs of the
company and may appoint any persons to be members of such committees or
local boards and may appoint any managers or agents of the Company and may
fix the remuneration of any of the aforesaid.
d) The Directors from time to time and at any time may delegate to any
such committee, local board, manager or agent any of the powers.
authorities and discretion for the time being vested in the Directors and
may authorize the members for the time being of any such local board, or
any of them to fill up any vacancies therein and to act notwithstanding
vacancies and any such appointment or delegation may be made on such terms
and subject to such conditions as the Directors may think fit and the
Directors may at any time remove any person so appointed and may annul or
vary any such delegation, but no person dealing in good faith and without
notice of any such annulment or variation shall be affected thereby.
e) Any such delegates as aforesaid may be authorized by the Directors to
subdelegate all or any of the powers, authorities, and discretion for the
time being vested to them.
BORROWING POWERS OF DIRECTORS
69. The Directors may exercise all the powers of the Company to borrow
money and to mortgage or charge its undertaking, property and uncalled
capital or any part thereof, to issue debentures, debenture stock and other
securities whenever money is borrowed or as security for any debt,
liability or obligation of the Company or of any third party.
THE SEAL
70.
a) The Seal of the Company shall not be affixed to any instrument except
by the authority of a resolution of the Board of Directors provided
always that such authority may be given prior to or after the
affixing of the Seal and if given after may be in general form
confirming a number of affixings of the Seal. The Seal shall be
affixed in the presence of a Director or the Secretary (or an
Assistant Secretary) of the Company or in the presence of any one
or more persons as the Directors may appoint for the purpose and
every person as aforesaid shall sign every instrument to which
the Seal of the Company is so affixed in their presence.
b) The Company may maintain a facsimile of its Seal in such countries or
places as the Directors may appoint and such facsimile Seal shall not
be affixed to any instrument except by the authority of a resolution
of the Board of Directors provided always that such authority may
be given prior to or after the affixing of such facsimile Seal and
if given after may be in general form confirming a number of
affixings of such facsimile Seal. The facsimile Seal shall be
affixed in the presence of such person or persons as the Directors
shall for this purpose appoint and such person or persons as
aforesaid shall sign every instrument to which the facsimile Seal
of the Company is so affixed in their presence and such affixing
of the facsimile Seal and signing as aforesaid shall have the same
meaning and effect as if the Company Seal had been affixed in the
presence of and the instrument signed by a Director or the
Secretary (or an Assistant Secretary) of the Company or in the
presence of any one or more persons as the Directors may appoint
for the purpose.
c) Notwithstanding the foregoing, the Secretary or any Assistant
Secretary shall have the authority to affix the Seal, or the facsimile
Seal. to any instrument for the purposes of attesting authenticity of the
matter contained therein but which does not create any obligation binding
on the Company
DISQUALIFICATION OF DIRECTORS
71. The office of Director shall be vacated, if the Director:-
a) becomes bankrupt or makes any arrangement or composition with his
creditors;
b) is found to be or becomes of unsound mind; or
c) resigns his office by notice in writing to the Company.
PROCEEDINGS OF DIRECTORS
72. The Directors may meet together (either within or without the Cayman
Islands) for the despatch of business, adjourn, and otherwise regulate
their meetings and proceedings as they think fit. Questions arising at any
meeting shall be decided by a majority of votes. In case of an equality of
votes the chairman shall have a second or casting vote. A Director may, and
the Secretary or Assistant Secretary on the requisition of a Director
shall, at any time summon a meeting of the Directors.
73. A Director or Directors may participate in any meeting of the Board,
or of any committee appointed by the Board of which such Director or
Directors are members, by means of telephone or similar communication
equipment by way of which all persons participating in such meeting can
hear each other and such participation shall be deemed to constitute
presence in person at the meeting.
74. The quorum necessary for the transaction of the business of the
Directors may be fixed by the Directors, and unless so fixed, if there be
more than two Directors shall be two, and if there be two or less Directors
shall be one. A director represented by proxy or by an Alternate Director
at any meeting shall be deemed to be present for the purposes of
determining whether or not a quorum is present.
75. A Director who is in any way, whether directly or indirectly,
interested in a contract or proposed contract with the Company shall
declare the nature of his interest at a meeting of the Directors. A general
notice given to the Directors by any Director to the effect that he is a
member of any specified company or firm and is to be regarded as interested
in any contract which may thereafter be made with that company or firm
shall be deemed a sufficient declaration of interest in regard to any
contract so made. A Director may vote in respect of any contract or
proposed contract or arrangement notwithstanding that he may be interested
therein and if he does so his vote shall be counted and he may be counted
in the quorum at any meeting of the Directors at which any such contract or
proposed contract or arrangement shall come before the meeting for
consideration.
76. A Director may hold any other office or place of profit under the
Company (other than the office of auditor) in conjunction with his office
of Director for such period and on such terms (as to remuneration and
otherwise) as the Directors may determine and no Director or intending
Director shall be disqualified by his office from contracting with the
Company either with regard to his tenure of any such other office or place
of profit or as vendor, purchaser or otherwise, nor shall any such contract
or arrangement entered into by or on behalf of the Company in which any
Director is in any way interested, be liable to be avoided, nor shall any
Director so contracting or being so interested, be liable to account to the
Company for any profit realized by any such contract or arrangement by
reason of such Director holding that office or of the fiduciary relation
thereby established. A Director, notwithstanding his interest, may be
counted in the quorum present at any meeting whereat he or any other
Director is appointed to hold any such office or place of profit under the
Company or whereat the terms of any such appointment are arranged and he
may vote on any such appointment or arrangement.
77. Any Director may act by himself or his firm in a professional capacity
for the Company, and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director; provided that nothing
herein contained shall authorize a Director or his firm to act as auditor
to the Company.
78. The Directors shall cause minutes to be made in books or loose-leaf
folders provided for the purpose of recording:
a) all appointments of officers made by the Directors;
b) the names of the Directors present at each meeting of the Directors
and of any committee of the Directors;
c) all resolutions and proceedings at all meetings of the Company, and of
the Directors and of committees of Directors.
79. When the Chairman and Secretary of a meeting of the Directors sign the
minutes of such meeting the same shall be deemed to have been duly held
notwithstanding that all the Directors have not actually come together or
that there may have been a technical defect in the proceedings.
80. A resolution signed by all the Directors shall be as valid and
effectual as if it had been passed at a Meeting of the Directors duly
called and constituted. When signed a resolution may consist of several
documents each signed by one or more of the Directors.
81. The continuing Directors may act notwithstanding any vacancy in their
body but if and so long as their number is reduced below the number fixed
by or pursuant to the Regulations of the Company as the necessary quorum of
Directors, the continuing Directors may act for the purpose of increasing
the number, or of summoning a general meeting of the Company, but for no
other purpose.
82. The Directors may elect a chairman of their meetings and determine the
period for which he is to hold office; but if no such chairman is elected,
or if at any meeting the chairman is not present within fifteen minutes
after the time appointed for holding the same, the Directors present may
choose one of their number to be chairman of the meeting.
83. A committee appointed by the Directors may elect a chairman of its
meetings; if no such chairman is elected, or if at any meeting the chairman
is not present within five minutes after the time appointed for holding the
same, the members present may choose one of their number to be chairman of
the meeting.
84. A committee appointed by the Directors may meet and adjourn as it
thinks proper. Questions arising at any meeting shall be determined by a
majority of votes of the committee members present and in case of an
equality of votes the chairman shall have a second or casting vote.
85. All acts done by any meeting of the Directors or of a committee of
Directors, or by any penaon acting as a Director, shall notwithstanding
that it be afterwards discovered that there was some defect in the
appointment of any such Director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such person
had been duly appointed and was qualified to be a Director.
DIVIDENDS
86.
a) The Company in general meeting may declare dividends, but no dividend
shall exceed the amount recommended by the Directors.
b) The Directors may from time to time pay to the members such interim
dividends as appear to the Directors to be justified by the profits
of the Company.
87. The Directors may, before recommending any dividend, set aside out of
the profits of the Company such sums as they think proper as a reserve or
reserves which shall, at the discretion of the Directors be applicable for
meeting contingencies, or for equalizing dividends or for any other purpose
to which the profits of the Company may be properly applied and pending
such application may, at the like discretion, either be employed in the
business of the Company or be invested in such investments (other than
shares of the Company) as the Directors may from time to time think fit.
88. Any dividend may be paid by cheque or warrant sent through the post to
the registered address of the member or person entitled thereto, or in the
case of joint holders, to any one of such joint holders at his registered
address or to such person and such address as the member or person
entitled, or such joint holders as the case may be, may direct. Every such
cheque or warrant shall be made payable to the order of the person to whom
it is sent or to the order of such other person as the member or person
entitled, or such joint holders as the case may be, may direct.
Notwithstanding the foregoing, any dividend to which a member is entitled
by way of his holding of shares issued to bearer, shall be paid to that
member on presentation for inspection of his certificate at the registered
office of the Company.
89. The Directors when paying dividends to the members in accordance with
the foregoing provisions may make such payment either in cash or in specie.
90. No dividend shall be paid otherwise than out of profits or, subject to
the restrictions of the Law, the share premium account.
91. Subject to the rights of persons, if any, entitled to shares with
special rights as to dividends, all dividends shall be declared and paid
according to the amounts paid on the shares, but if and so long as nothing
is paid up on any of the shares in the Company dividends may be declared
and paid according to the amounts of the shares. No amount paid on a share
in advance of calls shall, while carrying interest, be treated for the
purposes of this Regulation as paid on the share.
92. If several persons are registered as joint holders of any share, any
of them may give effectual receipts for any dividend or other moneys
payable on or in respect of the share.
93. No dividend shall bear interest against the Company.
ACCOUNTS
94. The books of account relating to the Company's affairs shall be kept
in such manner as may be determined from time to time by the Directors.
95. The books of account shall be kept at the Registered Office of the
Company, or at such other place or places as the Directors think fit, and
shall always be open to the inspection of the Directors.
96. The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall be
open to the inspection of members not being Directors, and no member (not
being a Director) shall have any right of inspecting any account or book or
document of the Company except as conferred by Law or authorized by the
Directors or by the Company in general meeting.
CAPITALIZATION OF PROFITS
97. The Company in general meeting may upon the recommendation of the
Directors resolve that it is desirable to capitalize any part of the amount
for the time being standing to the credit of any of the Company's reserve
accounts or to the credit of the profit and loss account or otherwise
available for distribution, and accordingly that such sum be set free for
distribution amongst the members who would have been entitled thereto if
distributed by way of dividend and in the same proportions on condition
that the same be not paid in cash but be applied either in or towards
paying up any amounts for the time being unpaid on any shares held by such
members respectively or paying up in full unissued shares or debentures of
the Company to be allotted and distributed credited as fully paid up to and
amongst such members in the proportion aforesaid, or partly in the one way
and partly in the other, and the Directors shall give effect to such
resolution; Provided always that a share premium account and capital
redemption reserve may only be applied in accordance with the provisions of
the Law.
98. Whenever such a resolution as aforesaid shall have been passed the
Directors shall make all appropriations and applications of the undivided
profits resolved to be capitalized thereby, and all allotments and issues
of fully paid shares or debentures, if any, and generally shall do all acts
and things required to give effect thereto, with full power to the
Directors to make such provision by payment in cash or otherwise as they
think fit for the case of shares or debentures becoming distributable in
fractions.
AUDIT
99. The accounts relating to the Company's affairs shall be audited in
such manner as may be determined from time to time by the Company in
general meeting or failing any such determination by the Directors or
failing any determination as aforesaid shall not be audited.
NOTICES
100. A notice may be given by the Company or by the persons entitled to
give notice to any member personally by sending it by post to him to the
address, if any, supplied by him to the Company for the giving of notices
to him. Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, prepaying and posting a
letter containing the notice and to have been effected at the expiration of
120 hours after the letter containing the same is posted.
101. A notice may be given by the Company to the joint holders of a share
by giving the notice to the joint holder named first in the Register of
Members in respect of the share.
102. A notice may be given by the Company to the persons entitled to a
share in consequence of the death or bankruptcy of a member by sending it
through the post in a prepaid letter addressed to them by name, or by the
title of representatives of the deceased, or trustee of the bankrupt, or by
any like description at the address, if any, supplied for the purpose by
the persons claiming to be so entitled, or (until such address has been so
supplied) by giving the notice in any manner in which the same might have
been given if the death or bankruptcy had not occurred.
103. Notice of every general meeting shall be given in some manner
hereinbefore authorized to:-
a) all members who have supplied to the Company an address for the giving
of notices to them; and
b) every person entitled to a share in consequence of the death or
bankruptcy of a member, who but for his death or bankruptcy would be
entitled to receive notice of the meeting.
No other person shall be entitled to receive notices of general
meetings.
INDEMNITY
104.
a) Every Director (including for the purposes of this Article any
Alternate Director appointed pursuant to the provisions of these
Articles), Managing Director, agent, Secretary, Assistant Secretary,
or other officer for the time being and from time to time of the
Company and the personal representatives of the same shall be
indemnified and secured harmless out of the assets and funds of
the Company against all actions, proceedings, costs, charges,
expenses, losses, damages or liabilities incurred or sustained by
him in or about the conduct of the Company's business or affairs or
in the execution or discharge of his duties, powers, authorities or
discretions, including without prejudice to the generality of the
foregoing, any costs, expenses, losses or liabilities incurred by
him in defending (whether successfully or otherwise) any civil
proceedings concerning the Company or its affairs in any court
whether in the Cayman Islands or elsewhere.
b) No such Director, Alternate Director, Managing Director, agent,
Secretary, Assistant Secretary or other officer of the Company shall
be liable (i) for the acts, receipts, neglects, defaults or omissions
of any other such director or officer or agent of the Company or (ii)
by reason of his having joined in any receipt for money not received
by him personally or (iii) for any loss on account of defect of
title to any property of the Company or (iv) on account of the
insufficiency of any security in or upon which any money of the
Company shall be invested or (v) for any loss incurred through any
bank, broker or other agent or (vi) for any loss occasioned by any
negligence, default, breach of duty, breach of trust, error of
judgment or oversight on his part or (vii) for any loss, damage or
misfortune whatsoever which may happen in or arise from the
execution or discharge of the duties, powers authorities, or
discretions of his office or in relation thereto, unless the
same shall happen through his own dishonesty.
NON-RECOGNITION OF TRUSTS
105. No person shall be recognized by the Company as holding any shares
upon any trust and the Company shall not be bound by or be compelled in any
way to recognize (even when having notice thereof) any equitable,
contingent, future or partial interest in any of its shares or any other
rights in respect thereof except an absolute right to the entirety thereof
in each shareholder registered in the Company's Register of Members (or in
the holder of the bearer certificate representing the shares in question,
as the case may be).
WINDING UP
106. If the Company shall be wound up the liquidator may, with the sanction
of an ordinary resolution of the Company divide amongst the members in
specie or kind the whole or any part of the assets of the Company (whether
they shall consist of property of the same kind or not) and may, for such
purpose set such value as he deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried out as
between the members or different classes of members. The liquidator may,
with the like sanction, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the contributories as the
liquidator, with the like sanction shall think fit, but so that no member
shall be compelled to accept any shares or other securities whereon there
is any liability.
REGISTRATION BY WAY OF CONTINUATION
107.
a) The Company may by special resolution resolve to be registered by way
of continuation in a jurisdiction outside the Cayman Islands or such
other jurisdiction in which it is for the time being incorporated,
registered or existing;
b) In furtherance of a resolution adopted pursuant to sub-clause (a) of
this Regulation, the Directors may cause an application to be made to
the Registrar of Companies to deregister the Company in the Cayman
Islands or such other jurisdiction in which it is for the time being
incorporated. registered or existing and may cause all such further
steps as they consider appropriate to be taken to effect the transfer
by way of continuation of the Company.
NAME, ADDRESS AND DESCRIPTION
OF SUBSCRIBER
Peter D. Lawson
Box 265G,
Grand Cayman /s/Peter D. Lawson
Peter D. Lawson
Attorney-at-Law
6 April, 1995
/s/ L. Day
Witness to the above signature: L. Day
Address: P.O. Box 265G, Grand Cayman
Occupation: Secretary
CERTIFIED TO BE A TRUE AND CORRECT COPY
SIG /S/Cindy Y. Jefferson
CINDY Y. JEFFERSON
Dep. Registrar of Companies
DATE: April 6th 1995
Exhibit B-25(b)
THE COMPANIES LAW (REVISED)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
ENTERGY POWER HOLDING I, LTD.
REGISTERED AND FILED
AS NO. 59230 THIS 6th DAY
OF April 1995
/S/ Cindy Y. Jefferson
DEP. REGISTRAR OF COMPANIES
CAYMAN ISLANDS
1. The name of the Company is ENTERGY POWER HOLDING I, LTD..
2. The Registered Office of the Company will be situate at the offices of
Caledonian Bank & Trust Limited, Ground Floor, Caledonian House, Mary
Street, P.O. Box 1043, George Town, Grand Cayman, Cayman Islands or at such
other location as the Directors may from time to time determine.
3. The objects for which the Company is established are unrestricted and
the Company shall have full power and authority to carry out any object not
prohibited by any law as provided by Section 6(4) of The Companies Law
(Revised).
4. The Company shall have and be capable of exercising all the functions
of a natural person of full capacity irrespective of any question of
corporate benefit as provided by Section 26(2) of The Companies Law
(Revised).
5. Nothing in the preceding sections shall be deemed to permit the
Company to carry on the business of a Bank or Trust Company without being
licensed in that behalf under the provisions of the Banks and Trust
Companies Law, 1989, or to carry on Insurance Business from within the
Cayman Islands or the business of an Insurance Manager, Agent, Sub-agent or
Broker without being licensed in that behalf under the provisions of the
Insurance Law, 1979 (as amended), or to carry on the business of Company
Management without being licensed in that behalf under the provisions of
the Companies Management Law, 1984.
6. The Company will not trade in the Cayman Islands with any person, firm
or corporation except in furtherance of the business of the Company carried
on outside the Cayman Islands; Provided that nothing in this section shall
be construed as to prevent the Company effecting and concluding contracts
in the Cayman Islands, and exercising in the Cayman Islands all of its
powers necessary for the carrying on of its business outside the Cayman
Islands.
7. The liability of the members is limited.
8. The capital of the Company is US$50,000.00 divided into 50,000 shares
of a nominal or par value of US$1.00 each provided always that subject to
the provisions of The Companies Law (Revised) and the Articles of
Association the Company shall have power to redeem or purchase any of its
shares and to sub-divide or consolidate the said shares or any of them and
to issue all or any part of its capital whether original, redeemed,
increased or reduced with or without any preference, priority or special
privilege or subject to any postponement of rights or to any conditions or
restrictions whatsoever and so that unless the conditions of issue shall
otherwise expressly provide every issue of shares whether stated to be
Ordinary, Preference or otherwise shall be subject to the powers on the
part of the Company hereinbefore provided.
9. The Company may exercise the power contained in Section 217 of The
Companies Law (Revised) to deregister in the Cayman Islands and be
registered by way of continuation in some other jurisdiction.
The undersigned, whose name, address and description is subscribed, is
desirous of being formed into a Company in pursuance of this Memorandum of
Association, and agrees to take the number of shares in the capital of the
Company set opposite his name.
NAME, ADDRESS AND DESCRIPTION NUMBER OF SHARES TAKEN BY
OF SUBSCRIBER SUBSCRIBER
Peter D. Lawson ONE SHARE
P.O. Box 265G,
Grand Cayman
/s/Peter D. Lawson
Peter D. Lawson
Attorney-at-Law
6 April, 1995
/s/ L. Day
Witness to the above signature: L. Day
Address: P.O. Box 265G, Grand Cayman
Occupation: Secretary
CERTIFIED TO BE A TRUE AND CORRECT COPY
SIG. /S/ Cindy Y. Jefferson
CINDY Y. JEFFERSON
Dep. Registrar of Companies
DATE April 6th 1995
Exhibit B-26(a)
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE
OF AMENDMENT OF "ENTERGY POWER ASIA LTD.", CHANGING ITS NAME FROM "ENTERGY
POWER ASIA LTD." TO "EP EDEGEL, INC.", FILED IN THIS OFFICE ON THE
THIRTIETH DAY OF JUNE, A.D. 1994, AT 4 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/Edward J. Freel
SECRETARY OF STATE
2367471 8100 AUTHENTICATION: 7169048
944121551 DATE: 07-01-94
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
ENTERGY POWER ASIA LTD.
I, the undersigned, being the incorporator of Entergy Power Asia
Ltd., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware,
D0 HEREBY CERTIFY:
FIRST: That the FIRST paragraph of the Certificate of Incorporation
may be and it hereby is amended to read as follows: "The name of the
Corporation is EP EDEGEL, Inc."
SECOND: That the corporation has not received any payment for any of
its stock.
THIRD: That the amendment has duly adopted in accordance with the
provisions of section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, I have signed this certificate this 30th day of
June, 1994.
Incorporator:
/s/James E. Hathaway, III
James E. Hathaway, III
Twenty-Second Floor
111 Center Street
Little Rock, Arkansas 72201
<PAGE>
State of Delaware
Office of the Secretary of State
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE
OF AMENDMENT OF "ENTERGY PUERTO RICO POWER I CORPORATION", CHANGING ITS
NAME FROM "ENTERGY PUERTO RICO POWER I CORPORATION" TO "ENTERGY POWER ASIA
LTD.", FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF APRIL, A.D. 1994, AT
3:45 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/William T. Quillen
William T. Quillen, Secretary of State
2367471 8100 AUTHENTICATION: 7092790
944066632 DATE: 04-19-94
<PAGE>
CERTIFICATE OF AMENDMENT
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
ENTERGY PUERTO RICO POWER I CORPORATION
I, the undersigned, being the incorporator of Entergy Puerto Rico
Power I Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST: That the FIRST paragraph of the Certificate of Incorporation
be and it hereby is amended to read as follows: "The name of the
Corporation is Entergy Power Asia Ltd."
SECOND: That the corporation has not received any payment for any
of its stock.
THIRD: That the amendment was duly adopted in accordance with the
provisions of section 241 of the General Corporation Law of the State of
Delaware.
<PAGE>
IN WITNESS WHEREOF, I have signed this certificate this 18th day of
April, 1994
Incorporator:
/s/James E. Hathaway, III
James E. Hathaway, III
Twenty-Second Floor
111 Center Street
Little Rock, Arkansas 72201
<PAGE>
State of Delaware
Office of the Secretary of State
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF INCORPORATION OF "ENTERGY PUERTO RICO POWER I CORPORATION"
FILED IN THIS OFFICE ON THE SEVENTH DAY OF JANUARY, A.D. 1994, AT 4:30
O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * *
/s/William T. Quillen
William T. Quillen, Secretary of State
AUTHENTICATION: *4235455
724007053 DATE: 01/10/94
<PAGE>
CERTIFICATE OF INCORPORATION
OF
ENTERGY PUERTO RICO POWER I CORPORATION
THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST: The name of the Corporation is Entergy Puerto Rico Power I
Corporation.
SECOND: The registered office of the Corporation is to be located at
1209 Orange Street, in the City of Wilmington, in the County of New
Castle, in the State of Delaware. The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the
General Corporation Law of Delaware as presently in effect as may
hereinafter be amended.
FOURTH: The total number of shares of capital stock which the
Corporation is authorized to issue is 1,000 shares of capital stock
having no par value per share and of one class; such class is hereby
designated as common stock.
FIFTH: No stockholder shall be entitled as a matter of right to
subscribe for, purchase or receive any shares of the stock or any
rights or options of the Corporation which it may issue or sell,
whether out of the number of shares authorized by this Certificate of
Incorporation or by amendment thereof or out of the shares of the
stock of the Corporation acquired by it after issuance thereof, nor
shall any stockholder be entitled as a matter of right to purchase or
subscribe for or receive any bonds, debentures or other obligations
which the Corporation may issue or sell that shall be convertible into
or exchangeable for stock or to which shall be attached or appertain
any warrant to warrants or other instrument or instruments that shall
confer upon the holder or owner of such obligation the right to
subscribe for or purchase from the Corporation any shares of its
capital stock, but all such additional issues of stock, right,
options, or of bonds, debentures or other obligations convertible into
or exchangeable for stock or to which warrants shall be attached or
appertain or which shall confer upon the holder the right to
subscribe for or purchase any shares of stock may be issued and
disposed of by the Board of Directors to such persons and upon such
terms as in their absolute discretion they may deem advisable,
subject only to such limitations as may be imposed in this Certificate
of Incorporation or in any amendment thereto.
SIX: An annual meeting of stockholders shall be held for the election
of Directors and the transaction of such other business as may
properly come before said meeting. Special meetings of the
stockholders of the Corporation shall be held whenever called in the
matter required by the laws of the State of Delaware for purposes as
to which there are special statutory provisions, and for other
purposes whenever called by resolution of the Board of Directors, or
by the Chairman of the Board, the President, or the holders of a
majority of the issued and outstanding shares of the common stock of
the Corporation. Except as otherwise provided herein, any such annual
or special meeting of stockholders shall be held on a date and at a
time and place as may be designated by or in the manner provided in
the By-Laws.
SEVENTH: The name and mailing address of the Incorporator is James E.
Hathaway Twenty-Second Floor, 111 Center Street, Little Rock, Arkansas
72201.
EIGHTH: The number of Directors which .shall constitute the whole
Board shall be not less than one; (l) nor more than ten (l()). Within
such limit, the number of Directors shall he fixed and may be altered
from time to time, as provided in the By-Laws. Election of Directors
need not be by ballot unless the By-Laws so provide. Directors need
not be stockholders. Directors shall be elected at the annual meeting
of the stockholders of the Corporation. except as herein provided, to
serve until the next annual meeting of stockholders and until their
respective successors arc duly elected and have qualified Vacancies
occurring among the Directors (other khan in the case of removal of a
Director) shall be filled by a majority vote of the Directors then in
office with the consent of the holders of a majority of the issued
and outstanding common stock of the Corporation. or by the sole
remaining Director with the consent of the holders of a majority of
the issued and outstanding common stock of the Corporation, or by
resolution duly adopted by the holders of a majority of the issued and
outstanding common stock of the Corporation. at a special meeting held
for such purpose. or by action taken in lieu of such meeting, or at
the next annual meeting of stockholders following any vacancy. At any
meeting of stockholders of the Corporation called for the purpose, the
holders of a majority of the issued and outstanding shares of the
common stock or the Corporation may remove from office, with or
without , any or all of the Directors and the successor of any
Director so removed shall be elected by the holders of a majority of
the issued and outstanding common stock of the Corporation at such
meeting or at a later meeting.
NINTH: All corporate powers shall be exercised by the Board of
Directors of the Corporation except as otherwise provided by law or
by this Certificate of Incorporation or by any By-Laws from time to
time passed by the stockholders (provided, however, that no By-Law so
created shall invalidate any prior aa of the Directors which was
valid in the absence of such By-Law). In furtherance and not in
limitation of the powers conferred by law, the Board of Directors is
expressly authorized (a) to make, alter, amend, and repeal the By-Laws
of the Corporation. subject to the power of the stockholders to
alter, amend or repeal such By-Laws; (b) to authorized and cause to be
executed mortgages and liens upon all or any part of the property of
the Corporation; (c) to determine the use and disposition of any
surplus or net profits; and (d) to fix the times for the declaration.
and payment of dividends.
TENTH: Directors, as such, shall not receive any stated salary for
heir services, but, by resolution of the Board of Directors, a fixed
sum and expenses of attendance, if any, may be allowed for attendance
at each regular, special or committee meeting of the Board; provided
that nothing herein contained shall be construed to preclude any
Director from serving the Corporation in any other capacity and
receiving compensation therefor.
ELEVENTH: When and as authorized by the affirmative vote of the
holders of a majority of the common stock of the Corporation, issued
and outstanding, given at a stockholders' meeting duly called for
that purpose, or when authorized by the written consent of the holders
of a majority of the common stock of the Corporation issued and
outstanding, the Board of Directors may cause the Corporation to
sell, lease or exchange all or substantially all, of its property and
assets, including its good will and its corporate franchises, upon
such terms and conditions and for such consideration, which may be
whole or in part shares of stock in, and/or other securities of, any
other corporation or corporations, as the Board of Directors shall
deem expedient and for the best interests of the Corporation.
TWELFTH: The Board of Directors may not cause the Corporation to merge
or consolidate with or into any other corporation or corporations,
unless such merger or consolidation shall have been authorized by the
affirmative vote of the holders of a majority of the common stock of
the Corporation, issued and outstanding, given at a stockholders'
meeting called for that purpose or authorized by the written consent
of the holders of a majority of the common stock of the Corporation
issued and outstanding.
THIRTEENTH: To the fullest permitted by the laws of the State of
Delaware, or any other applicable law presently or hereafter in
affect, a Director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for or with
respect to any acts or omissions in the performance of his duties.
Any repeal or modifications of the foregoing paragraph by
the stockholders of the Corporation shall not adversely affect any
right or protection of a Director or the Corporation existing at the
time of such repeal or modification.
FOURTEENTH If after the date of adoption of this Certificate of
Incorporation any provision of this Certificate of Incorporation is
invalidated on any grounds by any court of competent jurisdiction,
then only such provision shall be deemed inoperative and null and void
and the remainder of this Certificate of Incorporation shall not be
affected thereby.
FIFTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation
in the manner now or hereafter prescribed by law, and all rights and
powers conferred herein on stockholders, Directors and officers are
subject to this reserved power.
<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand the 7th day of
January, 1994.
Incorporator:
/s/James E. Hathaway, III
James E. Hathaway, III
Twenty-Second Floor
111 Center Street
Little Rock, AR 72201
In the presence of:
Exhibit B-26(b)
BY-LAWS
OF
EP EDEGEL, Inc.
ARTICLE I
Offices
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation also
may have offices at such other places, both within and without the State of
Delaware, as from time to time may be designated by the Board of Directors.
ARTICLE II
Books
The books and records of the Corporation may be kept (except as
otherwise provided by the laws of the State of Delaware) outside the State
of Delaware and at such place or places as from time to time may be
designated by the Board of Directors.
ARTICLE III
Meetings of Stockholders
Section 1. Annual Meetings. Each annual meeting of the
stockholders shall be held (i) at a time fixed by the Board of Directors,
on the third Friday in May, if not a legal holiday; (ii) if a legal
holiday, then at the same time on the next business day which is not a
legal holiday; or (iii) at such date and time during such calendar year as
shall be stated in the notice of the meeting or in a duly executed waiver
of notice thereof. The annual meeting of the stockholders shall be held at
the principal business office of the Corporation or at such other place or
places either within or without the State of Delaware as may be designated
by the Board of Directors and stated in the notice of the meeting At each
such meeting, the stockholders shall elect by a plurality vote a Board of
Directors, and transact such other business as may come before the meeting.
Written notice of the time and place designated for the annual
meeting of the stockholders of the Corporation shall be delivered
personally or mailed to each stockholder entitled to vote thereat not less
than ten (10) and not more than sixty (60) days prior to said meeting, but
at any meeting at which all stockholders shall be present, or of which all
stockholders not present have waived notice in writing, the giving of
notice as above described may be dispensed with. If mailed, said notice
shall be directed to each stockholder at his address as the same appears on
the stock ledger of the Corporation unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for
him be mailed to some other address, in which case it shall be mailed to
the address designated in such request.
Section 2. Special Meetings. Special meetings of the stockholders
of the Corporation shall be held whenever called in the manner required by
the laws of the State of Delaware for purposes as to which there are
special statutory provisions, and for such other purposes as required or
permitted by the Certificate of Incorporation or otherwise, whenever called
by resolution of the Board of Directors, or by the Chairman of the Board,
the President, or the holders of a majority of the issued and outstanding
shares of the common stock of the Corporation. Any such special meeting of
stockholders may be held at the principal business office of the
Corporation or at such other place or places, either within or without the
State of Delaware, as may be specified in the notice thereof. Business
transacted at any special meeting of stockholders of the Corporation shall
be limited to the purposes stated in the notice thereof. Except as
otherwise expressly required by the laws of the State of Delaware or the
Certificate of Incorporation, written notice of each special meeting,
stating the day, hour and place, and in general terms the business to be
transacted thereat, shall be delivered personally or mailed to each
stockholder entitled to vote thereat not less than ten (10) and not more
than sixty (60) days before the meeting. If mailed, said notice shall be
directed to each stockholder at his address as the same appears on the
stock ledger of the Corporation unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for
him be mailed to some other address, in which case it shall be mailed to
the address designated in said request. At any special meeting at which all
stockholders shall be present, or of which all stockholders not present
have waived notice in writing, the giving of notice as above described may
be dispensed with.
Section 3. Quorum. At any meeting of the stockholders of the
Corporation, except as otherwise expressly provided by the laws of the
State of Delaware or the Certificate of Incorporation, there must be
present, either in person or by proxy, in order to constitute a quorum,
stockholders owning a majority of the issued and outstanding shares of the
common stock of the Corporation entitled to vote at said meeting. At any
meeting of stockholders at which a quorum is not present, the holders of,
or proxies for, a majority of the common stock which is represented at such
meeting, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting.
Section 4. Voting. Each holder of record of the common stock of
the Corporation shall, at every meeting of the stockholders of the
Corporation, be entitled to one (1) vote for each share of common stock
standing in his name on the books of the Corporation, and such votes may be
cast either in person or by proxy, appointed by an instrument in writing,
subscribed by such stockholder or by his duly authorized attorney, and
filed with the Secretary before being voted on, but no proxy shall be voted
after three (3) years from its date, unless said proxy provides for a
longer period. Except as otherwise required by the laws of the State of
Delaware or the Certificate of Incorporation, the holders of the common
stock of the Corporation shall exclusively possess all voting power for the
election of Directors and for all other purposes and are entitled to vote
on each matter to be voted on at a stockholders' meeting.
The vote on all elections of Directors and other questions before
the meeting need not be by ballot, except upon demand by the holders of the
majority of the shares of the common stock of the Corporation present in
person or by proxy.
When a quorum is present at any meeting of the stockholders of
the Corporation, the vote of the holders of a majority of the shares of the
common stock of the Corporation and present in person or represented by
proxy shall decide any question brought before such meeting, unless the
question is one upon which, under any provision of the laws of the State of
Delaware or of the Certificate of Incorporation, a different vote is
required, in which case such provision shall govern and control the
decision of such question.
Whenever the vote of the holders of the common stock of the
Corporation at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provision of the laws of the
State of Delaware or of the Certificate of Incorporation, such corporate
action may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding common stock of the Corporation having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented thereto
Section 5. List of Stockholders. The officer of the Corporation
who shall have charge of the stock ledger of the Corporation shall prepare
and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting,
arranged in alphabetical order and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours for a period of at
least ten (10) days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held The list also shall be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 6. Organization. The Chairman of the Board or the
President, or in their absence, any Vice President, shall call to order
meetings of the stockholders and shall act as chairman of such meetings.
The Board of Directors or the stockholders may appoint any stockholder or
any Director or officer of the Corporation to act as chairman of any
meeting in the absence of the Chairman of the Board, the President and all
of the Vice Presidents. The Secretary of the Corporation shall act as
secretary of all meetings of the stockholders, but in the absence of the
Secretary the presiding officer may appoint any other person to act as
secretary of any meeting.
ARTICLE IV
Directors
Section 1. Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors which may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation; subject, nevertheless, to the provisions of the laws of the
State of Delaware, the Certificate of Incorporation, and any By-Laws from
time to time passed by the stockholders; provided, however, that no By-Law
so created shall invalidate any prior act of the Directors which was valid
in the absence of such By-Law.
Section 2. Number of Directors. The number of Directors which
shall constitute the whole Board shall be not less than one (1) nor more
than ten (10). Within such limits, the number of Directors may be fixed
from time to time by vote of the stockholders or of the Board of Directors
at any regular or special meeting. Directors need not be stockholders.
Directors shall be elected at the annual meeting of the stockholders of the
Corporation, except as herein provided, to serve until the next annual
meeting of stockholders and until their respective successors are duly
elected and have qualified.
Section 3 Vacancies. Vacancies occurring among the Directors
(other than in the case of removal of a Director) shall be filled by a
majority vote of the Directors then in office with the consent of the
holders of a majority of the issued and outstanding common stock of the
Corporation, or by the sole remaining Director with the consent of the
holders of a majority of the issued and outstanding common stock of the
Corporation, or by resolution duly adopted by the holders of a majority of
the issued and outstanding common stock of the Corporation, at a special
meeting held for such purpose, or by action taken in lieu of such meeting,
or at the next annual meeting of stockholders following any vacancy.
Section 4. Removal. At any meeting of stockholders of the
Corporation called for the purpose, the holders of a majority of the issued
and outstanding shares of the common stock of the Corporation may remove
from office, with or without cause, any or all of the Directors and the
successor of any Director so removed shall be elected by the holders of a
majority of the issued and outstanding common stock of the Corporation at
such meeting or at a later meeting.
Section 5. Meetings. The first meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting
of stockholders and at the same place at which regular meetings of the
Board of Directors are held, or at such other time and place as may be
provided by resolution of the Board of Directors, and no notice of such
meeting shall be necessary to the newly elected Directors in order legally
to constitute a meeting, provided a quorum is present. In the event that
such first meeting of the newly elected Board of Directors is not held at
the time and place authorized by the foregoing provision, the meeting may
be held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as
shall be specified in a written waiver signed by all the Directors. Regular
meetings of the Board of Directors may be held without notice at such time
and place, either within or without the State of Delaware, as shall from
time to time be determined by resolutions of the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman of
the Board or by the President on reasonable notice as provided in these
By-Laws, and such meetings shall be held at the principal business office
of the Corporation or at such other place or places, either within or
without the State of Delaware, as shall be specified in the notice thereof
Directors present thereat, by majority vote, may adjourn the meeting from
time to time, without notice other than an announcement at the meeting,
until a quorum shall be present. Except as may be otherwise specifically
provided by the laws of the State of Delaware, the Certificate of
Incorporation or these By-Laws, the affirmative vote of a majority of the
Directors present at the time of such vote shall be the act of the Board of
Directors if a quorum is present.
Section 6. Notice of Meetings. Notice of any meeting of the Board
of Directors requiring notice shall be given to each Director by personal
delivery or by mail or by telegram, in any case at least forty-eight (48)
hours before the time fixed for the meeting. At any meeting at which all
Directors shall be present, or at which all Directors not present have
waived notice in writing, the giving of notice as above described may be
dispensed with. Attendance of a Director at a meeting shall constitute
waiver of notice of such meeting, except when such Director attends such
meeting for the express purpose of objecting, at the beginning of such
meeting, to the transaction of any business because such meeting is not
lawfully called or convened.
Section 7. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if all members of the Board consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of
the Board.
Section 8. Telephonic Meetings. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, members of the Board of
Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment by means of which all persons
participating in such meeting can hear each other, and participation in a
meeting pursuant to this Section 8 of Article IV shall constitute presence
in person at such meeting.
Section 9. Resignations. Any Director of the Corporation may
resign at any time by giving written notice to the Board of Directors or to
the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the tune be not specified, upon receipt thereof; and unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
ARTICLE V
Executive Committee and Other Committees
Section 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, appoint an
Executive Committee of not less than two or more than five members, to
serve during the pleasure of the Board of Directors, to consist of the
Chairman of the Board, and such additional Director(s) as the Board of
Directors may from time to time designate. The Chairman of the Board of the
Corporation shall be Chairman of the Executive Committee.
Section 2. Procedure. The Executive Committee shall meet at the
call of the Chairman of the Executive Committee or of any two members. A
majority of the members shall be necessary to constitute a quorum and
action shall be taken by a majority vote of those present.
Section 3. Powers and Reports. During the intervals between the
meetings of the Board of Directors, the Executive Committee shall possess
and may exercise, to the fullest extent permitted by law, all the powers of
the Board of Directors in the management and direction of the business and
affairs of the Corporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it. The taking of action by
the Executive Committee shall be conclusive evidence that the Board of
Directors was not in session when such action was taken. The Executive
Committee shall keep regular minutes of its proceedings and all action by
the Executive Committee shall be reported to the Board of Directors at its
meeting next following the meeting of the Executive Committee and shall be
subject to revision or alteration by the Board of Directors; provided, that
no rights of third parties shall be affected by such revision or
alteration.
Section 4. Other Committees. From time to time the Board of
Directors, by the affirmative vote of a majority of the whole Board of
Directors, may appoint other committees for any purpose or purposes, and
such committees shall have such powers as shall be conferred by the
resolution of appointment In the absence or disqualification of a member of
any committee (including the Executive Committee), the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any such absent
or disqualified member.
ARTICLE VI
Officers
Section 1. Number. Election and Term of Office. The Board of
Directors may elect a Chairman of the Board, a Chief Executive Officer,
and/or a Chief Operating Officer, and shall elect a President, a Secretary,
a Treasurer, and in their discretion, one or more Vice Presidents. The
Chief Executive Officer or, if no Chief Executive Officer is elected, the
President, subject to the direction of the Board of Directors, shall have
direct charge of and general supervision over the business and affairs of
the Corporation. The officers of the Corporation shall be elected annually
by the Board of Directors at its meeting held immediately after the annual
meeting of the stockholders (other than the initial officers elected by
unanimous consent of the initial Board of Directors), and each shall hold
his office until his successor shall have been duly elected and qualified
or until he shall have died or resigned or shall have been removed by
majority vote of the entire Board of Directors. Any number of offices may
be held by the same person. The Board of Directors may from time to time
appoint such other officers and agents as the interest of the Corporation
may require and may fix their duties and terms of office.
Section 2. Chairman of the Board. The Chairman of the Board shall
be a member of the Board of Directors. He shall preside at all meetings of
the Board of Directors, and shall have such other duties as from time to
time may be assigned to him by the Board of Directors, by the Executive
Committee or, if the President shall have been designated chief executive
officer of the Corporation, by the President.
Section 3 President The President shall perform all duties
incident to the office of a president of a corporation and such other
duties as from time to time may be assigned to him by the Board of
Directors or by the Executive Committee, or if the Chairman of the Board
shall have been designated chief executive officer of the Corporation, by
the Chairman of the Board. At any time when the office of the Chairman of
the Board shall be vacant or if the Board of Directors shall not elect a
Chairman of the Board, the President of the Corporation shall be the chief
executive officer of the Corporation.
Section 4. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties and from time to time may be conferred
upon or assigned to him by the Board of Directors or as may be delegated to
him by the Chairman of the Board (if chief executive officer) or the
President.
Section 5. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books
provided for the purpose; shall see that all notices are duly given in
accordance with the provisions of the law and these By-Laws; shall be
custodian of the records and of the corporate seal of the Corporation;
shall see that the corporate seal is affixed to all documents the execution
of which under the seal is duly authorized, and when the seal is so affixed
may attest the same; may sign, with the Chairman of the Board (if chief
executive officer), the President or a Vice President, certificates of
stock of the Corporation; and in general, shall perform all duties incident
to the office of a secretary of a corporation, and such other duties as
from time to time may be assigned by the Chairman of the Board (if chief
executive officer), the President or the Board of Directors.
The Secretary shall also keep, or cause to be kept, a stock book,
containing the names, alphabetically arranged, of all persons who are
stockholders of the Corporation, showing their places of residence, the
number of shares held by them respectively, and the time when they
respectively became owners thereof.
Section 6. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of
the Corporation, all moneys or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected by
the Board of Directors or by the Treasurer if so authorized by the Board of
Directors; may endorse for collection on behalf of the Corporation, checks,
notes and other obligations; may sign receipts and vouchers for payments
made to the Corporation; singly or jointly with another person as the Board
of Directors may authorize, may sign checks on the Corporation and pay out
and dispose of the proceeds under the direction of the Board; shall render
or cause to be rendered to the Chairman of the Board (if chief executive
officer), the President and the Board of Directors, whenever requested, an
account of the financial condition of the Corporation; may sign, with the
Chairman of the Board (if chief executive officer), the President or a Vice
President, certificates of stock of the Corporation; and in general, shall
perform all the duties incident to the office of a treasurer of a
corporation, and such other duties as from time to time may be assigned by
the Chairman of the Board (if chief executive officer), the President or
the Board of Directors.
Section 7. Subordinate Officers. The Board of Directors may
appoint such assistant secretaries, assistant treasurers and other
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to
time, authorize the chief executive officer to appoint and remove
subordinate officers and to prescribe the powers and duties thereof.
Section 8. Transfer of Duties. The Board of Directors in its
absolute discretion may transfer the power and duties, in whole or in part,
of any officer to any other officer, or persons, notwithstanding the
provisions of these By-Laws, except as otherwise provided by the laws of
the State of Delaware.
Section 9. Vacancies. Absences. If the office of Chairman of the
Board, President, Vice President, Secretary or Treasurer, or of any other
officer or agent becomes vacant for any reason, the Board of Directors may,
but is not required to, choose a successor to hold office for the remainder
of the unexpired term. Except when the law requires the act of a particular
officer, the Board of Directors whenever necessary may, in the absence of
any officer, designate any other officer or properly qualified employee, to
perform the duties of the one absent for the time being, and such
designated officer or employee shall have, when so acting, all the powers
herein given to such absent officer.
Section 10. Removals. At any meeting of the Board of Directors
called for the purpose, any officer or agent of the Corporation may be
removed from office, with or without cause, by the affirmative vote of a
majority of the entire Board of Directors.
Section 11. Resignations. Any officer or agent of the Corporation
may resign at any time by giving written notice to the Board of Directors,
the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time is not specified, upon receipt thereof; and unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
Section 12. Compensation of Officers. The officers shall receive
such salary or compensation as may be determined by the affirmative vote of
the majority of the Board of Directors. No officer shall be prevented from
receiving such salary or compensation by reason of the fact that he is also
a Director of the Corporation.
ARTICLE VII
Contracts. Checks and Notes
Unless the Board of Directors shall otherwise specifically
direct, all contracts, checks, drafts, bills of exchange and promissory
notes and other negotiable instruments of the Corporation shall be executed
in the name of the Corporation by the Chairman of the Board, the President,
a Vice President, Secretary or Treasurer or any officer as may be
designated by the Board of Directors.
ARTICLE VIII
Capital Stock
Section I Certificates of Stock The certificates for shares of
the stock of the Corporation shall be in such form, not inconsistent with
the Certificate of Incorporation, as shall be prepared or approved by the
Board of Directors. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by, or in the name of the
Corporation, by the Chairman of the Board (if chief executive officer), the
President or a Vice President, and by the Treasurer or the Secretary
certifying the number of shares owned by him and the date of issue; and no
certificate shall be valid unless so signed. All certificates shall be
consecutively numbered and shall be entered in the books of the Corporation
as they are issued. All signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he
were such officer, transfer agent or registrar at the date of issue.
Section 2. Transfer of Stock. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. Registered Stockholders. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as
the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to, or interest in, such share or
shares on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of
the State of Delaware.
Section 4. Lost Certificates Any person claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of the
fact and advertise the same in such manner as the Board of Directors may
require, and the Board of Directors, in its discretion, may require the
owner of the lost or destroyed certificate, or his legal representative, to
give the Corporation a bond in a sum sufficient, in the opinion of the
Board of Directors, to indemnify the Corporation against any claim that may
be made against it on account of the alleged loss of any such certificate.
A new certificate of the same tenor and for the same number of shares as
the one alleged to be lost or destroyed may be issued without requiring any
bond when, in the judgment of the Directors, it is proper so to do.
Section 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise
any rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
ARTICLE IX
Dividends
Dividends upon the common stock of the Corporation may be
declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares
of the common stock of the Corporation, subject to the provisions of the
Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sums as the Directors
from time to time, in their absolute discretion, think proper as a reserve
or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in
the manner in which it was created.
ARTICLE X
Waiver of Notice
Whenever any notice whatever is required to be given by statute
or under the provisions of the Certificate of Incorporation or these
By-Laws, a waiver thereof in writing signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be equivalent thereto, unless expressly provided otherwise in such
statute, Certificate of Incorporation or these By-Laws.
ARTICLE XI
Seal
The corporate seal of the Corporation shall have inscribed
thereon the name of the Corporation, the year of its organization and the
words "Corporate Seal, Delaware", or shall be in such other form as the
Board of Directors may prescribe.
ARTICLE XII
Fiscal Year
The fiscal year of the Corporation shall be the calendar year.
ARTICLE XIII
Indemnification; Advancement of Expenses;
Insurance and Other Funding Arrangements
Section 1. Mandatory Indemnification - Third Party Actions. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding ("Action"), whether civil, criminal,
administrative or investigative (other than an Action by or in the right of
the Corporation) by reason of the fact that he is or was a Director,
officer or employee of the Corporation, or is or was serving at the request
of the Corporation as a Director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonable incurred by him in connection with such
Action if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal Action, had no reasonable cause to believe his
conduct was unlawful. The termination of any Action by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interest of the Corporation, and, with respect
to any criminal Action, had reasonable cause to believe that his conduct
was unlawful. The right to indemnification under this Section 1 of Article
XIII shall be a contract right that may be enforced in any lawful manner by
a person entitled to such indemnification.
Section 2. Mandatory Indemnification - Derivative Actions. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
Action by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a Director, officer or
employee of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, or employee of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such Action if he acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation and except that no indemnification
under these By-Laws shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation, unless and only to the extent that the Court of Chancery of
the State of Delaware or the court in which such Action was brought, shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
The right to indemnification under this Section 2 of Article XII shall be a
contract right that may be enforced in any lawful manner by a person
entitled to such indemnification.
Section 3. Mandatory Indemnification - Successful Party. To the
extent that a Director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any Action
referred to in Sections I or 2 of this Article XIII, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith. The right to indemnification under this Section 3 of
Article XIII shall be a contract right that may be enforced in any lawful
manner by a person entitled to such indemnification.
Section 4 Permissive Indemnification. Except as otherwise
expressly provided in Section 2 of this Article XIII, the Corporation may
also indemnify any person who is or was a party or is threatened to be made
a party to any Action by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against all or part of any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such Action if it shall be determined in accordance
with the applicable procedures set forth in Section 5 that such person is
fairly and reasonably entitled to such indemnification.
Section 5. Procedure. Any indemnification under the foregoing
provisions of this Article XIII (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2, or is entitled to
indemnification under Section 4, of this Article XIII. Such determination
shall be made (i) by the Board of Directors by a majority vote of a quorum,
as defined in the Certificate of Incorporation or these By-Laws, consisting
of Directors who are not or were not parties to any pending or completed
Action giving rise to the proposed indemnification, or (ii) if such a
quorum is not obtainable or, even if obtainable, a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
Section 6. Advance Payments. Expenses (including attorneys' fees)
incurred or reasonably expected to be incurred by a Director or officer of
the Corporation in defending any Action referred to in Sections 1 or 2 of
this Article XIII shall be paid by the Corporation in advance of the final
determination thereof upon receipt by the Corporation of his written
request therefor and his written promise to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized or required by this Article XIII. The right of
Directors and officers to advancement of expenses under this Section 6 of
Article XIII shall be a contract right that may be enforced in any lawful
manner by a Director or officer of the Corporation. Such expenses incurred
by other employees and agents may be paid upon such terms and conditions,
if any, as the Board of Directors deems appropriate.
Section 7. Provisions Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article
shall not be deemed exclusive of any other rights to which any person
seeking indemnification and advancement of expenses, may be entitled under
any law, by-law, agreement, vote of stockholders or disinterested Directors
or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a Director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a Director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Article XIII.
Section 9 Other Arrangements. The Corporation also may obtain a
letter of credit, act as a self-insurer, create a reserve, trust, escrow,
cash collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or properties
of the Corporation, or use any other mechanism or arrangement whatsoever in
such amounts, at such costs, and upon such other terms and conditions as
the Board of Directors shall deem appropriate for the protection of any or
all such persons.
Section 10. Severability. If this Article XIII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
as to whom the Corporation has agreed to grant indemnity, as to liabilities
and expenses, and amounts paid or to be paid in settlement with respect to
any proceeding, including an action by or in the right of the Corporation,
to the full extent permitted by any applicable portion of this Article XIII
that shall not have been invalidated and to the full extent permitted by
applicable law.
Section 11. Miscellaneous. (a) For the purposes of this Article
XIII, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger, as well as the resulting or
surviving corporation, so that any person who is or was a Director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as a Director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article XIII with respect to the resulting or
surviving corporation as he would if he had served the resulting or
surviving corporation in the same capacity.
(b) For purposes of this Article XIII, references to "other
enterprises" shall include employee benefit plans; references to "fines'
shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any services as a Director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by,
such Director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good faith in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article XIII.
(c) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article XIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE XIV
General Provisions
Section 1 The Chairman of the Board, the President, any Vice
President or the Treasurer of the Corporation may attend any meeting of the
holders of stock or other securities of any other corporation, any of whose
stock or other securities are held by the Corporation, and cast the votes
which the Corporation is entitled to cast as a stockholder or otherwise at
such meeting, or may consent in writing to any action by any such
corporation, and may execute on behalf of the Corporation and under its
corporate seal, or otherwise, such written proxies, consents, waivers or
other instruments as he may deem necessary or appropriate. Any of the
foregoing acts or functions may also be performed by any one or more of
such persons as shall from time to time be authorized by the Board of
Directors or by a writing executed by the chief executive officer of the
Corporation.
Section 2 The moneys of the Corporation shall be deposited in the
name of the Corporation in such bank or banks or trust company or trust
companies as the Board of Directors shall from time to time designate, and
shall be drawn out only by signed checks or by telephonic or other
electronic advice given and subsequently confirmed by means which the bank
or trust company may require, by persons designated in a resolution or
resolutions of the Board of Directors or by such other persons designated
by a writing executed by persons authorized to so designate in a resolution
or resolutions of the Board of Directors.
Section 3. Notices to Directors and stockholders shall be in
writing and delivered personally or mailed to the Directors or stockholders
at their addresses appearing on the books of the Corporation. Notice by
mail shall be deemed to be given at the time when the same shall be mailed.
Notice to Directors may also be given by telegraph, and any such notice
shall be deemed to be given when delivered to an office of the transmitting
company with all charges prepaid.
Section 4. Alterations, amendments or repeals of these By-Laws,
or any of them, may be made by a majority of the stockholders entitled to
vote at any meeting thereof, if the notice of such meeting contains a
statement of the proposed alteration, amendment or repeal, or by the Board
of Directors by a majority vote of the whole Board of Directors at any
meeting thereof, provided notice of such alteration, amendment or repeal
has been given to each Director in writing. No notice of any alteration,
amendment or repeal need be given if adopted by action taken at a meeting
duly held on waiver of notice.
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100,009
160,500
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0
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<TOTAL-INTEREST-EXPENSE> 156,192
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0
<EARNINGS-AVAILABLE-FOR-COMM> 180,230
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<TABLE> <S> <C>
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<SUBSIDIARY>
<NUMBER> 010
<NAME> MISSISSIPPI POWER & LIGHT COMPANY
<MULTIPLIER> 1,000
<S> <C>
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<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
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<TOTAL-CURRENT-ASSETS> 281,482
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<COMMON> 199,326
<CAPITAL-SURPLUS-PAID-IN> (218)
<RETAINED-EARNINGS> 231,463
<TOTAL-COMMON-STOCKHOLDERS-EQ> 430,571
16,770
57,881
<LONG-TERM-DEBT-NET> 494,404
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<LONG-TERM-DEBT-CURRENT-PORT> 61,015
0
<CAPITAL-LEASE-OBLIGATIONS> 439
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 520,790
<TOT-CAPITALIZATION-AND-LIAB> 1,581,983
<GROSS-OPERATING-REVENUE> 889,843
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<OTHER-OPERATING-EXPENSES> 739,455
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<OTHER-INCOME-NET> 2,825
<INCOME-BEFORE-INTEREST-EXPEN> 119,497
<TOTAL-INTEREST-EXPENSE> 58,345
<NET-INCOME> 61,152
0
<EARNINGS-AVAILABLE-FOR-COMM> 61,152
<COMMON-STOCK-DIVIDENDS> 61,700
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 011
<NAME> NEW ORLEANS PUBLIC SERVICE INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 287,168
<OTHER-PROPERTY-AND-INVEST> 3,259
<TOTAL-CURRENT-ASSETS> 148,867
<TOTAL-DEFERRED-CHARGES> 156,912
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 596,206
<COMMON> 33,744
<CAPITAL-SURPLUS-PAID-IN> 36,306
<RETAINED-EARNINGS> 81,261
<TOTAL-COMMON-STOCKHOLDERS-EQ> 151,311
0
19,780
<LONG-TERM-DEBT-NET> 155,958
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<LONG-TERM-DEBT-CURRENT-PORT> 38,250
0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 230,907
<TOT-CAPITALIZATION-AND-LIAB> 596,206
<GROSS-OPERATING-REVENUE> 474,670
<INCOME-TAX-EXPENSE> 19,836
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<TOTAL-INTEREST-EXPENSE> 19,085
<NET-INCOME> 32,975
0
<EARNINGS-AVAILABLE-FOR-COMM> 32,975
<COMMON-STOCK-DIVIDENDS> 30,600
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 012
<NAME> SYSTEM ENERGY RESOURCES, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,667,176
<OTHER-PROPERTY-AND-INVEST> 40,927
<TOTAL-CURRENT-ASSETS> 161,246
<TOTAL-DEFERRED-CHARGES> 561,663
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 3,431,012
<COMMON> 789,350
<CAPITAL-SURPLUS-PAID-IN> 7
<RETAINED-EARNINGS> 85,920
<TOTAL-COMMON-STOCKHOLDERS-EQ> 875,277
0
0
<LONG-TERM-DEBT-NET> 1,219,917
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<LONG-TERM-DEBT-CURRENT-PORT> 250,000
0
<CAPITAL-LEASE-OBLIGATIONS> 44,107
<LEASES-CURRENT> 28,000
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,010,721
<TOT-CAPITALIZATION-AND-LIAB> 3,431,012
<GROSS-OPERATING-REVENUE> 605,639
<INCOME-TAX-EXPENSE> 77,410
<OTHER-OPERATING-EXPENSES> 291,934
<TOTAL-OPERATING-EXPENSES> 369,344
<OPERATING-INCOME-LOSS> 236,295
<OTHER-INCOME-NET> 6,287
<INCOME-BEFORE-INTEREST-EXPEN> 242,582
<TOTAL-INTEREST-EXPENSE> 149,543
<NET-INCOME> 93,039
0
<EARNINGS-AVAILABLE-FOR-COMM> 93,039
<COMMON-STOCK-DIVIDENDS> 0
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 016
<NAME> ENTERGY CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 0
<OTHER-PROPERTY-AND-INVEST> 6,354,267
<TOTAL-CURRENT-ASSETS> 148,205
<TOTAL-DEFERRED-CHARGES> 47,381
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<TOTAL-ASSETS> 6,549,853
<COMMON> 2,300
<CAPITAL-SURPLUS-PAID-IN> 4,201,483
<RETAINED-EARNINGS> 2,335,579
<TOTAL-COMMON-STOCKHOLDERS-EQ> 6,471,720
0
0
<LONG-TERM-DEBT-NET> 0
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0
<CAPITAL-LEASE-OBLIGATIONS> 0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 78,133
<TOT-CAPITALIZATION-AND-LIAB> 6,549,853
<GROSS-OPERATING-REVENUE> 549,144
<INCOME-TAX-EXPENSE> (5,383)
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<TOTAL-OPERATING-EXPENSES> 49,591
<OPERATING-INCOME-LOSS> 499,553
<OTHER-INCOME-NET> 20,641
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<TOTAL-INTEREST-EXPENSE> 214
<NET-INCOME> 519,980
0
<EARNINGS-AVAILABLE-FOR-COMM> 519,980
<COMMON-STOCK-DIVIDENDS> 408,553
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 020
<NAME> ENTERGY OPERATIONS, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 5,737
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<TOTAL-CURRENT-ASSETS> 27,453
<TOTAL-DEFERRED-CHARGES> 1,463
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 36,292
<COMMON> 5
<CAPITAL-SURPLUS-PAID-IN> 995
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0
0
<LONG-TERM-DEBT-NET> 0
<SHORT-TERM-NOTES> 5,780
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0
<CAPITAL-LEASE-OBLIGATIONS> 0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 29,512
<TOT-CAPITALIZATION-AND-LIAB> 36,292
<GROSS-OPERATING-REVENUE> 682,065
<INCOME-TAX-EXPENSE> 264
<OTHER-OPERATING-EXPENSES> 681,225
<TOTAL-OPERATING-EXPENSES> 681,489
<OPERATING-INCOME-LOSS> 576
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<TOTAL-INTEREST-EXPENSE> 576
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0
<EARNINGS-AVAILABLE-FOR-COMM> 0
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 023
<NAME> ENTERGY POWER, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 145,203
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<TOTAL-CURRENT-ASSETS> 78,866
<TOTAL-DEFERRED-CHARGES> 2
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 224,071
<COMMON> 55
<CAPITAL-SURPLUS-PAID-IN> 249,950
<RETAINED-EARNINGS> (77,771)
<TOTAL-COMMON-STOCKHOLDERS-EQ> 172,234
0
0
<LONG-TERM-DEBT-NET> 0
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0
<CAPITAL-LEASE-OBLIGATIONS> 0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 51,837
<TOT-CAPITALIZATION-AND-LIAB> 224,071
<GROSS-OPERATING-REVENUE> 64,115
<INCOME-TAX-EXPENSE> (6,729)
<OTHER-OPERATING-EXPENSES> 76,611
<TOTAL-OPERATING-EXPENSES> 69,882
<OPERATING-INCOME-LOSS> (5,767)
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<TOTAL-INTEREST-EXPENSE> 5,992
<NET-INCOME> (10,667)
0
<EARNINGS-AVAILABLE-FOR-COMM> (10,667)
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 027
<NAME> ENTERGY SERVICES, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
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<TOTAL-NET-UTILITY-PLANT> 82,081
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<TOTAL-CURRENT-ASSETS> 68,265
<TOTAL-DEFERRED-CHARGES> 2,891
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<COMMON> 20
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0
0
<LONG-TERM-DEBT-NET> 0
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0
<CAPITAL-LEASE-OBLIGATIONS> 0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 141,268
<TOT-CAPITALIZATION-AND-LIAB> 153,237
<GROSS-OPERATING-REVENUE> 397,530
<INCOME-TAX-EXPENSE> (257)
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0
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 013
<NAME> SYSTEM FUELS, INC.
<MULTIPLIER> 1,000
<S> <C>
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<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
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<TOTAL-CURRENT-ASSETS> 33,733
<TOTAL-DEFERRED-CHARGES> 250
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 99,086
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0
0
<LONG-TERM-DEBT-NET> 34,000
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0
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<LEASES-CURRENT> 2,399
<OTHER-ITEMS-CAPITAL-AND-LIAB> 9,003
<TOT-CAPITALIZATION-AND-LIAB> 99,086
<GROSS-OPERATING-REVENUE> 103,713
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0
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 018
<NAME> ENTERGY ENTERPRISES, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
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<PERIOD-END> DEC-31-1995
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0
0
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0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 49,484
<TOT-CAPITALIZATION-AND-LIAB> 167,667
<GROSS-OPERATING-REVENUE> 26,298
<INCOME-TAX-EXPENSE> (22,261)
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<TOTAL-OPERATING-EXPENSES> 42,776
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<TOTAL-INTEREST-EXPENSE> 5,634
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0
<EARNINGS-AVAILABLE-FOR-COMM> (38,021)
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 004
<NAME> GULF STATES UTILITIES COMPANY (PARENT)
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
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<TOTAL-CURRENT-ASSETS> 738,057
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87,654
136,444
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0
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29,643
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 005
<NAME> GSG&T, INC.
<MULTIPLIER> 1,000
<S> <C>
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<PERIOD-END> DEC-31-1995
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0
0
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0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 3,030
<TOT-CAPITALIZATION-AND-LIAB> 23,821
<GROSS-OPERATING-REVENUE> 3,618
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0
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 007
<NAME> SOUTHERN GULF RAILWAY COMPANY
<MULTIPLIER> 1,000
<S> <C>
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<PERIOD-END> DEC-31-1995
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0
0
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0
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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EXHIBIT C-1(h)
Execution Copy
U.S. $65,000,000
CREDIT AGREEMENT
Dated as of November 27, 1995
Among
EP EDEGEL, INC.
as Borrower
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
individually and
UNION BANK OF SWITZERLAND
as Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time
Periods 9
SECTION 1.03. Accounting Terms 9
ARTICLE II. AMOUNTS AND TERMS OF THE LOANS 9
SECTION 2.01. The Loan 9
SECTION 2.02. Interest 9
SECTION 2.03. Prepayments 9
SECTION 2.04. Increased Costs 10
SECTION 2.05. Illegality 10
SECTION 2.06. Payments and Computations 10
SECTION 2.07. Taxes 12
SECTION 2.08. Sharing of Payments, Etc. 14
ARTICLE III. CONDITIONS OF LENDING 14
SECTION 3.01. Condition Precedent to
Loan 14
ARTICLE IV. REPRESENTATIONS AND WARRANTIES 16
SECTION 4.01. Representations and
Warranties of the Borrower 16
ARTICLE V. COVENANTS OF THE BORROWER 18
SECTION 5.01. Affirmative Covenants 18
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES 18
SECTION 6.01. Events of Default 18
SECTION 6.02. Remedies 19
ARTICLE VII. THE AGENT 20
SECTION 7.01. Authorization and Action 20
SECTION 7.02. Agent's Reliance, Etc. 20
SECTION 7.03. Union Bank of Switzerland
and Affiliates 21
SECTION 7.04. Lender Credit Decision 21
SECTION 7.05. Indemnification 21
SECTION 7.06. Successor Agent 22
ARTICLE VIII. MISCELLANEOUS 22
SECTION 8.01. Amendments, Etc. 22
SECTION 8.02. Notices, Etc. 23
SECTION 8.03. No Waiver; Remedies 23
SECTION 8.04. Costs and Expenses;
Indemnification 23
SECTION 8.05. Right of Set-off 25
SECTION 8.06. Binding Effect 25
SECTION 8.07. Assignments and
Participations 25
SECTION 8.08. Governing Law 29
SECTION 8.09. Consent to Jurisdiction;
Waiver of Jury Trial 29
SECTION 8.10. Invalidity 30
SECTION 8.11. Execution in Counterparts 30
Exhibit A - Form of Contract Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Opinion of Counsel for the Borrower
Exhibit D - Form of Opinion of Special New York
Counsel to the Borrower.
Exhibit E - Form of Opinion of Special New York
Counsel to the Agent
Exhibit F - Form of Guaranty Agreement between
Entergy Enterprises, Inc. and the Agent
Exhibit G - Form of Guaranty of Entergy
Enterprises, Inc.
Exhibit H - Form of Guaranty Agreement between
Entergy Corporation and the Agent
Exhibit I - Form of Guaranty by Entergy
Corporation
<PAGE>
CREDIT AGREEMENT
Dated as of November 27, 1995
EP EDEGEL, INC., a Delaware corporation (the
"Borrower"), and Union Bank of Switzerland, Houston Agency
individually (the "Bank") and Union Bank of Switzerland as
agent (the "Agent"), for the Lenders, agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.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):
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director
or officer of such Person.
"Agreement" means this Credit Agreement.
"AP&L" means Arkansas Power & Light Company, an
Arkansas Corporation.
"Applicable Margin" means, on any date, for any Loan,
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 A- and BBB+ and BBB- and BB+
Debt A3 or Baa1 or Baa3 or and/or
Ratings above BBB and split Ba1 or
Baa2 or rated below or
split above unrated
rated
above
A- and E--0.35% E--0.40% E--0.48% E--0.75%
A3 or
above
BBB+ and
Significant Baa1 or E--0.40% E--0.45% E--0.50% E--0.80%
Subsidiary BBB and
with next Baa2 or
highest split
Senior rated
Debt above
Rating
BBB- and
Baa3
or E--0.48% E--0.50% E--0.55% E--0.875%
split
rated
above
BB+
and/or E--0.75% E--0.80% E--0.875% E--0.875%
Ba1 or
below or
unrated
E = Applicable 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.
"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 B hereto.
"Bank" means Union Bank of Switzerland, Houston
Agency.
"Borrowing" means the Loan made hereunder.
"Borrowing Date" means the date of the Loan
hereunder, which date shall be November 28, 1995 unless
otherwise agreed by the parties hereto.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and on which dealings are carried on in the London
interbank market.
"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 Second Guarantor and its Subsidiaries
appearing on a consolidated balance sheet of the Second
Guarantor and its Subsidiaries prepared as of the date of
determination in accordance with generally accepted
accounting principles, after eliminating all intercompany
transactions and all amounts properly attributable to
minority interests, if any, in the stock and surplus of
Subsidiaries.
"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.
"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 US$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
US$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 commercial
bank Affiliate of any Lender 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 (which approval shall not be unreasonably
withheld), the Agent and the Majority Lenders.
"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 (ii) 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 (iii) 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
(iv) the institution of proceedings to terminate an ERISA
Plan by the PBGC or to appoint a trustee to administer any
ERISA Plan or (v) 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.
"Events of Default" has the meaning specified in
Section 6.01.
"Facility Documents" shall mean this Credit
Agreement, each Note, the First Guaranty Agreement, the
First Guaranty, the Second Guaranty Agreement and the
Second Guaranty.
"Federal Funds Rate" shall mean, 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 November 27, 1995, between the Borrower and the Bank.
"First Guaranty" shall mean the Guaranty issued by
the First Guarantor under the First Guaranty Agreement.
"First Guaranty Agreement" shall mean the guaranty
agreement dated November 27, 1995 between the First
Guarantor and the Agent as required by to Section
3.01(a)(viii) hereof.
"First Guaranty Event of Default" shall mean an Event
of Default under the First Guaranty Agreement.
"First Guarantor" shall mean Entergy Enterprises,
Inc., a Louisiana corporation.
"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.
"Indemnified Person" shall have the meaning set out
in Section 8.04(c).
"Institutions" shall have the meaning set out in
Section 8.07(e).
"Interest Period" means, the period commencing on the
Borrowing Date 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 1, 2, 3 or 6 months in
each case as the Borrower may, on the third Business Day
prior to the first day of each Interest Period, select by
notice to the Agent, provided that if no such notice is
received the duration of the next Interest Period shall be
1 month; provided, however, that:
(i) the Borrower may not select any Interest
Period that ends after the Termination Date; and
(ii) 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, 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 Bank and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lending Office" means each Lender's Lending Office
as specified herein or as specified in accordance with
Section 8.07.
"LIBOR" means, in relation to any Loan or unpaid sum,
(i) the rate per annum determined by the Agent to be the
arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-sixteenth of
one per cent.) of the offered rates (if any) appearing on
page 3750 of the Telerate screen which displays British
Bankers Association Interest Settlement Rates for deposits
in U.S. dollars and for the specified period or any
equivalent successor to such page at or about 11.00 a.m. on
the Quotation Date or (ii) if no such offered rate appears
on the Telerate screen then such rate per annum which is
determined by the Agent to be the arithmetic mean (rounded
upwards, if not already such a multiple, to the nearest
whole multiple of one-sixteenth of one per cent.) of the
offered rates (if any) appearing on the LIBO page of the
Reuters screen for deposits in U.S. dollars and for the
specified period or any equivalent successor to such page
at or about 11.00 a.m. on the Quotation Date or (iii) if no
such offered rate appears on the Reuters screen then the
rate per annum determined by the Agent to be equal to the
arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-sixteenth of
one per cent.) of the rates (as notified to the Agent) at
which the Reference Bank was offering to prime banks in the
London Interbank Market deposits in dollars and for the
specified period at or about 11.00 a.m. on the Quotation
Date for such period and, for the purposes of this
definition, "specified period" means the Interest Period of
such Loan or, as the case may be, the period in respect of
which LIBOR fails to be determined in relation to any
unpaid sum;
"LP&L" means Louisiana Power & Light Company, a
Louisiana corporation.
"Loan" shall have the meaning set forth in Section
2.01 hereof.
"Loans" shall mean loans made by Lenders in
accordance with Section 8.07 hereof.
"Majority Lenders" means at any time Lenders holding
at least 66-2/3% of the then aggregate unpaid principal
amount of the Notes held by Lenders.
"Moody's" means Moody's Investors Service, Inc. or
any successor thereto.
"MP&L" means Mississippi Power and Light Company, a
Mississippi corporation.
"Notes" means a Note or Notes evidencing the Loan or
Loans made to the Borrower hereunder.
"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.
"Quotation Date" means, in relation to any Interest
Period for which an interest rate is to be determined, the
second business day prior to the first day of that Period.
"Reference Bank" means Union Bank of Switzerland.
"Register" has the meaning specified in Section
8.07(c).
"Reportable Event" has the meaning assigned to that
term in Title IV of ERISA.
"S&P" means Standard & Poor's Rating Group or any
successor thereto.
"SEC" means the United States Securities and Exchange
Commission.
"Second Guaranty" shall mean the Guaranty issued by
the Second Guarantor under the Second Guaranty Agreement.
"Second Guaranty Agreement" shall mean the Guaranty
Agreement dated November 27, 1995 between the Second
Guarantor and the Agent as required by Section 3.01(a)(x)
hereunder.
"Second Guaranty Event of Default" shall mean an
Event of Default under the Second Guaranty Agreement.
"Second Guarantor" shall mean Entergy Corporation, a
Delaware corporation.
"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 Second
Guarantor: (i) the total assets (after intercompany
eliminations) of which exceed 5% of the total assets of the
Second Guarantor and its Subsidiaries or (ii) the net worth
of which exceeds 5% of the Consolidated Net Worth of the
Second Guarantor and its Subsidiaries, in each case as
shown on the most recent audited consolidated balance sheet
of the Second Guarantor and its Subsidiaries.
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might
have voting power by reason of the happening of any
contingency) is at the time owned by such Person and/or one
or more Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such
Person has more than a 50% equity interest at the time.
"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 November 27, 1998.
SECTION I.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 I.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 of the Second Guarantor dated as of
December 31, 1994.
ARTICLE II.
AMOUNTS AND TERMS OF THE LOANS
SECTION II.01. The Loan. (a) Subject to and upon
the terms and conditions set forth herein, the Bank agrees
to make, on the Borrowing Date, a term loan (the "Loan") to
the Borrower in the aggregate principal amount of
US$65,000,000. Once repaid, the Loan incurred hereunder
may not be reborrowed.
(b) The principal of the Loans shall be repaid,
except as provided in Sections 2.03 and 2.05, on the
Termination Date.
SECTION II.02. Interest. (a) On the last day of
each Interest Period the Borrower shall pay interest
accrued from and including the first day to and excluding
the last day of such Interest Period on the Loan.
(b) The rate of interest applicable to the Loan from
time to time during each Interest Period shall be the rate
per annum which is the sum of the Applicable Margin and
LIBOR on the Quotation Date therefor.
SECTION II.03. Prepayments. (a) Permissive. 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 such amount 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 US$1,000,000 or any integral multiple of
US$100,000 in excess thereof and (ii) if the prepayment is
not made at the end of an Interest Period, the Borrower
shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(b) on the date of such
prepayment.
(b) Mandatory. If any time there is a Debt
refinancing directly or indirectly of the Borrower's
investment in GenerAndes Co. or a Debt refinancing by
Empresa de Generacion Electrica de Lima S.A. or any
successors or assigns of either of them and the proceeds of
either thereof shall be received, whether by way of
dividend or otherwise, by the Borrower, then such proceeds
shall be applied within 10 Business Days of receipt to the
prepayment of the Loan or Loans made hereunder.
SECTION II.04. Increased Costs. If, due to either
(i) the introduction of or any change 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 any Loan, 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 on an after-tax basis for such increased cost,
provided that such Lender will in good faith provide the
Borrower with reasonable notice of 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.
SECTION II.05. Illegality. Notwithstanding any
other provision of this Agreement, if any Lender shall
notify the Agent that the introduction of or any 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 such Lender to
make or maintain a Loan hereunder or to perform its
obligations hereunder the Borrower shall forthwith prepay
in full all Loans then outstanding to such Lender, together
with interest accrued thereon.
SECTION II.06. 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 fees
ratably (other than amounts payable pursuant to Section
2.04, 2.05, 2.07 or 8.04(b)) to the Lenders, 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 shall be made by the
Agent on the basis of a year of 360 days. Each
determination by the Agent 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,
provided, however, if such extension would cause payment of
interest on or principal of the Notes 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 then current LIBOR
rate plus 2%, payable upon demand.
(g) All payments required to be made by the Borrower
hereunder shall be calculated without reference to any set-
off or counterclaim and shall be made free and clear of and
without any deduction for or on account of any set-off or
counterclaim.
(h) The Borrower authorizes to the fullest extent
permitted by applicable law any Lender to apply any credit
balance to which the Borrower is entitled on any account of
the Borrower with that Lender in satisfaction of any sum
due and payable from the Borrower to such Lender hereunder
but unpaid; for this purpose, the Lender is authorized to
purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect
such application. No Lender shall be obliged to exercise
any right given to it by this Section 2.06(h). In the event
of the Lender exercising any right given to it under this
Section 2.06(h), such Lender shall immediately notify the
Agent.
SECTION II.07. Taxes. (a) Any and all payments by
the Borrower hereunder or under the Notes shall be made
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 (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
2.07) 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 required 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 2.07) 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
2.07, 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 Borrowing Date in the case of the
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,
to the extent it is entitled to do so, 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.
(e) Any Lender claiming any additional amounts
payable pursuant to this Section 2.07 shall use its best
efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its
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 2.07
shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION II.08. 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 Notes (other than pursuant
to Section 2.04, 2.05, 2.07 or 8.04(b)) in excess of its
ratable share of payments on account of the Notes obtained
by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Notes 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 2.08 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.
ARTICLE III.
CONDITIONS OF LENDING
SECTION III.01. Condition Precedent to Loan. The
obligation of the Bank to make its Loan is subject to the
conditions precedent that on or before the Borrowing Date:
(a) The Agent shall have received the following, each
dated the same date, in form and substance satisfactory to
the Agent:
(i) Notes payable to the order of the Bank in
the amount of the Loan;
(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;
(iv) A certificate of the Secretary or an
Assistant Secretary of the First Guarantor
certifying (A) the names and true signatures of the
officers of the First Guarantor authorized to sign
the First Guaranty Agreement and the other documents
to be delivered thereunder; (B) that attached
thereto are true and correct copies of the
Certificate of Incorporation and the By-laws of the
First Guarantor, 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 the First
Guaranty Agreement;
(v) A certificate of the Secretary or an
Assistant Secretary of the Second Guarantor
certifying (A) the names and true signatures of the
officers of the Second Guarantor authorized to sign
the Second Guaranty Agreement and the other
documents to be delivered thereunder; (B) that
attached thereto are true and correct copies of the
Certificate of Incorporation and the By-laws of the
Second Guarantor, 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 the Second
Guaranty Agreement;
(vi) A favorable opinion of counsel for the
Borrower, acceptable to the Agent, substantially in
the form of Exhibit C hereto and as to such other
matters as the Agent may reasonably request;
(vii) A favorable opinion of counsel for
the First Guarantor, acceptable to the Agent,
substantially in the form of Exhibit C hereto (with
changes appropriate to the fact that a different
entity is the subject of the opinion) and as to such
other matters as the Agent may reasonably request;
(viii) A favorable opinion of counsel for
the Second Guarantor, acceptable to the Agent,
substantially in the form of Exhibit C hereto (with
changes appropriate to the fact that a different
entity is the subject of the opinion) and as to such
other matters as the Agent may reasonably request;
(ix) A favorable opinion of Reid & Priest LLP,
special New York counsel for the Borrower, the First
Guarantor and the Second Guarantor substantially in
the form of Exhibit D hereto and as to such other
matters as the Agent may reasonably request;
(x) A favorable opinion of White & Case,
special New York counsel for the Agent and the Bank,
substantially in the form of Exhibit E hereto; and
(xi) Evidence in form satisfactory to the Agent
that CT Corporation has agreed to act as the agent
for the service of process for the Borrower, the
First Guarantor and the Second Guarantor in New
York;
(xii) A First Guaranty Agreement duly executed
and delivered between Entergy Enterprises, Inc. and
the Agent in substantially the form set out in
Exhibit F hereto;
(xiii) A First Guaranty duly executed and
delivered by Entergy Enterprises, Inc. in
substantially the form set out in Exhibit G hereto;
(xiv) A Second Guaranty Agreement duly
executed and delivered between Entergy Corporation
and the Agent in substantially the form set out in
Exhibit H hereto; and
(xv) A Second Guaranty duly executed and
delivered by Entergy Corporation and the Agent in
substantially the form set out in Exhibit I hereto.
(b) The Bank shall have received the fees payable
pursuant to the Fee Letter.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION IV.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) laws 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.
(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) No event has occurred and is continuing that
constitutes an Event of Default, a First Guaranty Event of
Default or a Second Guaranty Event of Default or that would
constitute an Event of Default, a First Guaranty Event of
Default or a Second Guaranty Event of Default but for the
requirement that notice be given or time elapse or both.
(f) 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 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).
(g) 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.
(h) 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.
ARTICLE V.
COVENANTS OF THE BORROWER
SECTION V.01. Affirmative Covenants. So long as any
Note or any amount payable by the Borrower hereunder shall
remain unpaid, the Borrower will, unless the Agent shall
otherwise consent in writing:
(a) Keep Books and Corporate Existence.
(i) keep proper books of record and account,
all in accordance with generally accepted accounting
principles;
(ii) 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.
(b) Use of Proceeds. The proceeds of the Loan to be
made on the Borrowing Date shall be applied to fund the
investments to be made by the Borrower in GenerAndes Co.,
and its successors and assigns.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION VI.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 Loan 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 any
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 First Guarantor defaults under the First
Guaranty Agreement or under the First Guaranty or any
representation or statement made by the First Guarantor in
the First Guaranty Agreement or in any notice or other
document, certificate or statement delivered by it pursuant
to the First Guaranty Agreement or in connection therewith
is or proves to have been incorrect or misleading in any
material respects when made; or
(e) The Second Guarantor defaults under the Second
Guaranty Agreement or under the Second Guaranty or any
representation or statement made by the Second Guarantor in
the Second Guaranty Agreement or in any notice or other
document, certificate or statement delivered by it pursuant
to the Second Guaranty Agreement or in connection therewith
is or proves to have been incorrect or misleading in any
material respects when made.
SECTION VI.02. Remedies. If any Event of Default
shall occur and be continuing, then, and in any such event,
the Agent 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. In addition, the Agent shall at the request, or
may with the consent of the Majority Lenders, take such
further actions at law or in equity as may be necessary or
desirable to protect the rights of the Lenders hereunder.
ARTICLE VII.
THE AGENT
SECTION VII.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 VII.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 VII.03. Union Bank of Switzerland and
Affiliates. With respect to the Notes issued to it, Union
Bank of Switzerland 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 Union Bank of Switzerland in its
individual capacity. Union Bank of Switzerland 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 Union Bank of Switzerland were not the Agent and without
any duty to account therefor to the Lenders.
SECTION VII.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on
such 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 VII.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 Notes then held by each of them, 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 VII.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 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
US$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 Event of Default, and
no event that with the giving of notice or the passage of
time, or both, would constitute an 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 VIII.01. Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the Notes, nor
consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do
any of the following: (a) reduce the principal of, or
interest on, the Notes or any fees or other amounts payable
hereunder, (b) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, (c) change the definition
of Majority Lenders, which shall be required for the
Lenders or any of them to take any action hereunder, (d)
amend this Section 8.01, or (e) amend the First Guaranty
and/or the Second Guaranty; 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 VIII.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 900 South Shackleford Road, Little Rock,
Arkansas 72211, Attention: President; if to the Bank, at
its Lending Office specified on the signature page hereto;
if to any other Lender, at its Lending Office specified in
the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Agent, at its address at 299 Park
Avenue, New York, New York 10171, Attention: Loan
Administration, with copy to Union Bank of Switzerland,
1100 Louisiana, Suite 4500, Houston, Texas 77002,
Attention: Dan Boyle, Vice President; 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.
Notices and other communications given by the Borrower to
the Agent shall be deemed given to the Lenders.
SECTION VIII.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 VIII.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 interest on
the Notes is made other than on the last day of an Interest
Period, as a result of a payment pursuant to Section 2.03
or 2.05, 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(g) 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, 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
any Lender to fund or maintain such Notes. 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 Loan, except that no Indemnified Person shall be
entitled to any indemnification hereunder to the extent
that such claims, damages, losses, liabilities, costs or
expenses are finally determined by a court of competent
jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnified Person. The
Borrower's obligations under this Section 8.04(c) shall
survive the repayment of all amounts owing to the Lenders
and the Agent under this Agreement and the Notes. If and to
the extent that the obligations of the Borrower under this
Section 8.04(c) are unenforceable for any reason, the
Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof which is permissible under
applicable law.
(d) The Borrower undertakes to indemnify the Agent
and each Lender against any value added tax or analogous
tax, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default.
SECTION VIII.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of
Default 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, 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 VIII.06. Binding Effect. This Agreement
shall become effective when it shall have been executed by
the Borrower, the Agent and the Bank 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 VIII.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; 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; and (iii) 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 Note or Notes
subject to such assignment and a processing and recordation
fee of US$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
under all other Facility Documents, (y) the assignee shall
be entitled to the pro rata benefit of all other Facility
Documents and (z) the Lender assignor thereunder shall, to
the extent that rights and obligations hereunder have been
so assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its
obligations under this Agreement and under all other
Facility Documents (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 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
principal amount of the Notes 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 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 B
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 Note or
Notes, a new Note or Notes to the order of such assignee in
an amount equal to the principal purchased by it pursuant
to such Assignment and Acceptance and, if the assigning
Lender has retained a portion of its Notes hereunder, a new
Note or Notes to the order of the assigning Lender in an
amount equal to the principal amount retained by it
hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of
such surrendered 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 hereto.
(e) Each Lender may sell participations to one or
more banks, financial institutions or other entities
("Institutions") in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of the Note or Notes held by
it); provided, however, that (i) such Lender's obligations
under this Agreement 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, (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 and (v) the
Borrower will not be financially liable for any attorney's
fees and the like incurred by any of the Institutions in
connection with its decision to buy participations under
this Agreement.
(f) 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.
(g) If any Lender shall make any demand for payment
under Section 2.04 or 2.07, or if any Lender shall be the
subject of any notification or assertion of illegality
under Section 2.05, 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 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) all (but not less than all) of
such Lender's Notes. 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 such
Lender's Notes, then such demand by the Borrower shall
become ineffective; it being understood for purposes hereof
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.
Notwithstanding anything set forth above to the contrary,
the Borrower shall not be entitled to compel the assignment
by any Lender demanding payment under Section 2.04 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 Lending Office 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 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.
(h) Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or
any portion of its Notes 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 VIII.08. Governing Law. THIS AGREEMENT AND
THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE LENDERS AND
OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION VIII.09. Consent to Jurisdiction; Waiver of
Jury Trial. (a) Any legal action or proceeding with
respect to this Agreement or any other Facility Document
may be brought in the courts of the State of New York or of
the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement,
the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably designates, appoints and em
powers CT Corporation System with offices on the date
hereof at 1633 Broadway, New York, New York 10019, as its
designee, appointee and agent to receive and accept for and
on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall
cease to be available to act as such, the Borrower agrees
to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this
provision satisfactory to the Agent (which approval shall
not be unreasonably withheld). The Borrower hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over the Borrower, and agrees not to plead or
claim, in any legal action or proceeding with respect to
this Agreement or any other Facility Document brought in
any of the aforesaid courts, that any such court lacks
jurisdiction over the Borrower. The Borrower further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Borrower at its
address specified in Section 8.02, such service to become
effective 30 days after such mailing. The Borrower hereby
irrevocably waives any objection to such service of process
and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder that
service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Lenders
to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the
Borrower in any other jurisdiction.
The Borrower hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement brought in the
courts referred to above and hereby further irrevocably
waives and agrees not to plead or claim in any such court
that such action or proceeding brought in any such court
has been brought in an inconvenient forum.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES 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 VIII.10. Invalidity. If, at any time, any
provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
SECTION VIII.11. 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.
EP EDEGEL, INC.
By
Name:
Title:
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By
Name:
Title:
By
Name:
Title:
UNION BANK OF SWITZERLAND, as Agent
By
Name:
Title:
By
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF NOTE
U.S.$_____________ Dated: __________,19___
FOR VALUE RECEIVED, the undersigned, EP EDEGEL,
INC., a Delaware corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of ________________________
(the "Lender") for the account of its Lending Office
(except as otherwise defined herein, such term and other
capitalized terms herein being used as defined in the
Credit Agreement referred to below) in lawful money of the
United States of America in immediately available funds, at
the office of Union Bank of Switzerland (the "Agent")
located at 299 Park Avenue, New York, New York 10417 on the
Termination Date the principal sum of US$65,000,000 or if
less, the principal amount of all Loans made by the Lender
pursuant to the Credit Agreement.
The Borrower promises to pay interest on the
unpaid principal amount hereof in like money at said office
from the Borrowing Date until such principal amount is paid
in full, at such interest rates, and payable at such times,
as are specified in the Credit Agreement.
This Promissory Note is one of the Notes referred
to in, and is entitled to the benefits of, the Credit
Agreement, dated as of November 27, 1995 (the "Credit
Agreement") between the Borrower, the Bank and Union Bank
of Switzerland, as Agent for the Lenders. The Credit
Agreement, among other things 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.
In the case an Event of Default shall occur and
be continuing, the principal and accrued interest on this
Note may be declared due and payable in the manner and with
the effect provided in the Credit Agreement.
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.
EP EDEGEL, INC.
By___________________________________
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ________________, 19___
Reference is made to the Credit Agreement, dated as
of November 27, 1995 (as amended, modified or supplemented
from time to time, the "Credit Agreement"), among EP
Edegel, Inc., a Delaware corporation (the "Borrower"), the
Bank (as defined in the Credit Agreement) and Union Bank of
Switzerland, 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 and the other Facility Documents as of
the date hereof which represents the percentage interest
specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other
Facility Documents.
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 Note[s] issued to
it under the Credit Agreement and requests that the Agent
exchange such Note[s] for a new Note payable to the order
of the Assignee in an amount equal to the interest assumed
by the Assignee pursuant hereto or new Notes payable to the
order of the Assignee in an amount equal to the interest
assumed by the Assignee pursuant hereto and the Assignor in
an amount equal to the interest 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 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 Lending Office the office 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]./1
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 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
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 upon 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:
Lending Office (and
address for notices):
[Address]
Accepted this ___ day of
__________, 19_
UNION BANK OF SWITZERLAND,
as Agent
By__________________________
Name:
Title:
By__________________________
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated ________________, 19___
Section 1.
Percentage Interest: _____%
Section 2.
Aggregate Outstanding Principal
Amount owing to the Assignee: $______
A Note payable to the order of the Assignee
Dated: _______________, 19___
Principal amount: $______
[A Note payable to the order of the Assignor
Dated: _______________, 19___
Principal amount: $______]
Section 3.
Effective Date/2: ____________ ___, 19___
<PAGE>
EXHIBIT C
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[Date]
To Union Bank of Switzerland,
Houston Agency and
Union Bank of Switzerland, as Agent
EP Edegel, Inc.
Ladies and Gentlemen:
I have acted as counsel to EP Edegel, Inc., a
Delaware corporation (the "Borrower"), in connection with
the preparation, execution and delivery of the Credit
Agreement, dated as of November 27, 1995, by and among the
Borrower, the Bank and Union Bank of Switzerland, as Agent.
This opinion is furnished to you at the request of the
Borrower pursuant to 3.01(a)(vi) 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 Note[s], executed by the Borrower;
(c) The Certificate of Incorporation of the Borrower
(the "Charter");
(d) The Bylaws of the Borrower (the "Bylaws");
(e) 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;
(f) The other documents referred to in
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
of appropriate public officials, without independent
verification of such matters except as otherwise described
herein.
Except to the extent expressly set forth herein, I
have not undertaken any independent investigation to
determine the existence or absence of such facts, and no
inference as to my knowledge of the existence or absence of
facts should be assumed.
On the basis of the foregoing and subject to the
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 and do not contravene (i)
the Charter or the Bylaws or (ii) law or (iii) any
contractual or legal restriction binding on or affecting
the Borrower. The Credit Agreement and the Notes have been
duly executed and delivered on behalf of 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.
4. 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 adviser" within the meaning of the
Investment Advisers Act of 1940, as amended.
5. The Credit Agreement and the Notes 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 5
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.
(e) I express no opinion herein
as to Sections 2.06(h) and 8.05 of the
Credit Agreement.
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
[List States] and, except as otherwise provided herein, my
role as counsel to the Company is limited to matters
involving the laws of the State of __________ 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 LLP 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) White & Case hereby is authorized to rely on
this letter in the rendering of their opinion to the Bank
and the Agent 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 Person that was a party to
the Credit Agreement.
Very truly yours,
_______________________
<PAGE>
EXHIBIT D
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE BORROWER,
THE FIRST GUARANTOR AND
THE SECOND GUARANTOR
[Date]
To Union Bank of Switzerland,
Houston Agency and Union Bank
of Switzerland, as Agent
EP Edegel, Inc.
Entergy Enterprises, Inc.
and
Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to EP
Edegel, Inc., a Delaware corporation, Entergy Enterprises,
Inc., a Louisiana corporation, and Entergy Corporation, a
Delaware corporation, in connection with the preparation,
execution and delivery of the Credit Agreement, dated as of
November 27, 1995 (the "Credit Agreement"), among EP
Edegel, Inc., the Bank and Union Bank of Switzerland, 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 Notes to the order of the Bank; and
3. the other documents referred to in Section
3.01(a) of the Credit Agreement, including (without
limitation) the opinions of Frederick F. Nugent,
Esq., counsel to the Borrower and the First
Guarantor and the opinion of Laurence M. Hamric,
Esq., counsel to the Second Guarantor.
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 opinions referred in clause (3) of the second preceding
paragraph.
Based upon and subject to the foregoing, and subject
to the qualifications set forth below, we are of the
opinion that the Credit Agreement, the Notes and the other
Facility Documents are the legal, valid and binding
obligations of the Borrower, the First Guarantor or the
Second Guarantor, enforceable against each such Person in
accordance with their respective terms to the extent they
are signatories to such Documents .
Our opinion is subject to the following
qualifications:
(a) The enforceability of the obligations of the
Borrower, the First Guarantor or the Second Guarantor, as
the case may be, under the applicable Facility Documents is
subject to the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors'
rights generally.
(b) The enforceability of the obligations of the
Borrower, the First Guarantor or the Second Guarantor, as
the case may be, under the applicable Facility Documents 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) the
enforceability of provisions purporting to grant to a party
conclusive rights of determination, (ii) the availability
of specific performance or other equitable remedies, (iii)
the enforceability of rights to indemnity under federal or
state securities laws, (iv) the enforceability of waivers
by parties of their respective rights and remedies under
law or (v) the enforceability of those provisions in the
Facility Documents with respect to rights of set-off.
(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.
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) each of Frederick F. Nugent, Esq.
and Laurence M. Hamric, Esq. may rely hereon in connection
with their respective opinions to you of even date herewith
pursuant to Section 3.01(a)(vi), (vii) and (viii) of the
Credit Agreement, in each case as to matters of New York
law, (ii) White & Case hereby is authorized to rely on this
letter in the rendering of their opinion to the Bank and
the Agent 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 Person that was a party to the Credit
Agreement.
Very truly yours,
Reid & Priest LLP
<PAGE>
EXHIBIT E
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE BANK AND THE AGENT
[Date]
To Union Bank of Switzerland,
Houston Agency and Union Bank
of Switzerland, as Agent
EP Edegel, Inc.
Entergy Enterprises, Inc.
and
Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Union
Bank of Switzerland, Houston Agency, individually and as
Agent, in connection with the preparation, execution and
delivery of the Credit Agreement, dated as of November 27,
1995 (the "Credit Agreement"), among EP Edegel, Inc., the
Bank and Union Bank of Switzerland, as Agent. Terms defined
in the Credit Agreement are used herein as therein defined.
In this connection, we have examined the following
documents:
1. the Credit Agreement, executed by the
parties thereto;
2. the Notes to the order of the Bank; and
3. the other documents referred to in Section
3.01(a) of the Credit Agreement, including (without
limitation) the opinions of Frederick F. Nugent,
Esq., counsel to the Borrower and the First
Guarantor and the opinion of Laurence M. Hamric,
Esq., counsel to the Second Guarantor.
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 opinions referred in clause (3) of the second preceding
paragraph.
Based upon and subject to the foregoing, and subject
to the qualifications set forth below, we are of the
opinion that the Credit Agreement, the Notes and the other
Facility Documents are the legal, valid and binding
obligations of the Borrower, the First Guarantor or the
Second Guarantor, enforceable against each such Person in
accordance with their respective terms, to the extent they
are signatories to such Documents.
Our opinion is subject to the following
qualifications:
(a) The enforceability of the obligations of the
Borrower, the First Guarantor or the Second Guarantor, as
the case may be, under the applicable Facility Documents is
subject to the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights
generally.
(b) The enforceability of the obligations of the
Borrower, the First Guarantor or the Second Guarantor, as
the case may be, under the applicable Facility Documents 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) the
enforceability of provisions purporting to grant to a party
conclusive rights of determination, (ii) the availability
of specific performance or other equitable remedies, (iii)
the enforceability of rights to indemnity under federal or
state securities laws, (iv) the enforceability of waivers
by parties of their respective rights and remedies under
law or (v) the enforceability of those provisions in the
Facility Documents with respect to rights of set-off.
(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.
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 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 Person that was a
party to the Credit Agreement.
Very truly yours,
White & Case
<PAGE>
EXHIBIT F
FORM OF GUARANTY AGREEMENT BETWEEN
ENTERGY ENTERPRISES, INC. AND THE AGENT
FIRST GUARANTY AGREEMENT
FIRST GUARANTY AGREEMENT, dated as of
(as amended, modified or supplemented from time to time,
this "First Guaranty Agreement"), made between Entergy
Enterprises, Inc. (the "First Guarantor") and Union Bank of
Switzerland as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of
providing for the making of the Loan to the Borrower (as
used herein, the term "Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same
may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring all
or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, it is a condition to the making of Loans
to the Borrower that the First Guarantor shall have
executed and delivered this First Guaranty Agreement and a
First Guaranty in the form of Annex I attached hereto;
WHEREAS, the Borrower is an indirect wholly-owned
Subsidiary of the Second Guarantor and the First Guarantor
a direct wholly-owned Subsidiary of the Second Guarantor;
and
WHEREAS, the First Guarantor will obtain direct
and indirect economic, financial and other benefits from
the Loan to be made to the Borrower under the Credit
Agreement and hence desires to execute this First Guaranty
Agreement and a First Guaranty in order to satisfy the
conditions described in the preceding paragraph and to
induce the Bank to make the Loan to the Borrower;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the First Guarantor, the
receipt and sufficiency of which are hereby acknowledged,
the First Guarantor hereby makes the following representa
tions and warranties to the Creditors and hereby covenants
and agrees with each Creditor as follows:
ARTICLE I
Definitions
I. As used in this First Guaranty 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):
"Agreement" shall mean this First Guaranty
Agreement.
"Creditors" shall mean all Lenders party from
time to time to the Credit Agreement and the Agent.
"Indemnified Person" shall mean the Lenders, the
Agent and their respective Affiliates and their respective
officers, directors, employees and professional advisors.
"Event of Default" shall have the meaning set
forth in Section 4.
"First Guaranty" shall mean the First Guaranty to
be executed and delivered as herein provided.
"Guarantor" shall mean Entergy Corporation.
"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.
"Payment Event" shall mean an Event of Default
(as defined in the Credit Agreement) under the Credit
Agreement (other than the events specified in Sections
6.01(d) and (e) thereof).
"Potential Event of Default" means any event
which may become (with the passage of time, the giving of
notice, the making of any determination hereunder or any
combination thereof) an Event of Default.
"SEC Order" means Order (File No. 70-8105) of the
Securities and Exchange Commission (Release No. 35-26322)
under the Public Utility Holding Company Act of 1935.
Except as otherwise defined herein, terms used
herein and defined in the Credit Agreement shall be used
herein as therein defined.
ARTICLE II
Representations and Warranties
2. The First Guarantor represents and warrants
that:
(a) the First Guarantor is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Louisiana 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) neither the execution, delivery or perform
ance by the First Guarantor of this First Guaranty
Agreement and the First Guaranty nor compliance by it
with the terms and provisions hereof or thereof (i)
will contravene any applicable provision of any law,
statute, rule or regulation, or any order, writ,
injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute
a default under, or result in the creation or
imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the
First Guarantor pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement,
credit agreement or any other agreement or other
instrument to which the First Guarantor is a party or
by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate
any provision of the certificate of incorporation or
by-laws (or other governing instrument) of the First
Guarantor or any of its Subsidiaries;
(c) the First Guarantor has the corporate power
and authority to execute, deliver and carry out the
terms and provisions of this First Guaranty Agreement
and the First Guaranty and has taken all necessary
corporate action to authorize the execution, delivery
and performance by it of each such document. The
First Guarantor has duly executed and delivered this
First Guaranty Agreement and the First Guaranty and
each such document constitutes the legal, valid and
binding obligation of the First Guarantor enforceable
in accordance with its terms, except to the extent
that the enforceability hereof or thereof may be
limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights gener
ally and by equitable principles (regardless of
whether enforcement is sought in equity or at law);
(d) no order, consent, approval, license, author
ization or validation of, or filing, recording or
registration with, or exemption by, any governmental
or public body or authority, or any subdivision
thereof, is required to authorize or make lawful the
execution, delivery and performance of this First
Guaranty Agreement and the First Guaranty, or is
required in order to make the First Guaranty Agreement
and the First Guaranty the legal, valid and binding
obligations of the First Guarantor except for the SEC
Order which is in full force and effect;
(e) it has not taken any corporate action nor
have any other steps been taken or legal proceedings
been started or (to the best of the First Guarantor's
knowledge and belief) threatened against the First
Guarantor for its winding-up, dissolution,
administration or re-organization or for the
appointment of a receiver, administrator, trustee or
similar officer of it or of any or all of its assets
or revenues;
(f) the First Guarantor 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 First
Guarantor and its Subsidiaries 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); and
(g) the First Guarantor 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.
ARTICLE III
Covenants of the First Guarantor
3. The First Guarantor shall, unless the
Majority Lenders consent in writing, so long as any Note
shall remain outstanding or there shall remain any amounts
due under the Credit Agreement or any amount payable by the
First Guarantor hereunder shall remain unpaid:
(a)(_) keep proper books of record and
account, all in accordance with generally accepted
accounting principles;
(b) 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; and
(c) 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.
ARTICLE IV
Events of Default
4. An Event of Default hereunder shall occur
if:
(a) the First Guarantor fails to pay any sum due
from it hereunder or under the First Guaranty at the
time, in the currency and in the manner specified
herein or therein; or
(b) any representation or statement made by the
First Guarantor in this Agreement or in any notice or
other document, certificate or statement delivered by
it pursuant hereto or in connection herewith is or
proves to have been incorrect or misleading in any
material respect when made; or
(c) The First Guarantor shall fail to perform or
observe (i) any term, covenant or agreement contained
in Section 3 or (ii) any other term, covenant or
agreement contained in this Agreement on its part to
be performed or observed and the failure to perform or
observe any such term, covenant or agreement in
clauses (i) or (ii) shall remain unremedied for 30
days after written notice thereof shall have been
given to the First Guarantor by the Agent or any
Lender; or
(d) The First Guarantor shall fail to pay any
principal of or premium or interest on any Debt of the
First Guarantor that is outstanding in a principal
amount in excess of $50,000,000 in the aggregate 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 First Guarantor 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 First Guarantor 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 First Guarantor,
shall take any corporate action to authorize or to
consent to any of the actions set forth above in this
subsection (e); or
(f) the First Guarantor repudiates or threatens
to repudiate this First Guaranty Agreement or the
First Guaranty; or
(g) at any time it is or becomes unlawful for
the First Guarantor to perform or comply with any or
all of its obligations hereunder or under the First
Guaranty or any of the obligations of the First
Guarantor hereunder or under the First Guaranty are
not or cease to be legal, valid and binding, and on
demand from the Agent, payment of all amounts owing
under the Notes and the Credit Agreement shall not
have been paid in full;
then, and in any such case or in the event of a Payment
Event and at any time thereafter, the Agent may (and, if so
instructed by the Majority Lenders, shall) by written
notice to the Borrower, the First Guarantor and the
Guarantor:
(i) (a) declare the Notes issued under
the Credit Agreement to be immediately due and
payable (whereupon the same shall become so
payable together with accrued interest thereon
and any other sums then owed by the Borrower
thereunder) and (b) subject to the expiration of
any relevant grace period in the Credit
Agreement, declare the sums due under the First
Guaranty to be immediately due and payable as
provided in Section 5; and
(ii) take such other action and pursue
such other remedy, whether at law or at equity,
as may be necessary or advisable to enforce the
rights of the Lender hereunder.
ARTICLE V
Demand for Payment; Terms of Payment
5. If, pursuant to Section 4, the Agent
declares the Notes issued under the Credit Agreement to be
immediately due and payable and payment in full shall not
have been made within three Business Days of such
declaration, the Agent shall demand payment under the First
Guaranty and the same shall be paid within three Business
Days of such demand.
ARTICLE VI
Withholding Taxes
6. All payments by the First Guarantor under
the First Guaranty Agreement and the First Guaranty shall
be made free and clear of, and without deduction or
withholding for or on account of, any taxes, fees and
charges of any nature whatsoever ("Taxes"), unless such
deduction or withholding is required by law. If any such
deduction or withholding shall be required by law, then the
First Guarantor shall pay such additional amounts as may be
necessary in order that the net amount received by the
applicable Indemnified Person, after such deduction or
withholding, shall be equal to the full amount that such
Indemnified Person would have received had no such Taxes
been imposed.
Any amounts deducted or withheld by First
Guarantor for or on account of Taxes shall be paid over to
the government or taxing authority imposing such Taxes on a
timely basis, and the First Guarantor shall provide the
applicable Indemnified Person as soon as practicable with
such tax receipts or other official documentation with
respect to the payment of such Taxes as may be available.
ARTICLE VII
Miscellaneous
7. (a) 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 First Guarantor, at its address at 900
South Shackleford Road, Little Rock, Arkansas 72211,
Attention: Treasurer; if to the Bank, at its Lending Office
specified on the signature page hereto; if to any other
Lender, at its Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if
to the Agent, at its address at 299 Park Avenue, New York,
New York 10171, Attention: Loan Administration, with copy
to Union Bank of Switzerland, 1100 Louisiana, Suite 4500,
Houston, Texas 77002, Attention: Dan Boyle, Vice President;
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.
Notices and other communications given by the First
Guarantor to the Agent shall be deemed given to the
Lenders.
(b) No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right
hereunder, under this First Guaranty Agreement, the First
Guaranty or any other Facility Document 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 or equity.
(c) The First Guarantor 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 First
Guaranty Agreement and the First Guaranty, 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
First Guarantor with respect to the aforementioned expenses
shall describe such costs and expenses in reasonable
detail. The First Guarantor 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 First
Guaranty Agreement and the First Guaranty including,
without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this
Section 7(c).
(d) The First Guarantor hereby agrees to
indemnify and hold each 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 First Guaranty Agreement
and the First Guaranty, or the use by the Borrower of the
proceeds of any loan, 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 First Guarantor's obligations under this
Section 7(d) shall survive the repayment of all amounts
owing to the Lenders and the Agent under this First
Guaranty Agreement and the First Guaranty. If and to the
extent that the obligations of the First Guarantor under
this Section 7(d) are unenforceable for any reason, the
First Guarantor agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible
under applicable law.
(e) The First Guarantor undertakes to indemnify
the Agent and each Lender against any value added tax or
analogous tax, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default,
Payment Event or any Potential Event of Default hereunder.
(f) Upon the occurrence and during the
continuance of any Event of Default, 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 First Guarantor against any
and all of the obligations of the First Guarantor now or
hereafter existing under this First Guaranty Agreement and
the First Guaranty, whether or not such Lender shall have
made any demand under this First Guaranty Agreement and the
First Guaranty and although such obligations may be
unmatured. Each Lender agrees promptly to notify the First
Guarantor 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
7(f) are in addition to other rights and remedies
(including, without limitation, other rights of set-off)
which such Lender may have.
(g) No failure to exercise, nor any delay in
exercising, on the part of the Agent and the Lenders or
either of them, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or
other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
(h) This First Guaranty Agreement and the First
Guaranty shall become effective when it shall have been
executed by the First Guarantor and the Agent and
thereafter shall be binding upon and inure to the benefit
of the First Guarantor, the Agent and each Lender and their
respective successors and assigns, except that the First
Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Majority Lenders.
(i) All payments required to be made by the
First Guarantor hereunder shall be calculated without
reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on
account of any set-off or counterclaim.
(j) The First Guarantor authorizes to the
fullest extent permitted by applicable law any Lender to
apply any credit balance to which the First Guarantor is
entitled on any account of the First Guarantor with that
Lender in satisfaction of any sum due and payable from the
First Guarantor to such Lender hereunder but unpaid; for
this purpose, the Lender is authorized to purchase with the
moneys standing to the credit of any such account such
other currencies as may be necessary to effect such
application. No Lender shall be obliged to exercise any
right given to it by this Section 7(j). In the event of the
Lender exercising any right given to it under this Section
7(j), such Lender shall immediately notify the Agent.
(k) If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby
(l) Any provision of this Agreement and the
First Guaranty may be amended only if the First Guarantor
and the Majority Lenders so agree in writing. Any Event of
Default or breach of any provision of this Agreement and
the First Guaranty may be waived before or after it occurs
only if the Majority Lenders so agree in writing but an
amendment or waiver which changes or relates to: (a) the
amount of the indebtedness of the First Guarantor hereunder
or under the First Guaranty, (b) the date on which any sum
becomes payable by the First Guarantor hereunder or under
the First Guaranty, or (c) this Section 7(l), shall require
the agreement of each Lender.
(m) THIS FIRST GUARANTY AGREEMENT AND THE FIRST
GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS
AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Any legal action or proceeding with respect to
this First Guaranty Agreement or the First Guaranty may be
brought in the courts of the State of New York or of the
United States of America for the Southern District of New
York, and, by execution and delivery of this First Guaranty
Agreement, the First Guarantor hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the
aforesaid courts. The First Guarantor hereby irrevocably
designates, appoints and empowers CT Corporation System
with offices on the date hereof at 1633 Broadway, New York,
New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and in respect of
its property, service of any and all legal process, sum
mons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee,
appointee and agent shall cease to be available to act as
such, the First Guarantor agrees to designate a new
designee, appointee and agent in New York City on the terms
and for the purposes of this provision satisfactory to the
Agent which approval shall not be unreasonably withheld.
The First Guarantor hereby further irrevocably waives any
claim that any such courts lack jurisdiction over the First
Guarantor, and agrees not to plead or claim, in any legal
action or proceeding with respect to this First Guaranty
Agreement or the First Guaranty brought in any of the afore
said courts, that any such court lacks jurisdiction over
the First Guarantor. The First Guarantor further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the First Guarantor
at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing.
The First Guarantor hereby irrevocably waives any objection
to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or pro
ceeding commenced hereunder that service of process was in
any way invalid or ineffective. Nothing herein shall
affect the right of any of the Creditors to serve process
in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the First
Guarantor in any other jurisdiction.
The First Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this First Guaranty
Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead
or claim in any such court that such action or proceeding
brought in any such court has been brought in an
inconvenient forum.
(o) THE FIRST GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS FIRST
GUARANTY AGREEMENT, THE OTHER FACILITY DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(p) This First Guaranty Agreement and the First
Guaranty 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>
AS WITNESS the hands of the duly authorized
representatives of the parties hereto the day and year
first before written.
ENTERGY ENTERPRISES, INC.
By
Title:
Name:
UNION BANK OF SWITZERLAND
as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
EXHIBIT G
FORM OF GUARANTY OF
ENTERGY ENTERPRISES, INC.
FIRST GUARANTY
FIRST GUARANTY, dated as of
(as amended, modified or supplemented from time to time,
this "First Guaranty"), made by the undersigned (the
"Guarantor"). Except as otherwise defined in the First
Guaranty Agreement (as defined below) or herein, terms used
herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of
providing for the making of Loans to the Borrower (as used
herein, the term "Credit Agreement" means the Credit
Agreement described in this paragraph, as the same may be
amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring of
all or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, the First Guarantor and the Agent have
entered into a First Guaranty Agreement dated
(the "First Guaranty Agreement"); and
WHEREAS, it is a condition to the making of Loans
to the Borrower that the First Guarantor shall have
executed and delivered the First Guaranty Agreement and
this First Guaranty;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the First Guarantor, the
receipt and sufficiency of which are hereby acknowledged,
the First Guarantor hereby covenants and agrees with each
Creditor as follows:
1. The First Guarantor irrevocably and
unconditionally guarantees to the Creditors the full and
prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all amounts payable by the
Borrower under the Credit Agreement and the Notes (all such
amounts being herein collectively called the "Guaranteed
Obligations). The First Guarantor understands, agrees and
confirms that the Creditors may enforce this First Guaranty
up to the full amount of the Guaranteed Obligations against
the First Guarantor without proceeding against the
Borrower, against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations. All payments by the
First Guarantor under this First Guaranty shall be made as
provided in the First Guaranty Agreement.
2. Subject to the provisions of Section 5 of the
First Guaranty Agreement, the liability of the First
Guarantor hereunder is exclusive and independent of any
security for or other guaranty of the Guaranteed
Obligations, and the liability of the First Guarantor
hereunder shall not be affected or impaired by (a) any
direction as to application of payment by the Borrower or
by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations, (c)
any payment on or in reduction of any such other guaranty
or undertaking, or (d) any payment made to any Creditor on
the Guaranteed Obligations which any Creditor repays to the
Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor
relief proceeding, and the Guarantor waives any right to
the deferral or modification of its obligations hereunder
by reason of any such proceeding.
3. Subject to the provisions of Section 5 of the
First Guaranty Agreement, the obligations of the First
Guarantor hereunder are independent of the obligations of
any other guarantor or the Borrower, and a separate action
or actions may be brought and prosecuted against the First
Guarantor whether or not an action is brought against any
other guarantor or the Borrower and whether or not any
other guarantor of the Borrower or the Borrower be joined
in any such action or actions. The First Guarantor waives,
to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or
the enforcement thereof. Any payment by the Borrower or
other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the
statute of limitations as to the First Guarantor.
4. The First Guarantor hereby waives (to the
fullest extent permitted by applicable law) notice of accep
tance of this First Guaranty and notice of any liability to
which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor
or nonpayment of any such liabilities, suit or taking of
other action by the Agent or any other Creditor against,
and any other notice to, any party liable thereon, except
as and to the extent provided in Section 5 of the First
Guaranty Agreement.
5. Any Creditor may at any time and from time to
time without the consent of, or notice to, the First
Guarantor, without incurring responsibility to the First
Guarantor, without impairing or releasing the obligations
of the First Guarantor hereunder, upon or without any terms
or conditions and in whole or in part:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of,
renew, accelerate or alter, any of the Guaranteed
Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any
offset thereagainst;
(c) exercise or refrain from exercising any
rights against the Borrower and the First Guarantor
(except as provided in Section 5 of the First Guaranty
Agreement) or others or otherwise act or refrain from
acting;
(d) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower;
(e) apply any sums by whomsoever paid or howso
ever realized to any liability or liabilities of the
Borrower to the Creditors regardless of what liabil
ities of the Borrower remain unpaid;
(f) consent to, or waive any breach of, any act,
omission or default under the Facility Documents or
any of the instruments or agreements referred to there
in, or otherwise amend, modify or supplement the
Facility Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to
in this First Guaranty which may deprive the First
Guarantor of its right to subrogation against the
Borrower.
6. No invalidity, irregularity or unenforce
ability of all or any part of the Guaranteed Obligations or
of the obligations of the Borrower under the Credit
Agreement or of any security therefor shall affect, impair
or be a defense to this First Guaranty, and this First
Guaranty shall be primary, absolute and unconditional not
withstanding the occurrence of any event or the existence
of any other circumstances which might constitute a legal
or equitable discharge of a surety or guarantor except
payment in full of the Guaranteed Obligations.
7. This First Guaranty is a continuing one and
all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or
remedies which any Creditor would otherwise have. No
notice to or demand on the First Guarantor in any case
shall entitle the First Guarantor to any other further
notice or demand in similar or other circumstances or con
stitute a waiver of the rights of any Creditor to any other
or further action in any circumstances without notice or
demand. It is not necessary for any Creditor to inquire
into the capacity or powers of the First Guarantor or the
officers, directors, partners or agents acting or purport
ing to act on its behalf, and any indebtedness made or
created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
8. (a) Except as and to the extent provided in
Section 5 of the First Guaranty Agreement, the First
Guarantor waives any right (except as shall be required by
applicable statute or law and cannot be waived) to require
the Creditors to: (i) proceed against the Borrower, any
other guarantor of the Borrower or any other party; (ii)
proceed against or exhaust any security held from the
Borrower, any other guarantor of the Borrower or any other
party; or (iii) pursue any other remedy in the Creditors'
power whatsoever. The First Guarantor waives (to the
fullest extent permitted by applicable law) any defense
based on or arising out of any defense of the Borrower, any
other guarantor of the Borrower or any other party other
than payment in full of the Guaranteed Obligations,
including, without limitation, any defense based on or
arising out of the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower
other than payment in full of the Guaranteed Obligations.
The Creditors may, at their election, foreclose on any
security held by the Agent or the other Creditors by one or
more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or
exercise any other right or remedy the Creditors may have
against the First Guarantor or any other party, or any
security, without affecting or impairing in any way the
liability of the First Guarantor hereunder except to the
extent the Guaranteed Obligations and the obligations of
the Borrower under the Notes and the Credit Agreement have
been paid in full. The First Guarantor waives any defense
arising out of any such election by the Creditors, even
though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or
remedy of the Guarantor against the Borrower or any other
party or any security;
(b) Except as and to the extent provided in
Section 5 of the First Guaranty Agreement, the First
Guarantor waives (to the fullest extent permitted by
applicable law) all presentments, demands for performance,
protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this First Guaranty, and
notices of the existence, creation or incurring of new or
additional indebtedness. The First Guarantor assumes all
responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of
the risks which the First Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty
to advise the First Guarantor of information known to them
regarding such circumstances or risks.
9. The First Guarantor agrees to pay all
reasonable out-of-pocket costs and expenses of each
Creditor in connection with the enforcement of this First
Guaranty and any amendment, waiver or consent relating
hereto (including, without limitation, the reasonable fees
and disbursements of counsel (including in-house counsel)
employed by any of the Creditors).
10. This First Guaranty shall be binding upon
the First Guarantor and its successors and assigns and
shall inure to the benefit of the Creditors and their
successors and assigns.
11. This First Guaranty or any provision hereof
may be amended only if the First Guarantor and the Majority
Lenders so agree in writing. An amendment or waiver which
changes or relates to: (a) the amount of indebtedness of
the First Guarantor hereunder or under the First Guaranty
Agreement, (b) the date on which any sum becomes payable by
the First Guarantor hereunder or under the First Guaranty
Agreement, or (c) this Section 11, shall in each case
require the agreement of each Lender.
12. In addition to any rights now or hereafter
granted under applicable law (including, without
limitation, Section 151 of the New York Debtor and Creditor
Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of
Default, such term to mean and include any "Event of
Default" as defined in the Credit Agreement, each Creditor
is hereby authorized at any time or from time to time,
without notice to the First Guarantor or to any other
Person, any such notice being expressly waived, to set off
and to appropriate and apply any and all deposits (general
or special) and any other indebtedness at any time held or
owing by such Creditor to or for the credit or the account
of the First Guarantor, against and on account of the
obligations and liabilities of the First Guarantor to such
Creditor under this First Guaranty, irrespective of whether
or not such Creditor shall have made any demand hereunder
and although said obligations, liabilities, deposits or
claims, or any of them, shall be contingent or unmatured.
13. All notices, requests, demands or other com
munications pursuant hereto shall be deemed to have been
duly given or made when delivered to the Person to which
such notice, request, demand or other communication is
required or permitted to be given or made under this First
Guaranty, addressed to such party at (i) in the case of any
Creditor, as provided in the Credit Agreement and (ii) in
the case of the First Guarantor, at its address set forth
opposite its signature below; or in any case at such other
address as any of the Persons listed above may hereafter
notify the others in writing.
14. If claim is ever made upon any Creditor for
repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with
any such claimant (including the First Guarantor), then and
in such event the First Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be
binding upon the First Guarantor, notwithstanding any
revocation hereof or the cancellation of any Note or other
instrument evidencing any liability of the Borrower, and
the First Guarantor shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never
originally been received by any such payee.
15. Any acknowledgment or new promise, whether
by payment of principal or interest or otherwise and
whether by the Borrower or other Persons liable in respect
of the Guaranteed Obligations (including the First
Guarantor), with respect to any of the Guaranteed
Obligations shall, if the statute of limitations in favor
of the First Guarantor against any Creditor shall have
commenced to run, toll the running of such statute of
limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of
such statute of limitations.
16. (a) THIS FIRST GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF THE CREDITORS AND OF THE UNDERSIGNED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this First Guaranty or any other
Facility Document to which the First Guarantor is a party
may be brought in the courts of the State of New York or of
the United States of America for the Southern District of
New York, and, by execution and delivery of this First
Guaranty, the First Guarantor hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the
aforesaid courts. The First Guarantor hereby irrevocably
designates, appoints and empowers CT Corporation System
(with offices on the date hereof at 1633 Broadway, New
York, New York 10019) as its designee, appointee and agent
to receive and accept for and on its behalf, and in respect
of its property, service of any and all legal process, sum
mons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee,
appointee and agent shall cease to be available to act as
such, the First Guarantor agrees to designate a new
designee, appointee and agent in New York City on the terms
and for the purposes of this provision satisfactory to the
Agent which approval shall not be unreasonably withheld.
The First Guarantor hereby further irrevocably waives any
claim that any such courts lack jurisdiction over the First
Guarantor, and agrees not to plead or claim, in any legal
action or proceeding with respect to this First Guaranty or
any other Facility Document to which the First Guarantor is
a party brought in any of the aforesaid courts, that any
such court lacks jurisdiction over the First Guarantor.
The First Guarantor further irrevocably consents to the
service of process out of any of the aforementioned courts
in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid,
to the First Guarantor at its address set forth opposite
its signature below, such service to become effective 30
days after such mailing. The First Guarantor hereby
irrevocably waives any objection to such service of process
and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder or
under any other Facility Document to which the First
Guarantor is a party that service of process was in any way
invalid or ineffective. Nothing herein shall affect the
right of any of the Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the First Guarantor in any other
jurisdiction.
(b) The First Guarantor hereby irrevocably
waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or pro
ceedings arising out of or in connection with this First
Guaranty or any other Facility Document brought in the
courts referred to in clause (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any
such court that such action or proceeding brought in any
such court has been brought in an inconvenient forum.
17. This First Guaranty may be executed in any
number of counterparts and by the different parties hereto
on separate counterparts, each of which when so executed
and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be
lodged with the First Guarantor and the Agent.
18. THE FIRST GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS FIRST GUARANTY, THE OTHER FACILITY DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
19. All payments made by the First Guarantor
hereunder will be made without setoff, counterclaim or
other defense.
20. (a) It is the desire and intent of the
First Guarantor and the Creditors that this First Guaranty
shall be enforced against the First Guarantor to the
fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement
is sought.
(b) If, however, and to the extent, that the
obligations of the First Guarantor under this First
Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without
limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the
amount of the Guaranteed Obligations of the First Guarantor
shall be deemed to be reduced and the affected First
Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable
law.
<PAGE>
IN WITNESS WHEREOF, the First Guarantor has
caused this First Guaranty to be executed and delivered as
of the date first above written.
900 South Shackleford Road
ENTERGY ENTERPRISES, INC.
Little Rock, Arkansas 72211
By
Title:
Name:
Accepted and Agreed to:
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
EXHIBIT H
FORM OF GUARANTY AGREEMENT BETWEEN
ENTERGY CORPORATION AND THE AGENT
GUARANTY AGREEMENT
GUARANTY AGREEMENT, dated as of
(as amended, modified or supplemented from time to time,
this "Guaranty Agreement" or "Agreement"), made between
Entergy Corporation (the "Guarantor") and Union Bank of
Switzerland as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of
providing for the making of the Loan to the Borrower (as
used herein, the term "Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same
may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring all
or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation ("EEI") which is a wholly-owned Subsidiary of
the Guarantor, has issued its guaranty dated the date
hereof in favor of the Agent (as amended from time to time,
the "First Guaranty") with respect to the obligations of
the Borrower under the Credit Agreement;
WHEREAS, the Borrower is a wholly owned, indirect
Subsidiary of the Guarantor;
WHEREAS, it is a condition to the making of Loans
to the Borrower that the Guarantor shall have executed and
delivered this Guaranty Agreement and a Guaranty in the
form of Annex I attached hereto; and
WHEREAS, the Guarantor will obtain direct and
indirect economic, financial and other benefits from the
Loan to be made to the Borrower under the Credit Agreement
and hence desires to execute this Guaranty Agreement and
the Guaranty in order to satisfy the conditions described
in the preceding paragraph and to induce the Bank to make
the Loan to the Borrower;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the Guarantor, the receipt
and sufficiency of which are hereby acknowledged, the Guar
antor hereby makes the following representations and warran
ties to the Creditors and hereby covenants and agrees with
each Creditor as follows:
ARTICLE I
Definitions
I. As used in this Guaranty 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):
"Creditors" shall mean all Lenders party from
time to time to the Credit Agreement and the Agent.
"Event of Default" shall have the meaning set
forth in Section 5.
"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.
"Guaranty" shall mean the Guaranty to be executed
and delivered as herein provided.
"Indemnified Person" shall mean the Lenders, the
Agent and their respective Affiliates and their respective
officers, directors, employees and professional advisors.
"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.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which the
Guarantor or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"NOPSI" means New Orleans Public Service Inc., a
Louisiana corporation.
"PBGC" means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its
functions under ERISA.
"Payment Event" shall mean an Event of Default
(as defined in the Credit Agreement) under the Credit
Agreement (other than the events specified in Section
6.01(e) thereof) and the First Guaranty Agreement.
"Person" shall be construed as a reference to any
person, firm, company, corporation, government, state or
agency of a state or any association or partnership
(whether or not having separate legal personality) or two
or more of the foregoing.
"Potential Event of Default" means any event
which may become (with the passage of time, the giving of
notice, the making of any determination hereunder or any
combination thereof) an Event of Default.
"SEC Order" means Order (File No. 70-8105) of the
Securities and Exchange Commission (Release No. 35-26322)
under the Public Utility Holding Company Act of 1935.
Except as otherwise defined herein, terms used
herein and defined in the Credit Agreement shall be used
herein as therein defined.
ARTICLE II
Representations and Warranties
2. The Guarantor represents and warrants that:
(a) the Guarantor 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, except where failure
to so qualify would not materially adversely affect
its condition (financial or otherwise), operations,
business, properties, or prospects;
(b) neither the execution, delivery or perform
ance by the Guarantor of this Guaranty Agreement and
the Guaranty nor compliance by it with the terms and
provisions hereof or thereof (i) will contravene any
applicable provision of any law, statute, rule or
regulation, or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or
result in the creation or imposition of (or the obliga
tion to create or impose) any Lien upon any of the
property or assets of the Guarantor pursuant to the
terms of any indenture, mortgage, deed of trust, loan
agreement, credit agreement or any other agreement or
other instrument to which the Guarantor is a party or
by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate
any provision of the certificate of incorporation or
by-laws (or other governing instrument) of the
Guarantor or any of its Subsidiaries;
(c) the Guarantor has the corporate power and
authority to execute, deliver and carry out the terms
and provisions of this Guaranty Agreement and the
Guaranty and has taken all necessary corporate action
to authorize the execution, delivery and performance
by it of each such document. The Guarantor has duly
executed and delivered this Guaranty Agreement and the
Guaranty and each such document constitutes the legal,
valid and binding obligation of the Guarantor enforce
able in accordance with its terms, except to the
extent that the enforceability hereof or thereof may
be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights gener
ally and by equitable principles (regardless of
whether enforcement is sought in equity or at law);
(d) no order, consent, approval, license, author
ization or validation of, or filing, recording or
registration with, or exemption by, any governmental
or public body or authority, or any subdivision
thereof, is required to authorize or make lawful the
execution, delivery and performance of this Guaranty
Agreement and the Guaranty, or is required in order to
make the Guaranty Agreement and the Guaranty the
legal, valid and binding obligations of the Guarantor,
except for the SEC Order which is in full force and
effect;
(e) the consolidated financial statements of the
Guarantor and its Subsidiaries as of December 31, 1994
and for the year ended on such date, as set forth in
the Guarantor'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 L.L.P.,
and the consolidated financial statements of the
Guarantor and its Subsidiaries as of September 30,
1995, and for the nine-month period ended on such date
set forth in the Guarantor'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 the Agent, fairly present (subject, in
the case of such statements dated September 30, 1995,
to year-end adjustments) the consolidated financial
condition of the Guarantor and its Subsidiaries as at
such dates and the consolidated results of the
operations of the Guarantor and its Subsidiaries for
the periods ended on such dates, in accordance with
generally accepted accounting principles consistently
applied. Except as disclosed in the Guarantor's
Quarterly Report on Form 10-Q for the fiscal period
ended September 30, 1995, since December 31, 1994,
there has been no material adverse change in the
financial condition or operations of the Guarantor;
(f) except as disclosed in the Guarantor's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, and/or the Guarantor's Quarterly
Report on Form 10-Q for the period ended September 30,
1995, there is no pending or threatened action or
proceeding affecting the Guarantor 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
Guarantor or on its ability to perform its obligations
under this Guaranty Agreement or the Guaranty, or that
purports to affect the legality, validity, binding
effect or enforceability of this Guaranty Agreement or
the Guaranty. 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) it has not taken any corporate action nor
have any other steps been taken or legal proceedings
been started or (to the best of the Guarantor's
knowledge and belief) threatened against the Guarantor
for its winding-up, dissolution, administration or re-
organization or for the appointment of a receiver,
administrator, trustee or similar officer of it or of
any or all of its assets or revenues;
(h) no event has occurred and is continuing that
constitutes a Payment Event or an Event of Default or
that would constitute an Event of Default or a Payment
Event but for the requirement that notice be given or
time elapse or both;
(i) the Guarantor is not engaged in the business
of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regula
tion 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 Guarantor and its Subsidiaries
subject to the restrictions of Sections 4(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);
(j) the Guarantor 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 Guarantor is a "Holding Company" as that
term is defined in, and is registered under, the
Public Utility Holding Company Act of 1935;
(k) 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 Guarantor and
its Subsidiaries, taken as a whole;
(l) 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 Bank, 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; and
(m) the Guarantor has not incurred, and does not
reasonably expect to incur, any withdrawal liability
under ERISA to any Multiemployer Plan.
ARTICLE III
Covenants of the Guarantor
3. The Guarantor shall, unless the Majority
Lenders consent in writing, so long as any Note shall
remain outstanding or there shall remain any amounts due
under the Credit Agreement or the First Guaranty or any
amount payable by the Guarantor hereunder shall remain
unpaid:
(a)(_) keep proper books of record and
account, all in accordance with generally accepted
accounting principles;
(b) except as otherwise permitted hereunder by
Section 4(c), preserve and keep in full force and
effect its existence and preserve and keep in full
force and effect its licenses, rights and franchises
to the extent necessary to carry on its business;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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
Guarantor, (A) consolidated balance sheets of the
Guarantor and its Subsidiaries as of the end of
such quarter and (B) consolidated statements of
income and retained earnings of the Guarantor 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 Guarantor 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 Guarantor, a copy of the
annual report for such year for the Guarantor and
its Subsidiaries, containing consolidated
financial statements for such year certified
without limitation as to scope and without any
qualification other than such qualification as
shall not indicate an inability on the part of
the Guarantor to perform its obligations
hereunder or under the Guaranty by Coopers &
Lybrand L.L.P.(or such other nationally
recognized public accounting firm as the Agent
may approve) and certified by a duly authorized
officer of the Guarantor 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
Guarantor and within 120 days after the end of
the fiscal year of the Guarantor, a certificate
of the duly authorized officer of the Guarantor,
stating that no Payment Event or Event of Default
hereunder has occurred and is continuing, or if a
Payment Event or Event of Default hereunder has
occurred and is continuing, a statement setting
forth details of such Payment Event or Event of
Default, as the case may be, and the action that
the Guarantor, the First Guarantor or the
Borrower, as the case may be, has taken and
proposes to take with respect thereto;
(iv) as soon as possible and in any
event within five days after the Guarantor has
knowledge of the occurrence of each Payment
Event, Event of Default and each event that, with
the giving of notice or lapse of time or both,
would constitute a Payment Event or an Event of
Default, continuing on the date of such
statement, a statement of the duly authorized
officer of the Guarantor setting forth details of
such Payment Event, Event of Default or event, as
the case may be, and the actions that the Guaran
tor, the First Guarantor or the Borrower, as the
case may be, has taken and proposes to take with
respect thereto;
(v) as soon as possible and in any
event within five days after the Guarantor
receives notice of the commencement of any
litigation against, or any arbitration,
administrative, governmental or regulatory
proceeding involving, the Guarantor or any of its
Subsidiaries, that, if adversely determined,
could reasonably be expected to have a material
adverse effect on the condition (financial or
otherwise), operations, business, properties or
prospects of the Guarantor, notice of such litiga
tion describing in reasonable detail the facts
and circumstances concerning such litigation and
the Guarantor's or such Subsidiary's proposed
actions in connection therewith;
(vi) promptly after the sending or
filing thereof, copies of all reports that the
Guarantor sends to any of its securities holders,
and copies of all reports and registration
statements which the Guarantor files with the SEC
or any national securities exchange pursuant to
the Securities Act of 1933, as amended or the
Securities Exchange Act of 1934, as amended;
(vii) as soon as possible and in any
event (A) within 30 days after the Guarantor
knows or has reason to know that any ERISA Termi
nation 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 Guarantor 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 Guarantor describing such ERISA
Termination Event and the action, if any, that
the Guarantor proposes to take with respect
thereto;
(viii) promptly and in any event
within two Business Days after receipt thereof by
the Guarantor from the PBGC, copies of each
notice received by the Guarantor 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
Guarantor from a Multiemployer Plan sponsor, a
copy of each notice received by the Guarantor
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 Guarantor or any of its
Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
ARTICLE IV
Negative Covenants of the Guarantor
4. The Guarantor shall not without the prior
written consent of the Majority Lenders (such prior written
consent not to be unreasonably withheld or delayed), so
long as any Note shall remain outstanding or there shall
remain any amounts due under the Credit Agreement or the
First Guaranty or any amount payable by the Guarantor
hereunder shall remain unpaid:
(a) 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 Guarantor 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 Guarantor; (v)
purchase money mortgages or other liens or purchase
money security interests upon or in any property
acquired or held by the Guarantor 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 Guarantor to
the Lenders hereunder are simultaneously and ratably
secured by such Lien pursuant to documentation
satisfactory to the Lenders;
(b) create, incur, assume or suffer to exist,
any Debt of the Guarantor other than:
(i) Debt under this Guaranty;
(ii) Debt under the Credit Agreement,
dated as of October 10, 1995, between Entergy
Corporation as borrower and Citibank, N.A. as
agent and under the Notes issued thereunder;
(_)(iii) Debt secured by Liens
permitted under Section 4(a);
(_)(iv) Debt as lessee under leases
which shall have been, or should be, in
accordance with generally accepted accounting
principles, recorded as capital leases;
(v) Debt incurred in the form of
endorsements in the normal course of business;
(vi) Guaranty Obligations (excluding
Guaranty Obligations described in clauses (i) and
(vii) hereof) and other Debt not to exceed
$735,000,000 (plus the principal amounts of any
partial payments of the Notes pursuant to the
Credit Agreement) in the aggregate at any one
time; and
(vii) Guaranty Obligations not
otherwise permitted hereunder, but disclosed on
Schedule I hereto.
(c) merge with or into or consolidate with or
into any other person, except that the Guarantor may
merge with any other Person, provided that,
immediately after giving effect to any such merger,
(i) the Guarantor 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 Guarantor'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
Payment 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 Guarantor 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; and
(d)(_) 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 Guarantor or a
Significant Subsidiary.
ARTICLE V
Events of Default
5. An Event of Default hereunder shall occur
if:
(a) the Guarantor fails to pay any sum due from
it hereunder or under the Guaranty at the time, in the
currency and in the manner specified herein or
therein; or
(b) any representation or statement made by the
Guarantor in this Agreement or in any notice or other
document, certificate or statement delivered by it
pursuant hereto or in connection herewith is or proves
to have been incorrect or misleading in any material
respect when made; or
(c) The Guarantor shall fail to perform or
observe (i) any term, covenant or agreement contained
in Sections 3 and 4 or (ii) any other term, covenant
or agreement contained in this Agreement on its part
to be performed or observed and the failure to perform
or observe any such term, covenant or agreement in
clauses (i) or (ii) shall remain unremedied for 30
days after written notice thereof shall have been
given to the Guarantor by the Agent or any Lender; or
(d) The Guarantor shall fail to pay any
principal of or premium or interest on any Debt of the
Guarantor that is outstanding in a principal amount in
excess of $50,000,000 in the aggregate 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 Guarantor, 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
Guarantor, 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, 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
Guarantor, 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 Guarantor 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 Guarantor or any
ERISA Affiliate of the Guarantor 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
Guarantor or any ERISA Affiliate of the Guarantor is,
shall have been or will be terminated or the subject
of termination proceedings under ERISA, or (iii) the
Guarantor or any ERISA Affiliate of the Guarantor 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
Guarantor or any ERISA Affiliate of the Guarantor
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).
(h) the Guarantor repudiates or threatens to
repudiate this Guaranty Agreement or the Guaranty; or
(i) at any time it is or becomes unlawful for
the Guarantor to perform or comply with any or all of
its obligations hereunder or under the Guaranty or any
of the obligations of the Guarantor hereunder or under
the Guaranty are not or cease to be legal, valid and
binding and, on demand from the Agent, payment of all
amounts owing under the Notes, the Credit Agreement,
the Guaranty and this Agreement shall not have been
made in full;
then, and in any such case or in the event of a Payment
Event and at any time thereafter, the Agent may (and, if so
instructed by the Majority Lenders, shall) by written
notice to the Borrower, the First Guarantor and the
Guarantor:
(i) (a) declare the Notes issued under
the Credit Agreement to be immediately due and
payable (whereupon the same shall become so
payable together with accrued interest thereon
and any other sums then owed by the Borrower
thereunder), (b) subject to the expiration of any
relevant grace period in the Credit Agreement,
declare the sums due under the First Guaranty to
be due and payable and (c) if such sums are not
paid when due, declare the Guaranty to be due and
payable; and
(ii) take such other action and pursue
such other remedy, whether at law or at equity,
as may be necessary or advisable to enforce the
rights of the Lender hereunder.
ARTICLE VI
Demand for Payment; Terms of Payment
6. If, pursuant to Section 5, the Agent
declares the Notes issued under the Credit Agreement to be
immediately due and payable and payment in full shall not
have been made within three Business Days of such
declaration, and the Agent shall not have been paid in full
under the First Guaranty in accordance with the terms
thereof, then the Agent shall demand payment under the
Guaranty and the same shall be paid within ten Business
Days of such demand.
ARTICLE VII
Withholding Taxes
7. All payments by the Guarantor under the
Guaranty Agreement and the Guaranty shall be made free and
clear of, and without deduction or withholding for or on
account of, any taxes, fees and charges of any nature
whatsoever ("Taxes"), unless such deduction or withholding
is required by law. If any such deduction or withholding
shall be required by law, then the Guarantor shall pay such
additional amounts as may be necessary in order that the
net amount received by the applicable Indemnified Person,
after such deduction or withholding, shall be equal to the
full amount that such Indemnified Person would have
received had no such Taxes been imposed.
Any amounts deducted or withheld by Guarantor for
or on account of Taxes shall be paid over to the government
or taxing authority imposing such Taxes on a timely basis,
and the Guarantor shall provide the applicable Indemnified
Person as soon as practicable with such tax receipts or
other official documentation with respect to the payment of
such Taxes as may be available.
ARTICLE VIII
Miscellaneous
8. (a) 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 Guarantor, at its address at 639
Loyola Avenue, New Orleans, LA 70113, Attention: Treasurer;
if to the Bank, at its Lending Office specified on the
signature page hereto; if to any other Lender, at its
Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent,
at its address at 299 Park Avenue, New York, New York
10171, Attention: Loan Administration, with a copy to Union
Bank of Switzerland, 1100 Louisiana, Suite 4500, Houston,
Texas 77002, Attention: Dan Boyle, Vice President; 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. Notices and
other communications given by the Guarantor to the Agent
shall be deemed given to the Lenders.
(b) No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right
hereunder, under this Guaranty Agreement, the Guaranty or
any other Facility Document 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 or in equity.
(c) The Guarantor 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 Guaranty
Agreement and the Guaranty, 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 Guarantor with
respect to the aforementioned expenses shall describe such
costs and expenses in reasonable detail. The Guarantor
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 Guaranty Agreement and
the Guaranty including, without limitation, reasonable
counsel fees and expenses in connection with the
enforcement of rights under this Section 8(c).
(d) The Guarantor hereby agrees to indemnify and
hold each 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 Guaranty Agreement and the Guaranty, or the use by the
Borrower of the proceeds of any loan, 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 Guarantor's obligations under this Section 8(d)
shall survive the repayment of all amounts owing to the
Lenders and the Agent under this Guaranty Agreement and the
Guaranty. If and to the extent that the obligations of the
Guarantor under this Section 8(d) are unenforceable for any
reason, the Guarantor agrees to make the maximum
contribution to the payment and satisfaction thereof which
is permissible under applicable law.
(e) The Guarantor undertakes to indemnify the
Agent and each Lender against any value added tax or
analogous tax, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default,
Payment Event or any Potential Event of Default hereunder.
(f) Upon the occurrence and during the
continuance of any Event of Default, 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 Guarantor against any and all
of the obligations of the Guarantor now or hereafter
existing under this Guaranty Agreement and the Guaranty,
whether or not such Lender shall have made any demand under
this Guaranty Agreement and the Guaranty and although such
obligations may be unmatured. Each Lender agrees promptly
to notify the Guarantor 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(f) are in addition to other rights and
remedies (including, without limitation, other rights of
set-off) which such Lender may have.
(g) No failure to exercise, nor any delay in
exercising, on the part of the Agent and the Lenders or
either of them, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or
other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
(h) This Guaranty Agreement and the Guaranty
shall become effective when it shall have been executed by
the Guarantor and the Agent, and thereafter shall be
binding upon and inure to the benefit of the Guarantor, the
Agent and each Lender and their respective successors and
assigns, except that the Guarantor shall not have the right
to assign its rights hereunder or any interest herein
without the prior written consent of the Majority Lenders.
(i) All payments required to be made by the
Guarantor hereunder shall be calculated without reference
to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of any
set-off or counterclaim.
(j) The Guarantor authorizes to the fullest
extent permitted by applicable law any Lender to apply any
credit balance to which the Guarantor is entitled on any
account of the Guarantor with that Lender in satisfaction
of any sum due and payable from the Guarantor to such
Lender hereunder but unpaid; for this purpose, the Lender
is authorized to purchase with the moneys standing to the
credit of any such account such other currencies as may be
necessary to effect such application. No Lender shall be
obliged to exercise any right given to it by this Section
8(j). In the event of the Lender exercising any right given
to it under this Section 8(j), such Lender shall
immediately notify the Agent.
(k) If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby
(l) Any provision of this Agreement and the
Guaranty may be amended only if the Guarantor and the
Majority Lenders so agree in writing. Any Event of Default
or breach of any provision of this Agreement and the
Guaranty may be waived before or after it occurs only if
the Majority Lenders so agree in writing but an amendment
or waiver which changes or relates to: (a) the amount of
the indebtedness of the Guarantor hereunder or under the
Guaranty, (b) the date on which any sum becomes payable by
the Guarantor hereunder or under the Guaranty, or (c) this
Section 8(l), shall require the agreement of each Lender.
(m) THIS GUARANTY AGREEMENT AND THE GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE CREDITORS AND THE
UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(n) Any legal action or proceeding with respect
to this Guaranty Agreement or the Guaranty may be brought
in the courts of the State of New York or of the United
States of America for the Southern District of New York,
and, by execution and delivery of this Guaranty Agreement,
the Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts. The
Guarantor hereby irrevocably designates, appoints and em
powers CT Corporation System with offices on the date
hereof at 1633 Broadway, New York, New York 10019, as its
designee, appointee and agent to receive and accept for and
on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall
cease to be available to act as such, the Guarantor agrees
to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this
provision satisfactory to the Agent which approval shall
not be unreasonably withheld. The Guarantor hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over the Guarantor, and agrees not to plead or
claim, in any legal action or proceeding with respect to
this Guaranty Agreement or the Guaranty brought in any of
the aforesaid courts, that any such court lacks
jurisdiction over the Guarantor. The Guarantor further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Guarantor at its
address set forth opposite its signature below, such
service to become effective 30 days after such mailing.
The Guarantor hereby irrevocably waives any objection to
such service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding
commenced hereunder that service of process was in any way
invalid or ineffective. Nothing herein shall affect the
right of any of the Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other
jurisdiction.
The Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty
Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead
or claim in any such court that such action or proceeding
brought in any such court has been brought in an
inconvenient forum.
(o) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY
AGREEMENT, THE OTHER FACILITY DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
(p) This Guaranty Agreement and the Guaranty 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>
AS WITNESS the hands of the duly authorized
representatives of the parties hereto the day and year
first before written.
ENTERGY CORPORATION
By
Title:
Name:
UNION BANK OF SWITZERLAND as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
EXHIBIT I
FORM OF GUARANTY BY ENTERGY CORPORATION
GUARANTY
GUARANTY, dated as of
(as amended, modified or supplemented from time to time,
this "Guaranty"), made by the undersigned (the
"Guarantor"). Except as otherwise defined in the Guaranty
Agreement (as defined below) or herein, terms used herein
and defined in the Credit Agreement (as defined below)
shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of
providing for the making of Loans to the Borrower (as used
herein, the term "Credit Agreement" means the Credit
Agreement described in this paragraph, as the same may be
amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring of
all or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, the Guarantor and the Agent have
entered into a Guaranty Agreement dated (the "Guaranty
Agreement");
WHEREAS, it is a condition to the making of Loans
to the Borrower that the Guarantor shall have executed and
delivered the Guaranty Agreement and this Guaranty; and
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation ("EEI"), has issued its guaranty dated the date
hereof in favor of the Agent (as amended from time to time,
the "First Guaranty") with respect to amounts payable by
the Borrower pursuant to the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the Guarantor, the receipt
and sufficiency of which are hereby acknowledged, the Guar
antor hereby covenants and agrees with each Creditor as
follows:
1. The Guarantor irrevocably and unconditionally
guarantees to the Creditors the full and prompt payment
when due (whether at the stated maturity, by acceleration
or otherwise) of all amounts payable by EEI under the First
Guaranty and under the First Guaranty Agreement (all such
amounts being herein collectively called the "Guaranteed
Obligations"). The Guarantor understands, agrees and
confirms that the Creditors may enforce this Guaranty up to
the full amount of the Guaranteed Obligations against the
Guarantor without proceeding against the Borrower, against
any security for the Guaranteed Obligations, or except as
and to the extent provided in Section 6 of the Guaranty
Agreement, under any other guaranty covering all or a
portion of the Guaranteed Obligations. All payments by the
Guarantor under this Guaranty shall be made as provided in
the Guaranty Agreement or otherwise on the same basis as
payments by EEI under the First Guaranty.
2. Subject to the provisions of Section 6 of the
Guaranty Agreement, the liability of the Guarantor
hereunder is exclusive and independent of any security for
or other guaranty of the Guaranteed Obligations or
obligations of the Borrower under the Credit Agreement, and
the liability of the Guarantor hereunder shall not be
affected or impaired by (a) any direction as to application
of payment by EEI, the Borrower or by any other party, (b)
any other continuing or other guaranty, undertaking or max
imum liability of a guarantor or of any other party as to
the Guaranteed Obligations or obligations of the Borrower
under the Credit Agreement, (c) any payment on or in
reduction of any such other guaranty or undertaking or (d)
any payment made to any Creditor on the Guaranteed
Obligations which any Creditor repays to the Borrower or
EEI pursuant to court order in any bankruptcy, reorgan
ization, arrangement, moratorium or other debtor relief
proceeding, and the Guarantor waives any right to the
deferral or modification of its obligations hereunder by
reason of any such proceeding.
3. Subject to the provisions of Section 6 of the
Guaranty Agreement, the obligations of the Guarantor
hereunder are independent of the obligations of any other
guarantor or the Borrower, and a separate action or actions
may be brought and prosecuted against the Guarantor whether
or not action is brought against any other guarantor or the
Borrower and whether or not any other guarantor of the
Borrower or the Borrower be joined in any such action or
actions. The Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations
as to the Guarantor.
4. The Guarantor hereby waives (to the fullest
extent permitted by applicable law) notice of acceptance of
this Guaranty and notice of any liability to which it may
apply, and waives promptness, diligence, presentment,
demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other
action by the Agent or any other Creditor against, and any
other notice to, any party liable thereon, except as and to
the extent provided in Section 6 of the Guaranty Agreement.
5. Any Creditor may at any time and from time to
time without the consent of, or notice to, the Guarantor,
without incurring responsibility to the Guarantor, without
impairing or releasing the obligations of the Guarantor
hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of,
renew, accelerate or alter, any of the Guaranteed
Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any
offset thereagainst;
(c) exercise or refrain from exercising any
rights against the Borrower, the First Guarantor and
the Guarantor (except as provided in Section 6 of the
Guaranty Agreement) or others or otherwise act or
refrain from acting;
(d) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower or of EEI to
creditors of EEI;
(e) apply any sums by whomsoever paid or howso
ever realized to any liability or liabilities of the
Borrower to the Creditors regardless of what liabil
ities of the Borrower remain unpaid;
(f) consent to, or waive any breach of, any act,
omission or default under the Facility Documents or
any of the instruments or agreements referred to there
in, or otherwise amend, modify or supplement the
Facility Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to
in this Guaranty which may deprive the Guarantor of
its right to subrogation against the Borrower and/or
EEI to recover full indemnity for any payments made
pursuant to this Guaranty.
6. No invalidity, irregularity or unenforce
ability of all or any part of the Guaranteed Obligations or
of the obligations of the Borrower under the Credit
Agreement or of any security therefor shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall
be primary, absolute and unconditional notwithstanding the
occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full
of the Guaranteed Obligations and the obligations of the
Borrower under the Credit Agreement.
7. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or
remedies which any Creditor would otherwise have. No
notice to or demand on the Guarantor in any case shall
entitle the Guarantor to any other further notice or demand
in similar or other circumstances or constitute a waiver of
the rights of any Creditor to any other or further action
in any circumstances without notice or demand. It is not
necessary for any Creditor to inquire into the capacity or
powers of the Guarantor or the officers, directors,
partners or agents acting or purporting to act on its be
half, and any indebtedness made or created in reliance upon
the professed exercise of such powers shall be guaranteed
hereunder.
8. (a) Except as and to the extent provided in
Section 6 of the Guaranty Agreement, the Guarantor waives
any right (except as shall be required by applicable
statute or law and cannot be waived) to require the
Creditors to: (i) proceed against the Borrower, any other
guarantor of the Borrower or any other party; (ii) proceed
against or exhaust any security held from the Borrower, any
other guarantor of the Borrower or any other party; or
(iii) pursue any other remedy in the Creditors' power
whatsoever. The Guarantor waives (to the fullest extent
permitted by applicable law) any defense based on or
arising out of any defense of the Borrower, any other
guarantor of the Borrower or any other party other than
payment in full of the Guaranteed Obligations and the
obligations of the Borrower under the Notes and the Credit
Agreement, including, without limitation, any defense based
on or arising out of the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower
or EEI other than payment in full of the Guaranteed
Obligations and the obligations of the Borrower under the
Notes and the Credit Agreement. The Creditors may, at
their election, foreclose on any security held by the Agent
or the other Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right
or remedy the Creditors may have against the Guarantor or
any other party, or any security, without affecting or
impairing in any way the liability of the Guarantor
hereunder except to the extent the Guaranteed Obligations
and the obligations of the Borrower under the Notes and the
Credit Agreement have been paid in full. The Guarantor
waives any defense arising out of any such election by the
Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or
other right or remedy of the Guarantor against the Borrower
or any other party or any security;
(b) Except as and to the extent provided in
Section 6 of the Guaranty Agreement, the Guarantor waives
(to the fullest extent permitted by applicable law) all
presentments, demands for performance, protests and
notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional
indebtedness. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's and
EEI's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of
the risks which the Guarantor assumes and incurs hereunder,
and agrees that the Creditors shall have no duty to advise
the Guarantor of information known to them regarding such
circumstances or risks.
9. The Guarantor agrees to pay all reasonable
out-of-pocket costs and expenses of each Creditor in
connection with the enforcement of this Guaranty and any
amendment, waiver or consent relating hereto (including,
without limitation, the reasonable fees and disbursements
of counsel (including in-house counsel) employed by any of
the Creditors).
10. This Guaranty shall be binding upon the
Guarantor and its successors and assigns and shall inure to
the benefit of the Creditors and their successors and
assigns.
11. This Guaranty or any provision hereof may be
amended only if the Guarantor and the Majority Lenders so
agree in writing. An amendment or waiver which changes or
relates to: (a) the amount of indebtedness of the Guarantor
hereunder or under the Guaranty Agreement, (b) the date on
which any sum becomes payable by the Guarantor hereunder or
under the Guaranty Agreement, or (c) this Section 11, shall
in each case require the agreement of each Lender.
12. In addition to any rights now or hereafter
granted under applicable law (including, without
limitation, Section 151 of the New York Debtor and Creditor
Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of
Default, such term to mean and include any "Event of
Default" as defined in the Credit Agreement and in the
Guaranty Agreement, each Creditor is hereby authorized at
any time or from time to time, without notice to the
Guarantor or to any other Person, any such notice being
expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Creditor to
or for the credit or the account of the Guarantor, against
and on account of the obligations and liabilities of the
Guarantor to such Creditor under this Guaranty,
irrespective of whether or not such Creditor shall have
made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
13. All notices, requests, demands or other com
munications pursuant hereto shall be deemed to have been
duly given or made when delivered to the Person to which
such notice, request, demand or other communication is
required or permitted to be given or made under this Guar
anty, addressed to such party at (i) in the case of any
Creditor, as provided in the Credit Agreement and (ii) in
the case of the Guarantor, at its address set forth
opposite its signature below; or in any case at such other
address as any of the Persons listed above may hereafter
notify the others in writing.
14. If claim is ever made upon any Creditor for
repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with
any such claimant (including the Guarantor), then and in
such event the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding
upon the Guarantor, notwithstanding any revocation hereof
or the cancellation of any Note or other instrument evidenc
ing any liability of the Borrower, and the Guarantor shall
be and remain liable to the aforesaid payees hereunder for
the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such
payee.
15. Any acknowledgment or new promise, whether
by payment of principal or interest or otherwise and
whether by the Borrower or other Persons liable in respect
of the Guaranteed Obligations (including the Guarantor),
with respect to any of the Guaranteed Obligations shall, if
the statute of limitations in favor of the Guarantor
against any Creditor shall have commenced to run, toll the
running of such statute of limitations, and if the period
of such statute of limitations shall have expired, prevent
the operation of such statute of limitations.
16. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGA
TIONS OF THE CREDITORS AND OF THE UNDERSIGNED HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Guaranty or any other
Facility Document to which the Guarantor is a party may be
brought in the courts of the State of New York or of the
United States of America for the Southern District of New
York, and, by execution and delivery of this Guaranty, the
Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts. The
Guarantor hereby irrevocably designates, appoints and
empowers CT Corporation System (with offices on the date
hereof at 1633 Broadway, New York, New York 10019) as its
designee, appointee and agent to receive and accept for and
on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall
cease to be available to act as such, the Guarantor agrees
to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this
provision satisfactory to the Agent which approval shall
not be unreasonably withheld. The Guarantor hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over the Guarantor, and agrees not to plead or
claim, in any legal action or proceeding with respect to
this Guaranty or any other Facility Document to which the
Guarantor is a party brought in any of the aforesaid
courts, that any such court lacks jurisdiction over the
Guarantor. The Guarantor further irrevocably consents to
the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage
prepaid, to the Guarantor at its address set forth opposite
its signature below, such service to become effective 30
days after such mailing. The Guarantor hereby irrevocably
waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any
action or proceeding commenced hereunder or under any other
Facility Document to which the Guarantor is a party that
service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the
Creditors to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed
against the Guarantor in any other jurisdiction.
(b) The Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or any
other Facility Document brought in the courts referred to
in clause (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that
such action or proceeding brought in any such court has
been brought in an inconvenient forum.
17. This Guaranty may be executed in any number
of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall
together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be
lodged with the Guarantor and the Agent.
18. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUN
TERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE
OTHER FACILITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
19. All payments made by the Guarantor hereunder
will be made without setoff, counterclaim or other defense.
20. (a) It is the desire and intent of the
Guarantor and the Creditors that this Guaranty shall be
enforced against the Guarantor to the fullest extent per
missible under the laws and public policies applied in each
jurisdiction in which enforcement is sought.
(b) If, however, and to the extent, that the
obligations of the Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable
state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations
of the Guarantor shall be deemed to be reduced and the
affected Guarantor shall pay the maximum amount of the Guar
anteed Obligations which would be permissible under applic
able law.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be executed and delivered as of the date first
above written.
639 Loyola Avenue ENTERGY CORPORATION
New Orleans, LA 70113
By
Title:
Name:
Accepted and Agreed to:
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
FIRST AMENDMENT
Dated as of March 12, 1996, to the
U.S.$65,000,000
CREDIT AGREEMENT,
Dated as of November 27, 1995
Among
EP EDEGEL, INC.
as Borrower,
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
individually and
UNION BANK OF SWITZERLAND
as Agent
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union Bank
of Switzerland, Houston Agency (the "Bank") and Union Bank
of Switzerland, as Agent (the "Agent") entered into a
Credit Agreement, dated as of November 27, 1995 (the
"Credit Agreement") providing for the making of the Loan to
the Borrower; and
WHEREAS, the Lenders desire to amend the Credit
Agreement in accordance with Section 8.01 of the Credit
Agreement.
NOW, THEREFORE, in consideration of the making of the
Credit Agreement and the Loan and the terms, covenants and
conditions set forth therein and herein, the parties hereto
agree as follows:
1. Defined terms used herein shall have the meanings
given to them in the Credit Agreement, except as herein
indicated to the contrary.
2. Section 1.01 of the Credit Agreement shall be
amended in part by deleting the definitions of "First
Guaranty Agreement", "Quotation Date", "Second
Guaranty Agreement" and "Significant Subsidiary" in their
entirety and by substituting therefor the following :
"First Guaranty Agreement" means the
guaranty agreement dated November 27, 1995
between the First Guarantor and the Agent as
required by Section 3.01(a)(xii) hereof.
"Quotation Date" means, in relation to
any Interest Period for which an interest rate is
to be determined, the second Business Day prior
to the first day of such Interest Period.
"Second Guaranty Agreement" means the
Guaranty Agreement dated November 27, 1995
between the Second Guarantor and the Agent as
required by Section 3.01(a)(xiv) hereunder.
"Significant Subsidiary" means LP&L,
SERI, AP&L, MP&L, GSU, and any other Subsidiary
of the Second Guarantor: (i) the total assets
(after intercompany eliminations) of which exceed
5% of the total assets of the Second Guarantor
and its Subsidiaries or (ii) the net worth of
which exceed 5% of the Consolidated Net Worth of
the Second Guarantor and its Subsidiaries, in
each case as shown on the most recent audited
consolidated balance sheet of the Second
Guarantor and its Subsidiaries; provided,
however, that, notwithstanding the foregoing,
neither Entergy Power Development International
Corporation, a Delaware corporation ("EPDIC"),
nor any of EPDIC's direct and indirect
Subsidiaries, shall be deemed to be Significant
Subsidiaries.
3. Section 1.01 of the Credit Agreement is further
amended by lower casing the first letter of the words
"Interest Rate" in line one of the definition of
"Applicable Margin" and by lower casing the first letter of
the word "Guaranty" in the definition of "First Guaranty".
4. Section 6.01 of the Credit Agreement shall be
amended in part by deleting subsections (d) and (e) in
their entirety and substituting therefor the following
subsections (d) and (e) and by adding subsection (f) to
read in its entirety as follows:
(d) The First Guarantor defaults, or
there shall have occurred an Event of Default (as
defined in the First Guaranty Agreement), under
the First Guaranty Agreement or under the First
Guaranty; or
(e) The Second Guarantor defaults, or
there shall have occurred an Event of Default (as
defined in the Second Guaranty Agreement) under
the Second Guaranty Agreement or under the Second
Guaranty; or
(f) The Borrower shall make a general
assignment for the benefit of creditors, or any
proceeding shall be instituted by or against the
Borrower 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 any substantial part of its property) shall
occur, or the Borrower shall take any corporate
action to authorize or to consent to any of the
actions set forth above in this subsection (f);
5. Section 8.01 of the Credit Agreement shall be
amended by inserting the word "or" before subsection (d)
and deleting subsection (e) in its entirety and the word
", or" before it.
6. Except as amended herein, the Credit Agreement
shall be unchanged and the Credit Agreement shall
henceforth consist of the Credit Agreement as amended by
this First Amendment.
7. This First Amendment may be executed in any number
of counterparts by the parties hereto, 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>
WITNESS the hands of the duly authorized
representatives of the parties hereto as of the day and
year first above written.
EP EDEGEL, INC. UNION BANK OF SWITZERLAND
HOUSTON AGENCY, individually
By By
Title: Title:
Name: Name:
By
Title:
Name:
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
Acknowledged and consented by:
ENTERGY CORPORATION ENTERGY ENTERPRISES, INC.
By: /s/William J, Regan, Jr. By:
Title: Vice President and Treasurer Title:
Name: William J. Regan, Jr. Name:
_______________________________
1/ If the Assignee is organized under the laws of a
jurisdiction outside the United States.
2/ This date should be no earlier than the date of
acceptance by the Agent.
Exhibit C-1(i)
ANNEX I
FIRST GUARANTY
FIRST GUARANTY, dated as of November 27, 1995 (as
amended, modified or supplemented from time to time, this
"First Guaranty"), made by the undersigned (the
"Guarantor"). Except as otherwise defined in the First
Guaranty Agreement (as defined below) or herein, terms used
herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of November 27, 1995
providing for the making of Loans to the Borrower (as used
herein, the term "Credit Agreement" means the Credit
Agreement described in this paragraph, as the same may be
amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring of
all or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, the First Guarantor and the Agent have
entered into a First Guaranty Agreement dated November 27,
1995 (the "First Guaranty Agreement"); and
WHEREAS, it is a condition to the making of Loans
to the Borrower that the First Guarantor shall have
executed and delivered the First Guaranty Agreement and
this First Guaranty;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the First Guarantor, the
receipt and sufficiency of which are hereby acknowledged,
the First Guarantor hereby covenants and agrees with each
Creditor as follows:
1. The First Guarantor irrevocably and
unconditionally guarantees to the Creditors the full and
prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all amounts payable by the
Borrower under the Credit Agreement and the Notes (all such
amounts being herein collectively called the "Guaranteed
Obligations). The First Guarantor understands, agrees and
confirms that the Creditors may enforce this First Guaranty
up to the full amount of the Guaranteed Obligations against
the First Guarantor without proceeding against the
Borrower, against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations. All payments by the
First Guarantor under this First Guaranty shall be made as
provided in the First Guaranty Agreement.
2. Subject to the provisions of Section 5 of the
First Guaranty Agreement, the liability of the First
Guarantor hereunder is exclusive and independent of any
security for or other guaranty of the Guaranteed
Obligations, and the liability of the First Guarantor
hereunder shall not be affected or impaired by (a) any
direction as to application of payment by the Borrower or
by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations, (c)
any payment on or in reduction of any such other guaranty
or undertaking, or (d) any payment made to any Creditor on
the Guaranteed Obligations which any Creditor repays to the
Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor
relief proceeding, and the Guarantor waives any right to
the deferral or modification of its obligations hereunder
by reason of any such proceeding.
3. Subject to the provisions of Section 5 of the
First Guaranty Agreement, the obligations of the First
Guarantor hereunder are independent of the obligations of
any other guarantor or the Borrower, and a separate action
or actions may be brought and prosecuted against the First
Guarantor whether or not an action is brought against any
other guarantor or the Borrower and whether or not any
other guarantor of the Borrower or the Borrower be joined
in any such action or actions. The First Guarantor waives,
to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or
the enforcement thereof. Any payment by the Borrower or
other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the
statute of limitations as to the First Guarantor.
4. The First Guarantor hereby waives (to the
fullest extent permitted by applicable law) notice of accep
tance of this First Guaranty and notice of any liability to
which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor
or nonpayment of any such liabilities, suit or taking of
other action by the Agent or any other Creditor against,
and any other notice to, any party liable thereon, except
as and to the extent provided in Section 5 of the First
Guaranty Agreement.
5. Any Creditor may at any time and from time to
time without the consent of, or notice to, the First
Guarantor, without incurring responsibility to the First
Guarantor, without impairing or releasing the obligations
of the First Guarantor hereunder, upon or without any terms
or conditions and in whole or in part:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of,
renew, accelerate or alter, any of the Guaranteed
Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any
offset thereagainst;
(c) exercise or refrain from exercising any
rights against the Borrower and the First Guarantor
(except as provided in Section 5 of the First Guaranty
Agreement) or others or otherwise act or refrain from
acting;
(d) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower;
(e) apply any sums by whomsoever paid or howso
ever realized to any liability or liabilities of the
Borrower to the Creditors regardless of what liabil
ities of the Borrower remain unpaid;
(f) consent to, or waive any breach of, any act,
omission or default under the Facility Documents or
any of the instruments or agreements referred to there
in, or otherwise amend, modify or supplement the
Facility Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to
in this First Guaranty which may deprive the First
Guarantor of its right to subrogation against the
Borrower.
6. No invalidity, irregularity or unenforce
ability of all or any part of the Guaranteed Obligations or
of the obligations of the Borrower under the Credit
Agreement or of any security therefor shall affect, impair
or be a defense to this First Guaranty, and this First
Guaranty shall be primary, absolute and unconditional not
withstanding the occurrence of any event or the existence
of any other circumstances which might constitute a legal
or equitable discharge of a surety or guarantor except
payment in full of the Guaranteed Obligations.
7. This First Guaranty is a continuing one and
all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or
remedies which any Creditor would otherwise have. No
notice to or demand on the First Guarantor in any case
shall entitle the First Guarantor to any other further
notice or demand in similar or other circumstances or con
stitute a waiver of the rights of any Creditor to any other
or further action in any circumstances without notice or
demand. It is not necessary for any Creditor to inquire
into the capacity or powers of the First Guarantor or the
officers, directors, partners or agents acting or purport
ing to act on its behalf, and any indebtedness made or
created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
8. (a) Except as and to the extent provided in
Section 5 of the First Guaranty Agreement, the First
Guarantor waives any right (except as shall be required by
applicable statute or law and cannot be waived) to require
the Creditors to: (i) proceed against the Borrower, any
other guarantor of the Borrower or any other party; (ii)
proceed against or exhaust any security held from the
Borrower, any other guarantor of the Borrower or any other
party; or (iii) pursue any other remedy in the Creditors'
power whatsoever. The First Guarantor waives (to the
fullest extent permitted by applicable law) any defense
based on or arising out of any defense of the Borrower, any
other guarantor of the Borrower or any other party other
than payment in full of the Guaranteed Obligations,
including, without limitation, any defense based on or
arising out of the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower
other than payment in full of the Guaranteed Obligations.
The Creditors may, at their election, foreclose on any
security held by the Agent or the other Creditors by one or
more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or
exercise any other right or remedy the Creditors may have
against the First Guarantor or any other party, or any
security, without affecting or impairing in any way the
liability of the First Guarantor hereunder except to the
extent the Guaranteed Obligations and the obligations of
the Borrower under the Notes and the Credit Agreement have
been paid in full. The First Guarantor waives any defense
arising out of any such election by the Creditors, even
though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or
remedy of the Guarantor against the Borrower or any other
party or any security;
(b) Except as and to the extent provided in
Section 5 of the First Guaranty Agreement, the First
Guarantor waives (to the fullest extent permitted by
applicable law) all presentments, demands for performance,
protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this First Guaranty, and
notices of the existence, creation or incurring of new or
additional indebtedness. The First Guarantor assumes all
responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of
the risks which the First Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty
to advise the First Guarantor of information known to them
regarding such circumstances or risks.
9. The First Guarantor agrees to pay all
reasonable out-of-pocket costs and expenses of each
Creditor in connection with the enforcement of this First
Guaranty and any amendment, waiver or consent relating
hereto (including, without limitation, the reasonable fees
and disbursements of counsel (including in-house counsel)
employed by any of the Creditors).
10. This First Guaranty shall be binding upon
the First Guarantor and its successors and assigns and
shall inure to the benefit of the Creditors and their
successors and assigns.
11. This First Guaranty or any provision hereof
may be amended only if the First Guarantor and the Majority
Lenders so agree in writing. An amendment or waiver which
changes or relates to: (a) the amount of indebtedness of
the First Guarantor hereunder or under the First Guaranty
Agreement, (b) the date on which any sum becomes payable by
the First Guarantor hereunder or under the First Guaranty
Agreement, or (c) this Section 11, shall in each case
require the agreement of each Lender.
12. In addition to any rights now or hereafter
granted under applicable law (including, without
limitation, Section 151 of the New York Debtor and Creditor
Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of
Default, such term to mean and include any "Event of
Default" as defined in the Credit Agreement, each Creditor
is hereby authorized at any time or from time to time,
without notice to the First Guarantor or to any other
Person, any such notice being expressly waived, to set off
and to appropriate and apply any and all deposits (general
or special) and any other indebtedness at any time held or
owing by such Creditor to or for the credit or the account
of the First Guarantor, against and on account of the
obligations and liabilities of the First Guarantor to such
Creditor under this First Guaranty, irrespective of whether
or not such Creditor shall have made any demand hereunder
and although said obligations, liabilities, deposits or
claims, or any of them, shall be contingent or unmatured.
13. All notices, requests, demands or other com
munications pursuant hereto shall be deemed to have been
duly given or made when delivered to the Person to which
such notice, request, demand or other communication is
required or permitted to be given or made under this First
Guaranty, addressed to such party at (i) in the case of any
Creditor, as provided in the Credit Agreement and (ii) in
the case of the First Guarantor, at its address set forth
opposite its signature below; or in any case at such other
address as any of the Persons listed above may hereafter
notify the others in writing.
14. If claim is ever made upon any Creditor for
repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with
any such claimant (including the First Guarantor), then and
in such event the First Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be
binding upon the First Guarantor, notwithstanding any
revocation hereof or the cancellation of any Note or other
instrument evidencing any liability of the Borrower, and
the First Guarantor shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never
originally been received by any such payee.
15. Any acknowledgment or new promise, whether
by payment of principal or interest or otherwise and
whether by the Borrower or other Persons liable in respect
of the Guaranteed Obligations (including the First
Guarantor), with respect to any of the Guaranteed
Obligations shall, if the statute of limitations in favor
of the First Guarantor against any Creditor shall have
commenced to run, toll the running of such statute of
limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of
such statute of limitations.
16. (a) THIS FIRST GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF THE CREDITORS AND OF THE UNDERSIGNED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this First Guaranty or any other
Facility Document to which the First Guarantor is a party
may be brought in the courts of the State of New York or of
the United States of America for the Southern District of
New York, and, by execution and delivery of this First
Guaranty, the First Guarantor hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the
aforesaid courts. The First Guarantor hereby irrevocably
designates, appoints and empowers CT Corporation System
(with offices on the date hereof at 1633 Broadway, New
York, New York 10019) as its designee, appointee and agent
to receive and accept for and on its behalf, and in respect
of its property, service of any and all legal process, sum
mons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee,
appointee and agent shall cease to be available to act as
such, the First Guarantor agrees to designate a new
designee, appointee and agent in New York City on the terms
and for the purposes of this provision satisfactory to the
Agent which approval shall not be unreasonably withheld.
The First Guarantor hereby further irrevocably waives any
claim that any such courts lack jurisdiction over the First
Guarantor, and agrees not to plead or claim, in any legal
action or proceeding with respect to this First Guaranty or
any other Facility Document to which the First Guarantor is
a party brought in any of the aforesaid courts, that any
such court lacks jurisdiction over the First Guarantor.
The First Guarantor further irrevocably consents to the
service of process out of any of the aforementioned courts
in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid,
to the First Guarantor at its address set forth opposite
its signature below, such service to become effective 30
days after such mailing. The First Guarantor hereby
irrevocably waives any objection to such service of process
and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder or
under any other Facility Document to which the First
Guarantor is a party that service of process was in any way
invalid or ineffective. Nothing herein shall affect the
right of any of the Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the First Guarantor in any other
jurisdiction.
(b) The First Guarantor hereby irrevocably
waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or pro
ceedings arising out of or in connection with this First
Guaranty or any other Facility Document brought in the
courts referred to in clause (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any
such court that such action or proceeding brought in any
such court has been brought in an inconvenient forum.
17. This First Guaranty may be executed in any
number of counterparts and by the different parties hereto
on separate counterparts, each of which when so executed
and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be
lodged with the First Guarantor and the Agent.
18. THE FIRST GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS FIRST GUARANTY, THE OTHER FACILITY DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
19. All payments made by the First Guarantor
hereunder will be made without setoff, counterclaim or
other defense.
20. (a) It is the desire and intent of the
First Guarantor and the Creditors that this First Guaranty
shall be enforced against the First Guarantor to the
fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement
is sought.
(b) If, however, and to the extent, that the
obligations of the First Guarantor under this First
Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without
limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the
amount of the Guaranteed Obligations of the First Guarantor
shall be deemed to be reduced and the affected First
Guarantor shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable
law.
<PAGE>
IN WITNESS WHEREOF, the First Guarantor has
caused this First Guaranty to be executed and delivered as
of the date first above written.
900 South Shackleford Road
ENTERGY ENTERPRISES, INC.
Little Rock, Arkansas 72211
By
Title:
Name:
Accepted and Agreed to:
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
FIRST AMENDMENT
Dated as of March 12, 1996, to the
FIRST GUARANTY,
Dated as of November 27, 1995
Between
ENTERGY ENTERPRISES, INC.
as First Guarantor,
and
UNION BANK OF SWITZERLAND
as Agent
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc (the "Borrower"), Union Bank
of Switzerland, Houston Agency (the "Bank") and Union Bank
of Switzerland, as Agent (the "Agent"), entered into a
Credit Agreement, dated as of November 27, 1995 (the
"Credit Agreement"), providing for the making of the Loan
to the Borrower;
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation which is a wholly-owned Subsidiary of the
Guarantor, has executed and delivered its First Guaranty
Agreement, dated as of November 27, 1995, in favor of the
Agent with respect to the obligations of the Borrower under
the Credit Agreement; and
WHEREAS, the Lenders desire to amend the First
Guaranty in accordance with Section 11 of the First
Guaranty.
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to the First Guarantor and the
terms, covenants and conditions set forth therein and
herein, the parties hereto agree as follows:
1. Defined terms used herein shall have the meanings
given to them in the First Guaranty Agreement, except as
otherwise defined in the Credit Agreement or herein.
2. The First Guaranty shall be amended so that on
page one of the First Guaranty the words "Annex I" which
appear in the upper right hand corner shall be deleted and
the words "the `Guarantor'" which appear in parenthesis in
line 3 shall be deleted and the words "the `First
Guarantor'" substituted therefor.
3. Except as amended herein, the First Guaranty shall
be unchanged and the First Guaranty shall henceforth
consist of the First Guaranty as amended by this First
Amendment.
4. This First Amendment 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>
WITNESS the hands of the duly authorized
representatives of the parties hereto as of the day and
year first above written.
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
ENTERGY ENTERPRISES, INC.
By
Title:
Name:
<PAGE>
EXECUTION COPY
FIRST AMENDMENT
Dated as of March 12, 1996, to the
FIRST GUARANTY,
Dated as of November 27, 1995
Between
ENTERGY ENTERPRISES, INC.
as First Guarantor,
and
UNION BANK OF SWITZERLAND
as Agent
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc (the "Borrower"), Union Bank
of Switzerland, Houston Agency (the "Bank") and Union Bank
of Switzerland, as Agent (the "Agent"), entered into a
Credit Agreement, dated as of November 27, 1995 (the
"Credit Agreement"), providing for the making of the Loan
to the Borrower;
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation which is a wholly-owned Subsidiary of the
Guarantor, has executed and delivered its First Guaranty
Agreement, dated as of November 27, 1995, in favor of the
Agent with respect to the obligations of the Borrower under
the Credit Agreement; and
WHEREAS, the Lenders desire to amend the First
Guaranty in accordance with Section 11 of the First
Guaranty.
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to the First Guarantor and the
terms, covenants and conditions set forth therein and
herein, the parties hereto agree as follows:
1. Defined terms used herein shall have the meanings
given to them in the First Guaranty Agreement, except as
otherwise defined in the Credit Agreement or herein.
2. The First Guaranty shall be amended so that on
page one of the First Guaranty the words "Annex I" which
appear in the upper right hand corner shall be deleted and
the words "the `Guarantor'" which appear in parenthesis in
line 3 shall be deleted and the words "the `First
Guarantor'" substituted therefor.
3. Except as amended herein, the First Guaranty shall
be unchanged and the First Guaranty shall henceforth
consist of the First Guaranty as amended by this First
Amendment.
4. This First Amendment 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>
WITNESS the hands of the duly authorized
representatives of the parties hereto as of the day and
year first above written.
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
ENTERGY ENTERPRISES, INC.
By
Title:
Name:
<PAGE>
FIRST GUARANTY AGREEMENT
FIRST GUARANTY AGREEMENT, dated as of November
27, 1995 (as amended, modified or supplemented from time to
time, this "First Guaranty Agreement"), made between
Entergy Enterprises, Inc. (the "First Guarantor") and Union
Bank of Switzerland as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of November 27, 1995
providing for the making of the Loan to the Borrower (as
used herein, the term "Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same
may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring all
or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, it is a condition to the making of Loans
to the Borrower that the First Guarantor shall have
executed and delivered this First Guaranty Agreement and a
First Guaranty in the form of Annex I attached hereto;
WHEREAS, the Borrower is an indirect wholly-owned
Subsidiary of the Second Guarantor and the First Guarantor
a direct wholly-owned Subsidiary of the Second Guarantor;
and
WHEREAS, the First Guarantor will obtain direct
and indirect economic, financial and other benefits from
the Loan to be made to the Borrower under the Credit
Agreement and hence desires to execute this First Guaranty
Agreement and a First Guaranty in order to satisfy the
conditions described in the preceding paragraph and to
induce the Bank to make the Loan to the Borrower;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the First Guarantor, the
receipt and sufficiency of which are hereby acknowledged,
the First Guarantor hereby makes the following representa
tions and warranties to the Creditors and hereby covenants
and agrees with each Creditor as follows:
ARTICLE I
Definitions
I. As used in this First Guaranty 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):
"Agreement" shall mean this First Guaranty
Agreement.
"Creditors" shall mean all Lenders party from
time to time to the Credit Agreement and the Agent.
"Indemnified Person" shall mean the Lenders, the
Agent and their respective Affiliates and their respective
officers, directors, employees and professional advisors.
"Event of Default" shall have the meaning set
forth in Section 4.
"First Guaranty" shall mean the First Guaranty to
be executed and delivered as herein provided.
"Guarantor" shall mean Entergy Corporation.
"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.
"Payment Event" shall mean an Event of Default
(as defined in the Credit Agreement) under the Credit
Agreement (other than the events specified in Sections
6.01(d) and (e) thereof).
"Potential Event of Default" means any event
which may become (with the passage of time, the giving of
notice, the making of any determination hereunder or any
combination thereof) an Event of Default.
"SEC Order" means Order (File No. 70-8105) of the
Securities and Exchange Commission (Release No. 35-26322)
under the Public Utility Holding Company Act of 1935.
Except as otherwise defined herein, terms used
herein and defined in the Credit Agreement shall be used
herein as therein defined.
ARTICLE II
Representations and Warranties
2. The First Guarantor represents and warrants
that:
(a) the First Guarantor is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Louisiana 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) neither the execution, delivery or perform
ance by the First Guarantor of this First Guaranty
Agreement and the First Guaranty nor compliance by it
with the terms and provisions hereof or thereof (i)
will contravene any applicable provision of any law,
statute, rule or regulation, or any order, writ,
injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute
a default under, or result in the creation or
imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the
First Guarantor pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement,
credit agreement or any other agreement or other
instrument to which the First Guarantor is a party or
by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate
any provision of the certificate of incorporation or
by-laws (or other governing instrument) of the First
Guarantor or any of its Subsidiaries;
(c) the First Guarantor has the corporate power
and authority to execute, deliver and carry out the
terms and provisions of this First Guaranty Agreement
and the First Guaranty and has taken all necessary
corporate action to authorize the execution, delivery
and performance by it of each such document. The
First Guarantor has duly executed and delivered this
First Guaranty Agreement and the First Guaranty and
each such document constitutes the legal, valid and
binding obligation of the First Guarantor enforceable
in accordance with its terms, except to the extent
that the enforceability hereof or thereof may be
limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights gener
ally and by equitable principles (regardless of
whether enforcement is sought in equity or at law);
(d) no order, consent, approval, license, author
ization or validation of, or filing, recording or
registration with, or exemption by, any governmental
or public body or authority, or any subdivision
thereof, is required to authorize or make lawful the
execution, delivery and performance of this First
Guaranty Agreement and the First Guaranty, or is
required in order to make the First Guaranty Agreement
and the First Guaranty the legal, valid and binding
obligations of the First Guarantor except for the SEC
Order which is in full force and effect;
(e) it has not taken any corporate action nor
have any other steps been taken or legal proceedings
been started or (to the best of the First Guarantor's
knowledge and belief) threatened against the First
Guarantor for its winding-up, dissolution,
administration or re-organization or for the
appointment of a receiver, administrator, trustee or
similar officer of it or of any or all of its assets
or revenues;
(f) the First Guarantor 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 First
Guarantor and its Subsidiaries 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); and
(g) the First Guarantor 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.
ARTICLE III
Covenants of the First Guarantor
3. The First Guarantor shall, unless the
Majority Lenders consent in writing, so long as any Note
shall remain outstanding or there shall remain any amounts
due under the Credit Agreement or any amount payable by the
First Guarantor hereunder shall remain unpaid:
(a)(_) keep proper books of record and
account, all in accordance with generally accepted
accounting principles;
(b) 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; and
(c) 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.
ARTICLE IV
Events of Default
4. An Event of Default hereunder shall occur
if:
(a) the First Guarantor fails to pay any sum due
from it hereunder or under the First Guaranty at the
time, in the currency and in the manner specified
herein or therein; or
(b) any representation or statement made by the
First Guarantor in this Agreement or in any notice or
other document, certificate or statement delivered by
it pursuant hereto or in connection herewith is or
proves to have been incorrect or misleading in any
material respect when made; or
(c) The First Guarantor shall fail to perform or
observe (i) any term, covenant or agreement contained
in Section 3 or (ii) any other term, covenant or
agreement contained in this Agreement on its part to
be performed or observed and the failure to perform or
observe any such term, covenant or agreement in
clauses (i) or (ii) shall remain unremedied for 30
days after written notice thereof shall have been
given to the First Guarantor by the Agent or any
Lender; or
(d) The First Guarantor shall fail to pay any
principal of or premium or interest on any Debt of the
First Guarantor that is outstanding in a principal
amount in excess of $50,000,000 in the aggregate 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 First Guarantor 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 First Guarantor 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 First Guarantor,
shall take any corporate action to authorize or to
consent to any of the actions set forth above in this
subsection (e); or
(f) the First Guarantor repudiates or threatens
to repudiate this First Guaranty Agreement or the
First Guaranty; or
(g) at any time it is or becomes unlawful for
the First Guarantor to perform or comply with any or
all of its obligations hereunder or under the First
Guaranty or any of the obligations of the First
Guarantor hereunder or under the First Guaranty are
not or cease to be legal, valid and binding, and on
demand from the Agent, payment of all amounts owing
under the Notes and the Credit Agreement shall not
have been paid in full;
then, and in any such case or in the event of a Payment
Event and at any time thereafter, the Agent may (and, if so
instructed by the Majority Lenders, shall) by written
notice to the Borrower, the First Guarantor and the
Guarantor:
(i) (a) declare the Notes issued under
the Credit Agreement to be immediately due and
payable (whereupon the same shall become so
payable together with accrued interest thereon
and any other sums then owed by the Borrower
thereunder) and (b) subject to the expiration of
any relevant grace period in the Credit
Agreement, declare the sums due under the First
Guaranty to be immediately due and payable as
provided in Section 5; and
(ii) take such other action and pursue
such other remedy, whether at law or at equity,
as may be necessary or advisable to enforce the
rights of the Lender hereunder.
ARTICLE V
Demand for Payment; Terms of Payment
5. If, pursuant to Section 4, the Agent
declares the Notes issued under the Credit Agreement to be
immediately due and payable and payment in full shall not
have been made within three Business Days of such
declaration, the Agent shall demand payment under the First
Guaranty and the same shall be paid within three Business
Days of such demand.
ARTICLE VI
Withholding Taxes
6. All payments by the First Guarantor under
the First Guaranty Agreement and the First Guaranty shall
be made free and clear of, and without deduction or
withholding for or on account of, any taxes, fees and
charges of any nature whatsoever ("Taxes"), unless such
deduction or withholding is required by law. If any such
deduction or withholding shall be required by law, then the
First Guarantor shall pay such additional amounts as may be
necessary in order that the net amount received by the
applicable Indemnified Person, after such deduction or
withholding, shall be equal to the full amount that such
Indemnified Person would have received had no such Taxes
been imposed.
Any amounts deducted or withheld by First
Guarantor for or on account of Taxes shall be paid over to
the government or taxing authority imposing such Taxes on a
timely basis, and the First Guarantor shall provide the
applicable Indemnified Person as soon as practicable with
such tax receipts or other official documentation with
respect to the payment of such Taxes as may be available.
ARTICLE VII
Miscellaneous
7. (a) 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 First Guarantor, at its address at 900
South Shackleford Road, Little Rock, Arkansas 72211,
Attention: Treasurer; if to the Bank, at its Lending Office
specified on the signature page hereto; if to any other
Lender, at its Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if
to the Agent, at its address at 299 Park Avenue, New York,
New York 10171, Attention: Loan Administration, with copy
to Union Bank of Switzerland, 1100 Louisiana, Suite 4500,
Houston, Texas 77002, Attention: Dan Boyle, Vice President;
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.
Notices and other communications given by the First
Guarantor to the Agent shall be deemed given to the
Lenders.
(b) No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right
hereunder, under this First Guaranty Agreement, the First
Guaranty or any other Facility Document 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 or equity.
(c) The First Guarantor 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 First
Guaranty Agreement and the First Guaranty, 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
First Guarantor with respect to the aforementioned expenses
shall describe such costs and expenses in reasonable
detail. The First Guarantor 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 First
Guaranty Agreement and the First Guaranty including,
without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this
Section 7(c).
(d) The First Guarantor hereby agrees to
indemnify and hold each 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 First Guaranty Agreement
and the First Guaranty, or the use by the Borrower of the
proceeds of any loan, 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 First Guarantor's obligations under this
Section 7(d) shall survive the repayment of all amounts
owing to the Lenders and the Agent under this First
Guaranty Agreement and the First Guaranty. If and to the
extent that the obligations of the First Guarantor under
this Section 7(d) are unenforceable for any reason, the
First Guarantor agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible
under applicable law.
(e) The First Guarantor undertakes to indemnify
the Agent and each Lender against any value added tax or
analogous tax, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default,
Payment Event or any Potential Event of Default hereunder.
(f) Upon the occurrence and during the
continuance of any Event of Default, 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 First Guarantor against any
and all of the obligations of the First Guarantor now or
hereafter existing under this First Guaranty Agreement and
the First Guaranty, whether or not such Lender shall have
made any demand under this First Guaranty Agreement and the
First Guaranty and although such obligations may be
unmatured. Each Lender agrees promptly to notify the First
Guarantor 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
7(f) are in addition to other rights and remedies
(including, without limitation, other rights of set-off)
which such Lender may have.
(g) No failure to exercise, nor any delay in
exercising, on the part of the Agent and the Lenders or
either of them, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or
other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
(h) This First Guaranty Agreement and the First
Guaranty shall become effective when it shall have been
executed by the First Guarantor and the Agent and
thereafter shall be binding upon and inure to the benefit
of the First Guarantor, the Agent and each Lender and their
respective successors and assigns, except that the First
Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Majority Lenders.
(i) All payments required to be made by the
First Guarantor hereunder shall be calculated without
reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on
account of any set-off or counterclaim.
(j) The First Guarantor authorizes to the
fullest extent permitted by applicable law any Lender to
apply any credit balance to which the First Guarantor is
entitled on any account of the First Guarantor with that
Lender in satisfaction of any sum due and payable from the
First Guarantor to such Lender hereunder but unpaid; for
this purpose, the Lender is authorized to purchase with the
moneys standing to the credit of any such account such
other currencies as may be necessary to effect such
application. No Lender shall be obliged to exercise any
right given to it by this Section 7(j). In the event of the
Lender exercising any right given to it under this Section
7(j), such Lender shall immediately notify the Agent.
(k) If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby
(l) Any provision of this Agreement and the
First Guaranty may be amended only if the First Guarantor
and the Majority Lenders so agree in writing. Any Event of
Default or breach of any provision of this Agreement and
the First Guaranty may be waived before or after it occurs
only if the Majority Lenders so agree in writing but an
amendment or waiver which changes or relates to: (a) the
amount of the indebtedness of the First Guarantor hereunder
or under the First Guaranty, (b) the date on which any sum
becomes payable by the First Guarantor hereunder or under
the First Guaranty, or (c) this Section 7(l), shall require
the agreement of each Lender.
(m) THIS FIRST GUARANTY AGREEMENT AND THE FIRST
GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS
AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Any legal action or proceeding with respect to
this First Guaranty Agreement or the First Guaranty may be
brought in the courts of the State of New York or of the
United States of America for the Southern District of New
York, and, by execution and delivery of this First Guaranty
Agreement, the First Guarantor hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of the
aforesaid courts. The First Guarantor hereby irrevocably
designates, appoints and empowers CT Corporation System
with offices on the date hereof at 1633 Broadway, New York,
New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and in respect of
its property, service of any and all legal process, sum
mons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee,
appointee and agent shall cease to be available to act as
such, the First Guarantor agrees to designate a new
designee, appointee and agent in New York City on the terms
and for the purposes of this provision satisfactory to the
Agent which approval shall not be unreasonably withheld.
The First Guarantor hereby further irrevocably waives any
claim that any such courts lack jurisdiction over the First
Guarantor, and agrees not to plead or claim, in any legal
action or proceeding with respect to this First Guaranty
Agreement or the First Guaranty brought in any of the afore
said courts, that any such court lacks jurisdiction over
the First Guarantor. The First Guarantor further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the First Guarantor
at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing.
The First Guarantor hereby irrevocably waives any objection
to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or pro
ceeding commenced hereunder that service of process was in
any way invalid or ineffective. Nothing herein shall
affect the right of any of the Creditors to serve process
in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the First
Guarantor in any other jurisdiction.
The First Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this First Guaranty
Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead
or claim in any such court that such action or proceeding
brought in any such court has been brought in an
inconvenient forum.
(o) THE FIRST GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS FIRST
GUARANTY AGREEMENT, THE OTHER FACILITY DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(p) This First Guaranty Agreement and the First
Guaranty 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.
AS WITNESS the hands of the duly authorized
representatives of the parties hereto the day and year
first before written.
ENTERGY ENTERPRISES, INC.
By
Title:
Name:
UNION BANK OF SWITZERLAND as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
EXECUTION COPY
FIRST AMENDMENT
Dated as of March 12, 1996, to the
FIRST GUARANTY AGREEMENT,
Dated as of November 27, 1995
Between
ENTERGY ENTERPRISES, INC.
as First Guarantor,
and
UNION BANK OF SWITZERLAND
as Agent
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc (the "Borrower"), Union Bank
of Switzerland, Houston Agency (the "Bank") and Union Bank
of Switzerland, as Agent (the "Agent"), entered into a
Credit Agreement, dated as of November 27, 1995 (the
"Credit Agreement"), providing for the making of the Loan
to the Borrower;
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation which is a wholly-owned Subsidiary of the
Guarantor, has executed and delivered its First Guaranty
Agreement, dated as of November 27, 1995, in favor of the
Agent with respect to the obligations of the Borrower under
the Credit Agreement; and
WHEREAS, the Lenders desire to amend the First
Guaranty Agreement in accordance with Section 7(l) of the
First Guaranty Agreement.
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to the First Guarantor and the
terms, covenants and conditions set forth therein and
herein, the parties hereto agree as follows:
1. Defined terms used herein shall have the meanings
given to them in the First Guaranty Agreement, except as
otherwise defined in the Credit Agreement or herein.
2. Subsection 7(d) of the First Guaranty Agreement is
amended by deleting the word "loan" in line 9 and
substituting therefor the word "Loan".
3. Subsection 7(i) of the First Guaranty Agreement,
shall be amended by deleting said subsection in its
entirety and substituting therefor the following:
(i) All payments required to be made by
the First Guarantor hereunder shall be made in
United States Dollars and shall be calculated
without reference to any set-off or counterclaim
and shall be made free and clear of and without
any deduction for or on account of any set-off or
counterclaim.
4. Except as amended herein, the First Guaranty
Agreement shall be unchanged and the First Guaranty
Agreement shall henceforth consist of the First Guaranty
Agreement as amended by this First Amendment.
5. This First Amendment 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>
WITNESS the hands of the duly authorized
representatives of the parties hereto as of the day and
year first above written.
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
ENTERGY ENTERPRISES, INC.
By
Title:
Name:
Exhibit C-1(j)
GUARANTY
GUARANTY, dated as of November 27, 1995 (as
amended, modified or supplemented from time to time, this
"Guaranty"), made by the undersigned (the "Guarantor").
Except as otherwise defined in the Guaranty Agreement (as
defined below) or herein, terms used herein and defined in
the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of November 27, 1995
providing for the making of Loans to the Borrower (as used
herein, the term "Credit Agreement" means the Credit
Agreement described in this paragraph, as the same may be
amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring of
all or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, the Guarantor and the Agent have entered
into a Guaranty Agreement dated November 27, 1995 (the
"Guaranty Agreement");
WHEREAS, it is a condition to the making of Loans
to the Borrower that the Guarantor shall have executed and
delivered the Guaranty Agreement and this Guaranty; and
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation ("EEI"), has issued its guaranty dated the date
hereof in favor of the Agent (as amended from time to time,
the "First Guaranty") with respect to amounts payable by
the Borrower pursuant to the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the Guarantor, the receipt
and sufficiency of which are hereby acknowledged, the Guar
antor hereby covenants and agrees with each Creditor as
follows:
1. The Guarantor irrevocably and unconditionally
guarantees to the Creditors the full and prompt payment
when due (whether at the stated maturity, by acceleration
or otherwise) of all amounts payable by EEI under the First
Guaranty and under the First Guaranty Agreement (all such
amounts being herein collectively called the "Guaranteed
Obligations"). The Guarantor understands, agrees and
confirms that the Creditors may enforce this Guaranty up to
the full amount of the Guaranteed Obligations against the
Guarantor without proceeding against the Borrower, against
any security for the Guaranteed Obligations, or except as
and to the extent provided in Section 6 of the Guaranty
Agreement, under any other guaranty covering all or a
portion of the Guaranteed Obligations. All payments by the
Guarantor under this Guaranty shall be made as provided in
the Guaranty Agreement or otherwise on the same basis as
payments by EEI under the First Guaranty.
2. Subject to the provisions of Section 6 of the
Guaranty Agreement, the liability of the Guarantor
hereunder is exclusive and independent of any security for
or other guaranty of the Guaranteed Obligations or
obligations of the Borrower under the Credit Agreement, and
the liability of the Guarantor hereunder shall not be
affected or impaired by (a) any direction as to application
of payment by EEI, the Borrower or by any other party, (b)
any other continuing or other guaranty, undertaking or max
imum liability of a guarantor or of any other party as to
the Guaranteed Obligations or obligations of the Borrower
under the Credit Agreement, (c) any payment on or in
reduction of any such other guaranty or undertaking or (d)
any payment made to any Creditor on the Guaranteed
Obligations which any Creditor repays to the Borrower or
EEI pursuant to court order in any bankruptcy, reorgan
ization, arrangement, moratorium or other debtor relief
proceeding, and the Guarantor waives any right to the
deferral or modification of its obligations hereunder by
reason of any such proceeding.
3. Subject to the provisions of Section 6 of the
Guaranty Agreement, the obligations of the Guarantor
hereunder are independent of the obligations of any other
guarantor or the Borrower, and a separate action or actions
may be brought and prosecuted against the Guarantor whether
or not action is brought against any other guarantor or the
Borrower and whether or not any other guarantor of the
Borrower or the Borrower be joined in any such action or
actions. The Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations
as to the Guarantor.
4. The Guarantor hereby waives (to the fullest
extent permitted by applicable law) notice of acceptance of
this Guaranty and notice of any liability to which it may
apply, and waives promptness, diligence, presentment,
demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other
action by the Agent or any other Creditor against, and any
other notice to, any party liable thereon, except as and to
the extent provided in Section 6 of the Guaranty Agreement.
5. Any Creditor may at any time and from time to
time without the consent of, or notice to, the Guarantor,
without incurring responsibility to the Guarantor, without
impairing or releasing the obligations of the Guarantor
hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of,
renew, accelerate or alter, any of the Guaranteed
Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any
offset thereagainst;
(c) exercise or refrain from exercising any
rights against the Borrower, the First Guarantor and
the Guarantor (except as provided in Section 6 of the
Guaranty Agreement) or others or otherwise act or
refrain from acting;
(d) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower or of EEI to
creditors of EEI;
(e) apply any sums by whomsoever paid or howso
ever realized to any liability or liabilities of the
Borrower to the Creditors regardless of what liabil
ities of the Borrower remain unpaid;
(f) consent to, or waive any breach of, any act,
omission or default under the Facility Documents or
any of the instruments or agreements referred to there
in, or otherwise amend, modify or supplement the
Facility Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to
in this Guaranty which may deprive the Guarantor of
its right to subrogation against the Borrower and/or
EEI to recover full indemnity for any payments made
pursuant to this Guaranty.
6. No invalidity, irregularity or unenforce
ability of all or any part of the Guaranteed Obligations or
of the obligations of the Borrower under the Credit
Agreement or of any security therefor shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall
be primary, absolute and unconditional notwithstanding the
occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full
of the Guaranteed Obligations and the obligations of the
Borrower under the Credit Agreement.
7. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or
remedies which any Creditor would otherwise have. No
notice to or demand on the Guarantor in any case shall
entitle the Guarantor to any other further notice or demand
in similar or other circumstances or constitute a waiver of
the rights of any Creditor to any other or further action
in any circumstances without notice or demand. It is not
necessary for any Creditor to inquire into the capacity or
powers of the Guarantor or the officers, directors,
partners or agents acting or purporting to act on its be
half, and any indebtedness made or created in reliance upon
the professed exercise of such powers shall be guaranteed
hereunder.
8. (a) Except as and to the extent provided in
Section 6 of the Guaranty Agreement, the Guarantor waives
any right (except as shall be required by applicable
statute or law and cannot be waived) to require the
Creditors to: (i) proceed against the Borrower, any other
guarantor of the Borrower or any other party; (ii) proceed
against or exhaust any security held from the Borrower, any
other guarantor of the Borrower or any other party; or
(iii) pursue any other remedy in the Creditors' power
whatsoever. The Guarantor waives (to the fullest extent
permitted by applicable law) any defense based on or
arising out of any defense of the Borrower, any other
guarantor of the Borrower or any other party other than
payment in full of the Guaranteed Obligations and the
obligations of the Borrower under the Notes and the Credit
Agreement, including, without limitation, any defense based
on or arising out of the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower
or EEI other than payment in full of the Guaranteed
Obligations and the obligations of the Borrower under the
Notes and the Credit Agreement. The Creditors may, at
their election, foreclose on any security held by the Agent
or the other Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right
or remedy the Creditors may have against the Guarantor or
any other party, or any security, without affecting or
impairing in any way the liability of the Guarantor
hereunder except to the extent the Guaranteed Obligations
and the obligations of the Borrower under the Notes and the
Credit Agreement have been paid in full. The Guarantor
waives any defense arising out of any such election by the
Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or
other right or remedy of the Guarantor against the Borrower
or any other party or any security;
(b) Except as and to the extent provided in
Section 6 of the Guaranty Agreement, the Guarantor waives
(to the fullest extent permitted by applicable law) all
presentments, demands for performance, protests and
notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional
indebtedness. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's and
EEI's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of
the risks which the Guarantor assumes and incurs hereunder,
and agrees that the Creditors shall have no duty to advise
the Guarantor of information known to them regarding such
circumstances or risks.
9. The Guarantor agrees to pay all reasonable
out-of-pocket costs and expenses of each Creditor in
connection with the enforcement of this Guaranty and any
amendment, waiver or consent relating hereto (including,
without limitation, the reasonable fees and disbursements
of counsel (including in-house counsel) employed by any of
the Creditors).
10. This Guaranty shall be binding upon the
Guarantor and its successors and assigns and shall inure to
the benefit of the Creditors and their successors and
assigns.
11. This Guaranty or any provision hereof may be
amended only if the Guarantor and the Majority Lenders so
agree in writing. An amendment or waiver which changes or
relates to: (a) the amount of indebtedness of the Guarantor
hereunder or under the Guaranty Agreement, (b) the date on
which any sum becomes payable by the Guarantor hereunder or
under the Guaranty Agreement, or (c) this Section 11, shall
in each case require the agreement of each Lender.
12. In addition to any rights now or hereafter
granted under applicable law (including, without
limitation, Section 151 of the New York Debtor and Creditor
Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of
Default, such term to mean and include any "Event of
Default" as defined in the Credit Agreement and in the
Guaranty Agreement, each Creditor is hereby authorized at
any time or from time to time, without notice to the
Guarantor or to any other Person, any such notice being
expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Creditor to
or for the credit or the account of the Guarantor, against
and on account of the obligations and liabilities of the
Guarantor to such Creditor under this Guaranty,
irrespective of whether or not such Creditor shall have
made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
13. All notices, requests, demands or other com
munications pursuant hereto shall be deemed to have been
duly given or made when delivered to the Person to which
such notice, request, demand or other communication is
required or permitted to be given or made under this Guar
anty, addressed to such party at (i) in the case of any
Creditor, as provided in the Credit Agreement and (ii) in
the case of the Guarantor, at its address set forth
opposite its signature below; or in any case at such other
address as any of the Persons listed above may hereafter
notify the others in writing.
14. If claim is ever made upon any Creditor for
repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with
any such claimant (including the Guarantor), then and in
such event the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding
upon the Guarantor, notwithstanding any revocation hereof
or the cancellation of any Note or other instrument evidenc
ing any liability of the Borrower, and the Guarantor shall
be and remain liable to the aforesaid payees hereunder for
the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such
payee.
15. Any acknowledgment or new promise, whether
by payment of principal or interest or otherwise and
whether by the Borrower or other Persons liable in respect
of the Guaranteed Obligations (including the Guarantor),
with respect to any of the Guaranteed Obligations shall, if
the statute of limitations in favor of the Guarantor
against any Creditor shall have commenced to run, toll the
running of such statute of limitations, and if the period
of such statute of limitations shall have expired, prevent
the operation of such statute of limitations.
16. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGA
TIONS OF THE CREDITORS AND OF THE UNDERSIGNED HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Guaranty or any other
Facility Document to which the Guarantor is a party may be
brought in the courts of the State of New York or of the
United States of America for the Southern District of New
York, and, by execution and delivery of this Guaranty, the
Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts. The
Guarantor hereby irrevocably designates, appoints and
empowers CT Corporation System (with offices on the date
hereof at 1633 Broadway, New York, New York 10019) as its
designee, appointee and agent to receive and accept for and
on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall
cease to be available to act as such, the Guarantor agrees
to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this
provision satisfactory to the Agent which approval shall
not be unreasonably withheld. The Guarantor hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over the Guarantor, and agrees not to plead or
claim, in any legal action or proceeding with respect to
this Guaranty or any other Facility Document to which the
Guarantor is a party brought in any of the aforesaid
courts, that any such court lacks jurisdiction over the
Guarantor. The Guarantor further irrevocably consents to
the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage
prepaid, to the Guarantor at its address set forth opposite
its signature below, such service to become effective 30
days after such mailing. The Guarantor hereby irrevocably
waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any
action or proceeding commenced hereunder or under any other
Facility Document to which the Guarantor is a party that
service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the
Creditors to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed
against the Guarantor in any other jurisdiction.
(b) The Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or any
other Facility Document brought in the courts referred to
in clause (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that
such action or proceeding brought in any such court has
been brought in an inconvenient forum.
17. This Guaranty may be executed in any number
of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall
together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be
lodged with the Guarantor and the Agent.
18. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUN
TERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE
OTHER FACILITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
19. All payments made by the Guarantor hereunder
will be made without setoff, counterclaim or other defense.
20. (a) It is the desire and intent of the
Guarantor and the Creditors that this Guaranty shall be
enforced against the Guarantor to the fullest extent per
missible under the laws and public policies applied in each
jurisdiction in which enforcement is sought.
(b) If, however, and to the extent, that the
obligations of the Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable
state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations
of the Guarantor shall be deemed to be reduced and the
affected Guarantor shall pay the maximum amount of the Guar
anteed Obligations which would be permissible under applic
able law.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be executed and delivered as of the date first
above written.
639 Loyola Avenue ENTERGY CORPORATION
New Orleans, LA 70113
By
Title:
Name:
Accepted and Agreed to:
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
FIRST AMENDMENT
Dated as of March 12, 1996, to the
GUARANTY ,
Dated as of November 27, 1995
Between
ENTERGY CORPORATION
as Guarantor,
and
UNION BANK OF SWITZERLAND
as Agent
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc (the "Borrower"), Union Bank
of Switzerland, Houston Agency (the "Bank") and Union Bank
of Switzerland, as Agent (the "Agent"), entered into a
Credit Agreement, dated as of November 27, 1995 (the
"Credit Agreement"), providing for the making of the Loan
to the Borrower;
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation which is a wholly-owned Subsidiary of the
Guarantor, has executed and delivered its First Guaranty
Agreement, dated as of November 27, 1995, in favor of the
Agent with respect to the obligations of the Borrower under
the Credit Agreement;
WHEREAS, Entergy Corporation, a Delaware corporation
(the "Guarantor") has executed and delivered its Guaranty
Agreement, dated November 27, 1995, in favor of the Agent
with respect to all amounts payable by the First Guarantor
under the First Guaranty Agreement; and
WHEREAS, the Bank and the Lenders desire to amend the
Guaranty in accordance with Section 11 of the Guaranty.
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to the Guarantor and the terms,
covenants and conditions set forth therein and herein, the
parties hereto agree as follows:
1. Defined terms used herein shall have the meanings
given to them in the Guaranty Agreement, except as
otherwise defined in the Credit Agreement or herein.
2. The Guaranty shall be amended so that on page one
of the Second Guaranty the words "ANNEX I" which appear in
the upper right hand corner shall be deleted.
3. Except as amended herein, the Guaranty shall be
unchanged and the Guaranty shall henceforth consist of the
Guaranty as amended by this First Amendment.
4. This First Amendment 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.
WITNESS the hands of the duly authorized
representatives of the parties hereto as of the day and
year first above written.
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
ENTERGY CORPORATION
By: /s/William J. Regan, Jr.
Title: Vice President and Treasurer
Name: William J. Regan, Jr.
<PAGE>
GUARANTY AGREEMENT
GUARANTY AGREEMENT, dated as of November 27, 1995
(as amended, modified or supplemented from time to time,
this "Guaranty Agreement" or "Agreement"), made between
Entergy Corporation (the "Guarantor") and Union Bank of
Switzerland as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc. (the "Borrower"), Union
Bank of Switzerland, as Agent (the "Agent") and Union Bank
of Switzerland, Houston Agency (the "Bank") have entered
into a Credit Agreement, dated as of November 27, 1995
providing for the making of the Loan to the Borrower (as
used herein, the term "Credit Agreement" means the Credit
Agreement described above in this paragraph, as the same
may be amended, modified, extended, renewed, replaced or
supplemented from time to time, and including any agreement
extending the maturity of, refinancing or restructuring all
or any portion of the Loans under such agreement or any
successor agreement);
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation ("EEI") which is a wholly-owned Subsidiary of
the Guarantor, has issued its guaranty dated the date
hereof in favor of the Agent (as amended from time to time,
the "First Guaranty") with respect to the obligations of
the Borrower under the Credit Agreement;
WHEREAS, the Borrower is a wholly owned, indirect
Subsidiary of the Guarantor;
WHEREAS, it is a condition to the making of Loans
to the Borrower that the Guarantor shall have executed and
delivered this Guaranty Agreement and a Guaranty in the
form of Annex I attached hereto; and
WHEREAS, the Guarantor will obtain direct and
indirect economic, financial and other benefits from the
Loan to be made to the Borrower under the Credit Agreement
and hence desires to execute this Guaranty Agreement and
the Guaranty in order to satisfy the conditions described
in the preceding paragraph and to induce the Bank to make
the Loan to the Borrower;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the Guarantor, the receipt
and sufficiency of which are hereby acknowledged, the Guar
antor hereby makes the following representations and warran
ties to the Creditors and hereby covenants and agrees with
each Creditor as follows:
ARTICLE I
Definitions
I. As used in this Guaranty 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):
"Creditors" shall mean all Lenders party from
time to time to the Credit Agreement and the Agent.
"Event of Default" shall have the meaning set
forth in Section 5.
"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.
"Guaranty" shall mean the Guaranty to be executed
and delivered as herein provided.
"Indemnified Person" shall mean the Lenders, the
Agent and their respective Affiliates and their respective
officers, directors, employees and professional advisors.
"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.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which the
Guarantor or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"NOPSI" means New Orleans Public Service Inc., a
Louisiana corporation.
"PBGC" means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its
functions under ERISA.
"Payment Event" shall mean an Event of Default
(as defined in the Credit Agreement) under the Credit
Agreement (other than the events specified in Section
6.01(e) thereof) and the First Guaranty Agreement.
"Person" shall be construed as a reference to any
person, firm, company, corporation, government, state or
agency of a state or any association or partnership
(whether or not having separate legal personality) or two
or more of the foregoing.
"Potential Event of Default" means any event
which may become (with the passage of time, the giving of
notice, the making of any determination hereunder or any
combination thereof) an Event of Default.
"SEC Order" means Order (File No. 70-8105) of the
Securities and Exchange Commission (Release No. 35-26322)
under the Public Utility Holding Company Act of 1935.
Except as otherwise defined herein, terms used
herein and defined in the Credit Agreement shall be used
herein as therein defined.
ARTICLE II
Representations and Warranties
2. The Guarantor represents and warrants that:
(a) the Guarantor 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, except where failure
to so qualify would not materially adversely affect
its condition (financial or otherwise), operations,
business, properties, or prospects;
(b) neither the execution, delivery or perform
ance by the Guarantor of this Guaranty Agreement and
the Guaranty nor compliance by it with the terms and
provisions hereof or thereof (i) will contravene any
applicable provision of any law, statute, rule or
regulation, or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or
result in the creation or imposition of (or the obliga
tion to create or impose) any Lien upon any of the
property or assets of the Guarantor pursuant to the
terms of any indenture, mortgage, deed of trust, loan
agreement, credit agreement or any other agreement or
other instrument to which the Guarantor is a party or
by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate
any provision of the certificate of incorporation or
by-laws (or other governing instrument) of the
Guarantor or any of its Subsidiaries;
(c) the Guarantor has the corporate power and
authority to execute, deliver and carry out the terms
and provisions of this Guaranty Agreement and the
Guaranty and has taken all necessary corporate action
to authorize the execution, delivery and performance
by it of each such document. The Guarantor has duly
executed and delivered this Guaranty Agreement and the
Guaranty and each such document constitutes the legal,
valid and binding obligation of the Guarantor enforce
able in accordance with its terms, except to the
extent that the enforceability hereof or thereof may
be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights gener
ally and by equitable principles (regardless of
whether enforcement is sought in equity or at law);
(d) no order, consent, approval, license, author
ization or validation of, or filing, recording or
registration with, or exemption by, any governmental
or public body or authority, or any subdivision
thereof, is required to authorize or make lawful the
execution, delivery and performance of this Guaranty
Agreement and the Guaranty, or is required in order to
make the Guaranty Agreement and the Guaranty the
legal, valid and binding obligations of the Guarantor,
except for the SEC Order which is in full force and
effect;
(e) the consolidated financial statements of the
Guarantor and its Subsidiaries as of December 31, 1994
and for the year ended on such date, as set forth in
the Guarantor'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 L.L.P.,
and the consolidated financial statements of the
Guarantor and its Subsidiaries as of September 30,
1995, and for the nine-month period ended on such date
set forth in the Guarantor'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 the Agent, fairly present (subject, in
the case of such statements dated September 30, 1995,
to year-end adjustments) the consolidated financial
condition of the Guarantor and its Subsidiaries as at
such dates and the consolidated results of the
operations of the Guarantor and its Subsidiaries for
the periods ended on such dates, in accordance with
generally accepted accounting principles consistently
applied. Except as disclosed in the Guarantor's
Quarterly Report on Form 10-Q for the fiscal period
ended September 30, 1995, since December 31, 1994,
there has been no material adverse change in the
financial condition or operations of the Guarantor;
(f) except as disclosed in the Guarantor's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, and/or the Guarantor's Quarterly
Report on Form 10-Q for the period ended September 30,
1995, there is no pending or threatened action or
proceeding affecting the Guarantor 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
Guarantor or on its ability to perform its obligations
under this Guaranty Agreement or the Guaranty, or that
purports to affect the legality, validity, binding
effect or enforceability of this Guaranty Agreement or
the Guaranty. 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) it has not taken any corporate action nor
have any other steps been taken or legal proceedings
been started or (to the best of the Guarantor's
knowledge and belief) threatened against the Guarantor
for its winding-up, dissolution, administration or re-
organization or for the appointment of a receiver,
administrator, trustee or similar officer of it or of
any or all of its assets or revenues;
(h) no event has occurred and is continuing that
constitutes a Payment Event or an Event of Default or
that would constitute an Event of Default or a Payment
Event but for the requirement that notice be given or
time elapse or both;
(i) the Guarantor is not engaged in the business
of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regula
tion 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 Guarantor and its Subsidiaries
subject to the restrictions of Sections 4(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);
(j) the Guarantor 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 Guarantor is a "Holding Company" as that
term is defined in, and is registered under, the
Public Utility Holding Company Act of 1935;
(k) 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 Guarantor and
its Subsidiaries, taken as a whole;
(l) 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 Bank, 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; and
(m) the Guarantor has not incurred, and does not
reasonably expect to incur, any withdrawal liability
under ERISA to any Multiemployer Plan.
ARTICLE III
Covenants of the Guarantor
3. The Guarantor shall, unless the Majority
Lenders consent in writing, so long as any Note shall
remain outstanding or there shall remain any amounts due
under the Credit Agreement or the First Guaranty or any
amount payable by the Guarantor hereunder shall remain
unpaid:
(a)(_) keep proper books of record and
account, all in accordance with generally accepted
accounting principles;
(b) except as otherwise permitted hereunder by
Section 4(c), preserve and keep in full force and
effect its existence and preserve and keep in full
force and effect its licenses, rights and franchises
to the extent necessary to carry on its business;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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
Guarantor, (A) consolidated balance sheets of the
Guarantor and its Subsidiaries as of the end of
such quarter and (B) consolidated statements of
income and retained earnings of the Guarantor 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 Guarantor 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 Guarantor, a copy of the
annual report for such year for the Guarantor and
its Subsidiaries, containing consolidated
financial statements for such year certified
without limitation as to scope and without any
qualification other than such qualification as
shall not indicate an inability on the part of
the Guarantor to perform its obligations
hereunder or under the Guaranty by Coopers &
Lybrand L.L.P.(or such other nationally
recognized public accounting firm as the Agent
may approve) and certified by a duly authorized
officer of the Guarantor 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
Guarantor and within 120 days after the end of
the fiscal year of the Guarantor, a certificate
of the duly authorized officer of the Guarantor,
stating that no Payment Event or Event of Default
hereunder has occurred and is continuing, or if a
Payment Event or Event of Default hereunder has
occurred and is continuing, a statement setting
forth details of such Payment Event or Event of
Default, as the case may be, and the action that
the Guarantor, the First Guarantor or the
Borrower, as the case may be, has taken and
proposes to take with respect thereto;
(iv) as soon as possible and in any
event within five days after the Guarantor has
knowledge of the occurrence of each Payment
Event, Event of Default and each event that, with
the giving of notice or lapse of time or both,
would constitute a Payment Event or an Event of
Default, continuing on the date of such
statement, a statement of the duly authorized
officer of the Guarantor setting forth details of
such Payment Event, Event of Default or event, as
the case may be, and the actions that the Guaran
tor, the First Guarantor or the Borrower, as the
case may be, has taken and proposes to take with
respect thereto;
(v) as soon as possible and in any
event within five days after the Guarantor
receives notice of the commencement of any
litigation against, or any arbitration,
administrative, governmental or regulatory
proceeding involving, the Guarantor or any of its
Subsidiaries, that, if adversely determined,
could reasonably be expected to have a material
adverse effect on the condition (financial or
otherwise), operations, business, properties or
prospects of the Guarantor, notice of such litiga
tion describing in reasonable detail the facts
and circumstances concerning such litigation and
the Guarantor's or such Subsidiary's proposed
actions in connection therewith;
(vi) promptly after the sending or
filing thereof, copies of all reports that the
Guarantor sends to any of its securities holders,
and copies of all reports and registration
statements which the Guarantor files with the SEC
or any national securities exchange pursuant to
the Securities Act of 1933, as amended or the
Securities Exchange Act of 1934, as amended;
(vii) as soon as possible and in any
event (A) within 30 days after the Guarantor
knows or has reason to know that any ERISA Termi
nation 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 Guarantor 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 Guarantor describing such ERISA
Termination Event and the action, if any, that
the Guarantor proposes to take with respect
thereto;
(viii) promptly and in any event
within two Business Days after receipt thereof by
the Guarantor from the PBGC, copies of each
notice received by the Guarantor 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
Guarantor from a Multiemployer Plan sponsor, a
copy of each notice received by the Guarantor
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 Guarantor or any of its
Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
ARTICLE IV
Negative Covenants of the Guarantor
4. The Guarantor shall not without the prior
written consent of the Majority Lenders (such prior written
consent not to be unreasonably withheld or delayed), so
long as any Note shall remain outstanding or there shall
remain any amounts due under the Credit Agreement or the
First Guaranty or any amount payable by the Guarantor
hereunder shall remain unpaid:
(a) 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 Guarantor 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 Guarantor; (v)
purchase money mortgages or other liens or purchase
money security interests upon or in any property
acquired or held by the Guarantor 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 Guarantor to
the Lenders hereunder are simultaneously and ratably
secured by such Lien pursuant to documentation
satisfactory to the Lenders;
(b) create, incur, assume or suffer to exist,
any Debt of the Guarantor other than:
(i) Debt under this Guaranty;
(ii) Debt under the Credit Agreement,
dated as of October 10, 1995, between Entergy
Corporation as borrower and Citibank, N.A. as
agent and under the Notes issued thereunder;
(_)(iii) Debt secured by Liens
permitted under Section 4(a);
(_)(iv) Debt as lessee under leases
which shall have been, or should be, in
accordance with generally accepted accounting
principles, recorded as capital leases;
(v) Debt incurred in the form of
endorsements in the normal course of business;
(vi) Guaranty Obligations (excluding
Guaranty Obligations described in clauses (i) and
(vii) hereof) and other Debt not to exceed
$735,000,000 (plus the principal amounts of any
partial payments of the Notes pursuant to the
Credit Agreement) in the aggregate at any one
time; and
(vii) Guaranty Obligations not
otherwise permitted hereunder, but disclosed on
Schedule I hereto.
(c) merge with or into or consolidate with or
into any other person, except that the Guarantor may
merge with any other Person, provided that,
immediately after giving effect to any such merger,
(i) the Guarantor 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 Guarantor'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
Payment 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 Guarantor 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; and
(d)(_) 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 Guarantor or a
Significant Subsidiary.
ARTICLE V
Events of Default
5. An Event of Default hereunder shall occur if:
(a) the Guarantor fails to pay any sum due from
it hereunder or under the Guaranty at the time, in the
currency and in the manner specified herein or
therein; or
(b) any representation or statement made by the
Guarantor in this Agreement or in any notice or other
document, certificate or statement delivered by it
pursuant hereto or in connection herewith is or proves
to have been incorrect or misleading in any material
respect when made; or
(c) The Guarantor shall fail to perform or
observe (i) any term, covenant or agreement contained
in Sections 3 and 4 or (ii) any other term, covenant
or agreement contained in this Agreement on its part
to be performed or observed and the failure to perform
or observe any such term, covenant or agreement in
clauses (i) or (ii) shall remain unremedied for 30
days after written notice thereof shall have been
given to the Guarantor by the Agent or any Lender; or
(d) The Guarantor shall fail to pay any
principal of or premium or interest on any Debt of the
Guarantor that is outstanding in a principal amount in
excess of $50,000,000 in the aggregate 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 Guarantor, 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
Guarantor, 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, 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
Guarantor, 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 Guarantor 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 Guarantor or any
ERISA Affiliate of the Guarantor 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
Guarantor or any ERISA Affiliate of the Guarantor is,
shall have been or will be terminated or the subject
of termination proceedings under ERISA, or (iii) the
Guarantor or any ERISA Affiliate of the Guarantor 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
Guarantor or any ERISA Affiliate of the Guarantor
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).
(h) the Guarantor repudiates or threatens to
repudiate this Guaranty Agreement or the Guaranty; or
(i) at any time it is or becomes unlawful for
the Guarantor to perform or comply with any or all of
its obligations hereunder or under the Guaranty or any
of the obligations of the Guarantor hereunder or under
the Guaranty are not or cease to be legal, valid and
binding and, on demand from the Agent, payment of all
amounts owing under the Notes, the Credit Agreement,
the Guaranty and this Agreement shall not have been
made in full;
then, and in any such case or in the event of a Payment
Event and at any time thereafter, the Agent may (and, if so
instructed by the Majority Lenders, shall) by written
notice to the Borrower, the First Guarantor and the
Guarantor:
(i) (a) declare the Notes issued under
the Credit Agreement to be immediately due and
payable (whereupon the same shall become so
payable together with accrued interest thereon
and any other sums then owed by the Borrower
thereunder), (b) subject to the expiration of any
relevant grace period in the Credit Agreement,
declare the sums due under the First Guaranty to
be due and payable and (c) if such sums are not
paid when due, declare the Guaranty to be due and
payable; and
(ii) take such other action and pursue
such other remedy, whether at law or at equity,
as may be necessary or advisable to enforce the
rights of the Lender hereunder.
ARTICLE VI
Demand for Payment; Terms of Payment
6. If, pursuant to Section 5, the Agent
declares the Notes issued under the Credit Agreement to be
immediately due and payable and payment in full shall not
have been made within three Business Days of such
declaration, and the Agent shall not have been paid in full
under the First Guaranty in accordance with the terms
thereof, then the Agent shall demand payment under the
Guaranty and the same shall be paid within ten Business
Days of such demand.
ARTICLE VII
Withholding Taxes
7. All payments by the Guarantor under the
Guaranty Agreement and the Guaranty shall be made free and
clear of, and without deduction or withholding for or on
account of, any taxes, fees and charges of any nature
whatsoever ("Taxes"), unless such deduction or withholding
is required by law. If any such deduction or withholding
shall be required by law, then the Guarantor shall pay such
additional amounts as may be necessary in order that the
net amount received by the applicable Indemnified Person,
after such deduction or withholding, shall be equal to the
full amount that such Indemnified Person would have
received had no such Taxes been imposed.
Any amounts deducted or withheld by Guarantor for
or on account of Taxes shall be paid over to the government
or taxing authority imposing such Taxes on a timely basis,
and the Guarantor shall provide the applicable Indemnified
Person as soon as practicable with such tax receipts or
other official documentation with respect to the payment of
such Taxes as may be available.
ARTICLE VIII
Miscellaneous
8. (a) 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 Guarantor, at its address at 639
Loyola Avenue, New Orleans, LA 70113, Attention: Treasurer;
if to the Bank, at its Lending Office specified on the
signature page hereto; if to any other Lender, at its
Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent,
at its address at 299 Park Avenue, New York, New York
10171, Attention: Loan Administration, with a copy to Union
Bank of Switzerland, 1100 Louisiana, Suite 4500, Houston,
Texas 77002, Attention: Dan Boyle, Vice President; 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. Notices and
other communications given by the Guarantor to the Agent
shall be deemed given to the Lenders.
(b) No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right
hereunder, under this Guaranty Agreement, the Guaranty or
any other Facility Document 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 or in equity.
(c) The Guarantor 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 Guaranty
Agreement and the Guaranty, 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 Guarantor with
respect to the aforementioned expenses shall describe such
costs and expenses in reasonable detail. The Guarantor
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 Guaranty Agreement and
the Guaranty including, without limitation, reasonable
counsel fees and expenses in connection with the
enforcement of rights under this Section 8(c).
(d) The Guarantor hereby agrees to indemnify and
hold each 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 Guaranty Agreement and the Guaranty, or the use by the
Borrower of the proceeds of any loan, 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 Guarantor's obligations under this Section 8(d)
shall survive the repayment of all amounts owing to the
Lenders and the Agent under this Guaranty Agreement and the
Guaranty. If and to the extent that the obligations of the
Guarantor under this Section 8(d) are unenforceable for any
reason, the Guarantor agrees to make the maximum
contribution to the payment and satisfaction thereof which
is permissible under applicable law.
(e) The Guarantor undertakes to indemnify the
Agent and each Lender against any value added tax or
analogous tax, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default,
Payment Event or any Potential Event of Default hereunder.
(f) Upon the occurrence and during the
continuance of any Event of Default, 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 Guarantor against any and all
of the obligations of the Guarantor now or hereafter
existing under this Guaranty Agreement and the Guaranty,
whether or not such Lender shall have made any demand under
this Guaranty Agreement and the Guaranty and although such
obligations may be unmatured. Each Lender agrees promptly
to notify the Guarantor 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(f) are in addition to other rights and
remedies (including, without limitation, other rights of
set-off) which such Lender may have.
(g) No failure to exercise, nor any delay in
exercising, on the part of the Agent and the Lenders or
either of them, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or
other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
(h) This Guaranty Agreement and the Guaranty
shall become effective when it shall have been executed by
the Guarantor and the Agent, and thereafter shall be
binding upon and inure to the benefit of the Guarantor, the
Agent and each Lender and their respective successors and
assigns, except that the Guarantor shall not have the right
to assign its rights hereunder or any interest herein
without the prior written consent of the Majority Lenders.
(i) All payments required to be made by the
Guarantor hereunder shall be calculated without reference
to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of any
set-off or counterclaim.
(j) The Guarantor authorizes to the fullest
extent permitted by applicable law any Lender to apply any
credit balance to which the Guarantor is entitled on any
account of the Guarantor with that Lender in satisfaction
of any sum due and payable from the Guarantor to such
Lender hereunder but unpaid; for this purpose, the Lender
is authorized to purchase with the moneys standing to the
credit of any such account such other currencies as may be
necessary to effect such application. No Lender shall be
obliged to exercise any right given to it by this Section
8(j). In the event of the Lender exercising any right given
to it under this Section 8(j), such Lender shall
immediately notify the Agent.
(k) If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby
(l) Any provision of this Agreement and the
Guaranty may be amended only if the Guarantor and the
Majority Lenders so agree in writing. Any Event of Default
or breach of any provision of this Agreement and the
Guaranty may be waived before or after it occurs only if
the Majority Lenders so agree in writing but an amendment
or waiver which changes or relates to: (a) the amount of
the indebtedness of the Guarantor hereunder or under the
Guaranty, (b) the date on which any sum becomes payable by
the Guarantor hereunder or under the Guaranty, or (c) this
Section 8(l), shall require the agreement of each Lender.
(m) THIS GUARANTY AGREEMENT AND THE GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE CREDITORS AND THE
UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(n) Any legal action or proceeding with respect
to this Guaranty Agreement or the Guaranty may be brought
in the courts of the State of New York or of the United
States of America for the Southern District of New York,
and, by execution and delivery of this Guaranty Agreement,
the Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts. The
Guarantor hereby irrevocably designates, appoints and em
powers CT Corporation System with offices on the date
hereof at 1633 Broadway, New York, New York 10019, as its
designee, appointee and agent to receive and accept for and
on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall
cease to be available to act as such, the Guarantor agrees
to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this
provision satisfactory to the Agent which approval shall
not be unreasonably withheld. The Guarantor hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over the Guarantor, and agrees not to plead or
claim, in any legal action or proceeding with respect to
this Guaranty Agreement or the Guaranty brought in any of
the aforesaid courts, that any such court lacks
jurisdiction over the Guarantor. The Guarantor further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Guarantor at its
address set forth opposite its signature below, such
service to become effective 30 days after such mailing.
The Guarantor hereby irrevocably waives any objection to
such service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding
commenced hereunder that service of process was in any way
invalid or ineffective. Nothing herein shall affect the
right of any of the Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other
jurisdiction.
The Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty
Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead
or claim in any such court that such action or proceeding
brought in any such court has been brought in an
inconvenient forum.
(o) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY
AGREEMENT, THE OTHER FACILITY DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
(p) This Guaranty Agreement and the Guaranty 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.
AS WITNESS the hands of the duly authorized
representatives of the parties hereto the day and year
first before written.
ENTERGY CORPORATION
By
Title:
Name:
UNION BANK OF SWITZERLAND as Agent
By
Title:
Name:
By
Title:
Name:
FIRST AMENDMENT
Dated as of March 12, 1996, to the
GUARANTY AGREEMENT,
Dated as of November 27, 1995
Between
ENTERGY CORPORATION
as Guarantor,
and
UNION BANK OF SWITZERLAND
as Agent
W I T N E S S E T H :
WHEREAS, EP Edegel, Inc (the "Borrower"), Union Bank
of Switzerland, Houston Agency (the "Bank") and Union Bank
of Switzerland, as Agent (the "Agent"), entered into a
Credit Agreement, dated as of November 27, 1995 (the
"Credit Agreement"), providing for the making of the Loan
to the Borrower;
WHEREAS, Entergy Enterprises, Inc., a Louisiana
corporation which is a wholly-owned Subsidiary of the
Guarantor, has executed and delivered its First Guaranty
Agreement, dated as of November 27, 1995, in favor of the
Agent with respect to the obligations of the Borrower under
the Credit Agreement;
WHEREAS, Entergy Corporation, a Delaware corporation
(the "Guarantor") has executed and delivered its Guaranty
Agreement, dated November 27, 1995, in favor of the Agent
with respect to all amounts payable by the First Guarantor
under the First Guaranty Agreement; and
WHEREAS, the Lenders desire to amend the Guaranty
Agreement in accordance with Section 8(l) of the Guaranty
Agreement.
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to the Guarantor and the terms,
covenants and conditions set forth therein and herein, the
parties hereto agree as follows:
1. Defined terms used herein shall have the meanings
given to them in the Guaranty Agreement, except as
otherwise defined in the Credit Agreement or herein.
2. Section 4 (a) of the Guaranty Agreement is amended
by adding in line 3, within the parentheses, after the word
"NOPSI" the words ", but excluding any shares of any class
of equity security of Entergy Power Development
International Corporation and any of its direct or indirect
Subsidiaries".
3. Subsection 8(d) of the Guaranty Agreement is
amended by deleting the word "loan" in line 8 and
substituting therefor the word "Loan".
4. Subsection 8(i) of the Guaranty Agreement, shall be
amended by deleting said subsection in its entirety and
substituting the following:
(i) All payments required to be made by
the Guarantor hereunder shall be made in United
States Dollars and shall be calculated without
reference to any set-off or counterclaim and
shall be made free and clear of and without any
deduction for or on account of any set-off or
counterclaim.
5. Except as amended herein, the Guaranty Agreement
shall be unchanged and the Guaranty Agreement shall
henceforth consist of the Guaranty Agreement as amended by
the First Amendment.
6. This First Amendment 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.
WITNESS the hands of the duly authorized
representatives of the parties hereto as of the day and
year first above written.
UNION BANK OF SWITZERLAND, as Agent
By
Title:
Name:
By
Title:
Name:
ENTERGY CORPORATION
By: /s/William J. Reags, Jr.
Title: Vice President and Treasurer
Name: William J. Regan, Jr.
Exhibit C-1(k)
GUARANTY
Entergy Enterprises, Inc., a Louisiana corporation (the
"Guarantor"), hereby agrees with Union Bank of Switzerland
(including its successors and assigns, the "Bank"), as
follows:
Section 1. The Guaranty. The Guarantor, as primary
obligor and not merely as a surety, hereby irrevocably and
unconditionally guarantees the full and punctual payment
(whether at stated maturity, upon demand or acceleration or
otherwise) of all amounts payable by EP Edegel, Inc., a
Delaware corporation (the "Company"), pursuant to the
Standby Letter of Credit Agreement (as amended from time to
time, the "Agreement") entered into by the Company in
connection with the issuance by the Bank of its Irrevocable
Standby Letter of Credit No. SBY503901 dated October 12,
1995 (the "Letter of Credit"). Upon failure by the Company
to pay punctually any such amount, the Guarantor shall
forthwith on demand pay the amount not so paid at the place
and in the manner specified in the Agreement. This is a
guaranty of payment and not merely of collection.
Section 2. Obligations Unconditional. The obligations
of the Guarantor hereunder shall be unconditional and
absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the
Company under the Agreement, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to
the Agreement or the Letter of Credit, provided that no
increase in the amount of the Letter of Credit shall be
effective as against the Guarantor without the written
consent of the Guarantor;
(iii) any release, non-perfection or invalidity of any
direct or indirect security for any obligation of the
Company under the Agreement;
(iv) any change in the corporate existence, structure
or ownership of the Company, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the
Company or its assets or any resulting release or discharge
of any obligation of the Company contained in the Agreement;
(v) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against the
Company, the Bank or any other corporation or person,
whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Company for any reason of the Agreement, or any
provision of applicable law or regulation purporting to
prohibit the payment by the Company of any amount payable by
the Company under the Agreement; or
(vii) any other act or omission to act or delay of any
kind by the Company, the Bank or any other corporation or
person or any other circumstance whatsoever which might, but
for the provisions of this Section, constitute a legal or
equitable discharge of the Guarantor's obligations
hereunder.
Section 3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances. The Guarantor's
obligations hereunder shall remain in full force and effect
until the Letter of Credit shall have terminated and all
amounts payable by the Company under the Agreement shall
have been paid in full. If at any time any payment by the
Company under the Agreement is rescinded or must be
otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or otherwise,
the Guarantor's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been
due but not made at such time.
Section 4. Waivers; Subrogation. The Guarantor
irrevocably waives acceptance hereof, diligence,
presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any
action be taken by any corporation or person against the
Company or any other corporation or person. The Guarantor
shall not be entitled and shall not seek, by reason of
having made any payment hereunder, to be subrogated to the
rights of the Bank against the Company with respect to such
payment or otherwise to be reimbursed, indemnified or
exonerated by the Company in respect thereof until the
Guarantor's obligations hereunder shall have been discharged
in full in accordance with Section 3.
Section 5. Stay of Acceleration. If acceleration of
the time for payment of any amount payable by the Company
under the Agreement is stayed upon the insolvency,
bankruptcy or reorganization of the Company, all such
amounts otherwise subject to acceleration under the terms of
the Agreement shall nonetheless be payable by the Guarantor
hereunder forthwith on demand by the Bank.
Section 6. Representations. The Guarantor hereby
represents and warrants that: (i) it is a corporation duly
organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation specified above,
and has all requisite power and authority, corporate and
otherwise, to enter into this Guaranty and to incur its
obligations provided for herein, all of which have been duly
authorized by all proper and necessary corporate action on
its part; (ii) this Guaranty has been duly executed and
delivered by the Guarantor and constitutes a valid and
legally binding agreement of the Guarantor, enforceable in
accordance with its terms, except as enforceability may be
affected by bankruptcy, insolvency and other laws relating
to or affecting creditors' rights generally and by general
principles of equity; and (iii) the execution, delivery and
performance of this Guaranty will not conflict with, result
in a breach of or constitute a default under any law,
regulation or governmental order or any agreement or
instrument to which the Guarantor is a party or by which it
is bound.
Section 7. Expenses; Set-off. The Guarantor agrees to
pay on demand all costs and expenses of the Bank, including
reasonable fees and expenses of counsel, in connection with
the enforcement against it of this Guaranty and the
protection of the Bank's rights hereunder, including any
bankruptcy, insolvency and other enforcement proceedings
with respect to the Guarantor. In addition, the Guarantor
shall pay any and all stamp and other taxes and fees payable
or determined to be payable in connection with the
execution, delivery, filing and recording of this Guaranty,
and agrees to save the Bank harmless from and against any
and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees. The
Guarantor hereby grants to the Bank a right of set-off
against any amounts standing to the credit of the Guarantor
(including any of its offices or divisions) on the books of
any office of Union Bank of Switzerland in any demand
deposit or other account maintained with such office.
Section 8. Taxes. All payments under this Guaranty
will be payable to the Bank free and clear of any and all
present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar
charges other than those imposed on the overall net income
of the Bank ("Taxes"). If any Taxes are required to be
withheld or deducted from any amount payable under this
Guaranty, then the amount payable under this Guaranty will
be increased to the amount which, after deduction from such
increased amount of all Taxes required to be withheld or
deducted therefrom, will yield to the Bank the amount stated
to be payable under this Guaranty. If any of the Taxes
specified in this Section are paid by the Bank, the
Guarantor will, upon demand of the Bank, reimburse the Bank
for such payments, together with any interest and penalties
which may be imposed by any governmental agency or taxing
authority.
Section 9. Amendments and Waivers. Any provision of
this Guaranty may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the
Guarantor and the Bank. No failure or delay by the Bank in
exercising any right, power or privilege hereunder or
partial exercise thereof shall preclude any other or further
exercise thereof or the exercise or any other right, power
or privilege.
Section 10. Successors and Assigns. This Guaranty
shall inure to the benefit of, and shall be enforceable by,
the Bank and its successors and assigns (including any party
to which any of the Bank's rights under the Agreement shall
be assigned).
Section 11. No Third Party Beneficiaries. This
Guaranty and all provisions hereof are for the sole benefit
of the Bank and shall not inure to the benefit of any other
person or entity. No such person or entity is intended to
be or shall be a third party beneficiary hereof.
Section 12. Governing Law. THIS GUARANTY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES). The Guarantor hereby irrevocably submits to
the non-exclusive jurisdiction of any U.S. federal or state
court in the State of New York for the purpose of any suit,
action, proceeding or judgment relating to or arising out of
this Guaranty. The Guarantor hereby consents to the laying
of venue in any such suit, action or proceeding in New York
County, New York, and hereby irrevocably waives any claim
that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Any
process in any such action shall be duly served if mailed to
the Guarantor by registered mail, postage prepaid.
Section 13. WAIVER OF JURY TRIAL. EACH OF THE
GUARANTOR AND THE BANK HEREBY IRREVOCABLY WAIVES ANY RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be duly executed by its duly authorized officer
as of October 12, 1995.
Entergy Enterprises, Inc.
By _________________________
Title:
Exhibit C-1(l)
GUARANTY
Entergy Corp., a Delaware corporation (the
"Guarantor"), hereby agrees with Union Bank of Switzerland
(including its successors and assigns, the "Bank"), as
follows:
Section 1. The Guaranty. Entergy Enterprises, Inc., a
Louisiana corporation ("EEI"), has issued its Guaranty dated
the date hereof in favor of the Bank (as amended from time
to time, the "EEI Guaranty") with respect to amounts payable
by EP Edegel, Inc., a Delaware corporation (the "Company"),
pursuant to the Standby Letter of Credit Agreement (as
amended from time to time, the "Agreement") entered into by
the Company in connection with the issuance by the Bank of
its Irrevocable Standby Letter of Credit No. SBY503901 dated
October 12, 1995 (the "Letter of Credit"). The Guarantor,
as primary obligor and not merely as a surety, hereby
irrevocably and unconditionally guarantees the full and
punctual payment (whether at stated maturity, upon demand or
acceleration or otherwise) of all amounts payable by EEI
pursuant to the EEI Guaranty. Upon failure by EEI to pay
punctually any such amount, the Guarantor shall forthwith on
demand pay the amount not so paid at the place and in the
manner specified in the EEI Guaranty. This is a guaranty of
payment and not merely of collection.
Section 2. Obligations Unconditional. The obligations
of the Guarantor hereunder shall be unconditional and
absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of EEI under
the EEI Guaranty or of the Company under the Agreement, by
operation of law or otherwise;
(ii) any modification or amendment of or supplement to
the EEI Guaranty, the Agreement or the Letter of Credit,
provided that no increase in the amount of the Letter of
Credit shall be effective as against the Guarantor without
the written consent of the Guarantor;
(iii) any release, non-perfection or invalidity of any
direct or indirect security for any obligation of EEI under
the EEI Guaranty or of the Company under the Agreement;
(iv) any change in the corporate existence, structure
or ownership of EEI or the Company, or any insolvency,
bankruptcy, reorganization or other similar proceeding
affecting EEI or the Company or their respective assets or
any resulting release or discharge of any obligation of EEI
contained in the EEI Guaranty or of the Company contained in
the Agreement;
(v) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against EEI, the
Company, the Bank or any other corporation or person,
whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or
against EEI for any reason of the EEI Guaranty or to or
against the Company for any reason of the Agreement, or any
provision of applicable law or regulation purporting to
prohibit the payment by EEI of any amount payable by EEI
under the EEI Guaranty or by the Company of any amount
payable by the Company under the Agreement; or
(vii) any other act or omission to act or delay of any
kind by EEI, the Company, the Bank or any other corporation
or person or any other circumstance whatsoever which might,
but for the provisions of this Section, constitute a legal
or equitable discharge of the Guarantor's obligations
hereunder.
Section 3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances. The Guarantor's
obligations hereunder shall remain in full force and effect
until the Letter of Credit shall have terminated and all
amounts payable by EEI under the EEI Guaranty and by the
Company under the Agreement shall have been paid in full.
If at any time any payment by EEI under the EEI Guaranty is
rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of EEI or
otherwise, the Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
Section 4. Waivers; Subrogation. The Guarantor
irrevocably waives acceptance hereof, diligence,
presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any
action be taken by any corporation or person against EEI,
the Company or any other corporation or person. The
Guarantor shall not be entitled and shall not seek, by
reason of having made any payment hereunder, to be
subrogated to the rights of the Bank against EEI with
respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by EEI in respect thereof until
the Guarantor's obligations hereunder shall have been
discharged in full in accordance with Section 3.
Section 5. Stay of Acceleration. If acceleration of
the time for payment of any amount payable by EEI under the
EEI Guaranty is stayed upon the insolvency, bankruptcy or
reorganization of EEI, all such amounts otherwise subject to
acceleration under the terms of the EEI Guaranty shall
nonetheless be payable by the Guarantor hereunder forthwith
on demand by the Bank.
Section 6. Representations. The Guarantor hereby
represents and warrants that: (i) it is a corporation duly
organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation specified above,
and has all requisite power and authority, corporate and
otherwise, to enter into this Guaranty and to incur its
obligations provided for herein, all of which have been duly
authorized by all proper and necessary corporate action on
its part; (ii) this Guaranty has been duly executed and
delivered by the Guarantor and constitutes a valid and
legally binding agreement of the Guarantor, enforceable in
accordance with its terms, except as enforceability may be
affected by bankruptcy, insolvency and other laws relating
to or affecting creditors' rights generally and by general
principles of equity; and (iii) the execution, delivery and
performance of this Guaranty will not conflict with, result
in a breach of or constitute a default under any law,
regulation or governmental order or any agreement or
instrument to which the Guarantor is a party or by which it
is bound.
Section 7. Expenses; Set-off. The Guarantor agrees to
pay on demand all costs and expenses of the Bank, including
reasonable fees and expenses of counsel, in connection with
the enforcement against it of this Guaranty and the
protection of the Bank's rights hereunder, including any
bankruptcy, insolvency and other enforcement proceedings
with respect to the Guarantor. In addition, the Guarantor
shall pay any and all stamp and other taxes and fees payable
or determined to be payable in connection with the
execution, delivery, filing and recording of this Guaranty,
and agrees to save the Bank harmless from and against any
and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees. The
Guarantor hereby grants to the Bank a right of set-off
against any amounts standing to the credit of the Guarantor
(including any of its offices or divisions) on the books of
any office of Union Bank of Switzerland in any demand
deposit or other account maintained with such office.
Section 8. Taxes. All payments under this Guaranty
will be payable to the Bank free and clear of any and all
present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar
charges other than those imposed on the overall net income
of the Bank ("Taxes"). If any Taxes are required to be
withheld or deducted from any amount payable under this
Guaranty, then the amount payable under this Guaranty will
be increased to the amount which, after deduction from such
increased amount of all Taxes required to be withheld or
deducted therefrom, will yield to the Bank the amount stated
to be payable under this Guaranty. If any of the Taxes
specified in this Section are paid by the Bank, the
Guarantor will, upon demand of the Bank, reimburse the Bank
for such payments, together with any interest and penalties
which may be imposed by any governmental agency or taxing
authority.
Section 9. Amendments and Waivers. Any provision of
this Guaranty may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the
Guarantor and the Bank. No failure or delay by the Bank in
exercising any right, power or privilege hereunder or
partial exercise thereof shall preclude any other or further
exercise thereof or the exercise or any other right, power
or privilege.
Section 10. Successors and Assigns. This Guaranty
shall inure to the benefit of, and shall be enforceable by,
the Bank and its successors and assigns (including any party
to which any of the Bank's rights under the EEI Guaranty
shall be assigned).
Section 11. No Third Party Beneficiaries. This
Guaranty and all provisions hereof are for the sole benefit
of the Bank and shall not inure to the benefit of any other
person or entity. No such person or entity is intended to
be or shall be a third party beneficiary hereof.
Section 12. Governing Law. THIS GUARANTY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES). The Guarantor hereby irrevocably submits to
the non-exclusive jurisdiction of any U.S. federal or state
court in the State of New York for the purpose of any suit,
action, proceeding or judgment relating to or arising out of
this Guaranty. The Guarantor hereby consents to the laying
of venue in any such suit, action or proceeding in New York
County, New York, and hereby irrevocably waives any claim
that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Any
process in any such action shall be duly served if mailed to
the Guarantor by registered mail, postage prepaid.
Section 13. WAIVER OF JURY TRIAL. EACH OF THE
GUARANTOR AND THE BANK HEREBY IRREVOCABLY WAIVES ANY RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be duly executed by its duly authorized officer
as of October 12, 1995.
Entergy Corp.
By _________________________
Title:
Exhibit C-1(m)
LETTER OF CREDIT AND LIQUIDITY AGREEMENT
among
ENTERGY POWER DEVELOPMENT INTERNATIONAL CORPORATION,
VARIOUS BANKS,
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Issuing Bank,
and
SWISS BANK CORPORATION, NEW YORK BRANCH,
as Agent
Dated as of December 28, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 9
SECTION 1.03. Accounting Terms 9
ARTICLE II. AMOUNT AND TERMS OF CREDIT. 9
SECTION 2.01. The Commitments 9
SECTION 2.02. Extension of Termination
Date; Replacement of
Non-Continuing Bank 9
SECTION 2.03. Letter of Credit
Participations 10
SECTION 2.04. Agreement to Repay Letter of
Credit Drawing 12
SECTION 2.05. Fees 13
SECTION 2.06. Increased Costs 13
SECTION 2.07. Illegality 14
SECTION 2.08. Payments and Computations 14
SECTION 2.09. Taxes 15
SECTION 2.10. Sharing of Payments, Etc. 17
ARTICLE III. CONDITIONS PRECEDENT 18
SECTION 3.01. Conditions Precedent to
Effectiveness 18
SECTION 3.02. Conditions Precedent to
Issuance of Letter of Credit 19
SECTION 3.03. Conditions Precedent to
Extensions of
Termination Date 19
ARTICLE IV. REPRESENTATIONS AND WARRANTIES 20
SECTION 4.01. Representations and
Warranties of the Company 20
ARTICLE V. COVENANTS OF THE COMPANY 21
SECTION 5.01. Affirmative Covenants 21
(a) Keep Books; Corporate Existence 21
(b) Reporting Requirements 22
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES 23
SECTION 6.01. Events of Default 23
SECTION 6.02. Remedies 24
ARTICLE VII. THE AGENT 24
SECTION 7.01. Authorization and Action 24
SECTION 7.02. Agent's Reliance, Etc. 25
SECTION 7.03. SBC and Affiliates 25
SECTION 7.04. Bank Credit Decision 26
SECTION 7.05. Indemnification 26
SECTION 7.06. Successor Agent 26
ARTICLE VIII. MISCELLANEOUS 27
SECTION 8.01. Amendments, Etc. 27
SECTION 8.02. Notices, Etc. 27
SECTION 8.03. No Waiver; Remedies 28
SECTION 8.04. Costs and Expenses;
Indemnification 28
SECTION 8.05. Right of Set-off 29
SECTION 8.06. Binding Effect 29
SECTION 8.07. Assignments and
Participations 30
SECTION 8.08. Governing Law 33
SECTION 8.09. Consent to Jurisdiction;
Waiver of Jury Trial 33
SECTION 8.10. Invalidity 34
SECTION 8.11. Execution in Counterparts 34
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
EXHIBIT A - Letter of Credit
EXHIBIT B-1 - Officer's Certificate of Company
EXHIBIT B-2 - Officer's Certificate of Guarantor
EXHIBIT C-1 - Opinion of Company's Counsel
EXHIBIT C-2 - Opinion of Guarantor's Counsel
EXHIBIT C-3 - Opinion of Company's and Guarantor's New York Counsel
EXHIBIT D - Consent Letter
EXHIBIT E - Guaranty
EXHIBIT F-1 - Issuance Bringdown Certificate
EXHIBIT F-2 - Extension Bringdown Certificate
EXHIBIT G - Assignment and Acceptance Agreement
EXHIBIT H - Extension Amendment
<PAGE>
LETTER OF CREDIT AND LIQUIDITY AGREEMENT
Dated as of December 28, 1995
ENTERGY POWER DEVELOPMENT INTERNATIONAL CORPORATION,
a Delaware corporation (the "Company"), the various banks
from time to time party hereto (each, a "Bank" and
collectively, the "Banks"), SWISS BANK CORPORATION, New
York Branch, as issuer of the Letter of Credit (as
hereinafter defined) (the "Issuing Bank") and SWISS BANK
CORPORATION, NEW YORK BRANCH, as Agent (in such capacity,
the "Agent"), for the Banks, agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.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):
"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.
"Agent" shall have the meaning specified in the first
paragraph of this Agreement.
"Agreement" means this Letter of Credit and Liquidity
Agreement.
"AP&L" means Arkansas Power & Light Company, an
Arkansas corporation.
"Applicable Margin" means, on any date, the
percentage 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 A- and BBB+ and BBB- and BB+
Debt A3 or Baa1 or Baa3 or and/or
Ratings above BBB and split Ba1 or
Baa2 or rated below or
split above unrated
rated
above
A- and E--0.275% E--0.325% E--0.405% E--0.675%
A3 or
above
BBB+ and
Significant Baa1 or E--0.325% E--0.325% E--0.425% E--0.725%
Subsidiary BBB and
with next Baa2 or
highest split
Senior rated
Debt above
Rating
BBB- and
Baa3
or E--0.405% E--0.425% E--0.475% E--0.80%
split
rated
above
BB+
and/or E--0.675% E--0.725% E--0.80% E--0.80%
Ba1 or
below or
unrated
E = Applicable 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.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Bank and an assignee of that
Bank, and accepted by the Agent, in substantially the form
of Exhibit G hereto.
"Bank" has the meaning specified in the first
paragraph of this Agreement.
"Base Rate" shall mean on any day the higher of (i)
the rate which SBC announces from time to time as its prime
rate, as in effect on such day, or (ii) one-half of one
percent (0.5%) plus the Federal Funds Rate for such day.
The prime rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any
customer. SBC and any Bank may make commercial loans or
other loans at rates of interest at, above or below the
Base Rate.
"Beneficiary" shall have the meaning specified in
Section 2.01.
"Business Day" means any day of the year, other than
a day on which banking institutions in New York, New York,
are authorized or required by law to remain closed.
"CitiPower" means CitiPower, Limited (ACN 064 651
056), a corporation organized under the laws of Victoria,
Australia.
"CitiPower Credit Agreement" means the Multi-Option
Syndicated Facility Agreement, to be dated on or about
January 5, 1996, among CitiPower, as Borrower, the
financial institutions specified therein, Commonwealth Bank
of Australia, as Facility Agent, and Bank of America NT &
SA, as Arranger, and any extension, renewal, refinancing or
restructuring of the "Medium Term Commitments" thereunder.
"Company" shall have the meaning specified in the
first paragraph of this Agreement.
"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 Guarantor and its Subsidiaries appearing on
a consolidated balance sheet of the Guarantor and its
Subsidiaries prepared as of the date of determination in
accordance with generally accepted accounting principles,
after eliminating all intercompany transactions and all
amounts properly attributable to minority interests, if
any, in the stock and surplus of Subsidiaries.
"Continuing Bank" shall have the meaning specified in
Section 2.02.
"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.
"Default" shall mean any event, act or condition
which with notice or lapse of time, or both, would
constitute an Event of Default.
"Drawing" shall have the meaning specified in Section
2.04(c).
"Effective Date" shall have the meaning specified in
Section 3.01.
"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 US$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
US$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 commercial
bank Affiliate of any Bank and (ii) whose long-term public
senior debt securities are rated at least "BBB-" by S&P or
at least "Baa3" by Moody's; or (b) that is approved by the
Company (which approval shall not be unreasonably
withheld), the Agent and the Majority Banks.
"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 (ii) the withdrawal of the Company or any of its
ERISA Affiliates from an ERISA Plan during a plan year in
which the Company or any of its ERISA Affiliates was a
"substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) 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
(iv) the institution of proceedings to terminate an ERISA
Plan by the PBGC or to appoint a trustee to administer any
ERISA Plan or (v) 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.
"Events of Default" has the meaning specified in
Section 6.01.
"Extension Amendment" shall have the meaning
specified in Section 2.02.
"Extension Satisfaction Date" shall have the meaning
specified in Section 3.03(a).
"Facility Documents" shall mean this Agreement, the
Guaranty and the Fee Letter.
"Federal Funds Rate" shall mean, 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 December 28, 1995, between the Company and the Agent.
"GSU" means Gulf States Utilities Company, a Texas
corporation.
"Guarantor" shall mean Entergy Corporation, a
Delaware corporation.
"Guaranty" shall have the meaning specified in
Section 3.01(a)(ix).
"Guaranty Event of Default" shall mean an Event of
Default under the Guaranty.
"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.
"Indemnified Person" shall have the meaning set out
in Section 8.04(b).
"Institutions" shall have the meaning set out in
Section 8.07(e).
"Issuance Date" means January 3, 1996.
"Issuing Bank" shall have the meaning specified in
the first paragraph of this Agreement.
"L/C Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I
hereto, as the same may be (x) reduced from time to time as
a result of reductions in the Stated Amount or (y) adjusted
from time to time as a result of assignments to or from
such Bank pursuant to Section 8.07.
"L/C Percentage" of any Bank means a fraction
(expressed as a percentage) the numerator of which is the
L/C Commitment of such Bank at such time and the
denominator of which is the Total L/C Commitment at such
time.
"Lending Office" means, for each Bank, the office of
such Bank listed in the column entitled "Lending Office" in
Schedule II hereto or as specified in accordance with
Section 8.07.
"Letter of Credit" shall have the meaning specified
in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning
specified in Section 2.05(a).
"LP&L" means Louisiana Power & Light Company, a
Louisiana corporation.
"Majority Banks" means, at any time, the Issuing Bank
and Banks holding at least 66-2/3% of the Total L/C
Commitments or of the amount of the Unpaid Drawing.
"Moody's" means Moody's Investors Service, Inc. or
any successor thereto.
"MP&L" means Mississippi Power & Light Company, a
Mississippi corporation.
"Non-Continuing Bank" shall have the meaning
specified in Section 2.02.
"OECD" means the Organization for Economic
Cooperation and Development.
"Participant" shall have the meaning specified in
Section 2.03(a).
"Payment Office" shall mean the office of the Agent
located at 222 Broadway, New York, New York 10038,
Attention: Client Services.
"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.
"Quarterly Payment Date" means the last Business Day
of each March, June, September and December occurring after
the Issuance Date and prior to the Termination Date.
"Reference Bank" means Swiss Bank Corporation, New
York Branch.
"Register" has the meaning specified in Section
8.07(c).
"Reportable Event" has the meaning assigned to that
term in Title IV of ERISA.
"S&P" means Standard & Poor's Rating Group or any
successor thereto.
"SBC" means Swiss Bank Corporation, New York Branch,
in its individual capacity.
"SEC" means the United States Securities and Exchange
Commission.
"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 System Energy Resources, Inc., an
Arkansas corporation.
"Significant Subsidiary" means LP&L, SERI, AP&L,
MP&L, GSU, and any other Subsidiary of the Guarantor: (i)
the total assets (after intercompany eliminations) of which
exceed 5% of the total assets of the Guarantor and its
Subsidiaries or (ii) the net worth of which exceeds 5% of
the Consolidated Net Worth of the Guarantor and its
Subsidiaries, in each case as shown on the most recent
audited consolidated balance sheet of the Guarantor and its
Subsidiaries; provided that the Company and all of its
direct and indirect Subsidiaries shall be excluded from
this definition.
"Stated Amount" of the Letter of Credit shall, at any
time, mean the maximum amount available to be drawn
thereunder (in each case determined without regard to
whether any conditions to drawing could then be met).
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might
have voting power by reason of the happening of any
contingency) is at the time owned by such Person and/or one
or more Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such
Person has more than a 50% equity interest at the time.
"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 December 27, 1996, as such
date may be extended pursuant to Section 2.02, but in no
event shall the Termination Date be a date later than the
earlier to occur of (x) December 31, 2000 or (y) the date
on which the "Medium Term Commitment" under the CitiPower
Credit Agreement is reduced to zero.
"Total L/C Commitment" means, at any time, the sum of
the L/C Commitments of each of the Banks.
"Unpaid Drawing" shall have the meaning specified in
Section 2.04(a).
SECTION I.02. Computation of Time Periods. In this
Agreement, unless otherwise indicated, 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 I.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 of the Guarantor dated as of December
31, 1994.
ARTICLE II.
AMOUNT AND TERMS OF CREDIT.
SECTION II.01. The Commitments. (a) Subject to the
terms and upon the conditions set forth herein, the Issuing
Bank hereby agrees to issue to Commonwealth Bank of
Australia (the "Beneficiary") on the Issuance Date an
irrevocable standby letter of credit substantially in the
form of Exhibit A attached hereto (the "Letter of Credit"),
in the face amount of the Total L/C Commitment.
SECTION II.02. Extension of Termination Date;
Replacement of Non-Continuing Bank. The Agent shall, no
more than 135 days and not less than 105 days prior to the
Termination Date, inquire of each Bank and the Issuing Bank
whether it desires that the Termination Date be extended
for an additional period of 364 days. Each Bank shall
respond to such request no later than 90 days prior to the
Termination Date, with the failure of any Bank to respond
being deemed to be a negative response. If the Agent and
the Issuing Bank elect to extend the Termination Date and
the conditions precedent set forth in Section 3.03 have
been satisfied, then the Letter of Credit, in its then
current Stated Amount, automatically shall be extended for
an additional period of 364 days and each Bank that has
responded affirmatively as set forth above (each such Bank,
a "Continuing Bank") shall enter into an amendment to this
Agreement substantially in the form of Exhibit H (such
amendment, an "Extension Amendment") pursuant to which the
Termination Date shall be extended as to each Continuing
Bank to and including the date which is 364 days after the
Termination Date. If the Agent and the Issuing Bank do not
elect to extend the Termination Date, the Agent shall so
notify the Company, the Guarantor and the Beneficiary no
later than 60 days prior to the Termination Date. In the
event that one or more Banks (each a "Non-Continuing Bank")
do not agree to such extension, the Agent may, on or before
the Termination Date, provide another financial institution
to acquire the L/C Commitment of such Non-Continuing Bank
and all amounts owing to such Non-Continuing Bank, which
acquisition of commitment and replacement of the Non-
Continuing Bank shall be effected in the Extension
Amendment.
SECTION II.03. Letter of Credit
Participations. (a) Immediately upon the issuance by the
Issuing Bank of the Letter of Credit, the Issuing Bank
shall be deemed to have sold and transferred to each Bank,
other than SBC (each such Bank, in its capacity under this
Section 2.03, a "Participant"), and each such Participant
shall be deemed irrevocably and unconditionally to have
purchased and received from the Issuing Bank, without
recourse or warranty, an undivided interest and participa
tion, to the extent of such Participant's L/C Percentage,
in the Letter of Credit, the drawing made thereunder and
the obligations of the Company under this Agreement with
respect thereto, and any guaranty pertaining thereto. Upon
any change in the Total L/C Commitment or the L/C
Percentages of the Banks pursuant to Section 8.07, it is
hereby agreed that, with respect to the Letter of Credit
and the Unpaid Drawing, there shall be an automatic
adjustment to the participations pursuant to this Section
2.03 to reflect the new L/C Percentages of the assignor and
assignee Bank or of all Banks, as the case may be.
(b) In determining whether to pay under the Letter of
Credit, the Issuing Bank shall have no obligation relative
to the other Banks other than to confirm that any documents
required to be delivered under the Letter of Credit appear
to have been delivered and that they appear to comply on
their face with the requirements of the Letter of Credit.
Any action taken or omitted to be taken by the Issuing Bank
under or in connection with the Letter of Credit if taken
or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Issuing Bank any
resulting liability to the Company or any Bank.
(c) In the event that the Issuing Bank makes any
payment under the Letter of Credit and the Company shall
not have reimbursed such amount in full to the Issuing Bank
pursuant to Section 2.04(a), the Issuing Bank shall
promptly notify the Agent, which shall promptly notify each
Participant of such failure, and each Participant shall
promptly and unconditionally pay to the Issuing Bank the
amount of such Participant's L/C Percentage of such unreim
bursed payment in Dollars and in same day funds. If the
Issuing Bank so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund
a payment under the Letter of Credit, such Participant
shall make available to the Issuing Bank in Dollars such
Participant's L/C Percentage of the amount of such payment
on such Business Day in same day funds. If and to the
extent such Participant shall not have so made its L/C Per
centage of the amount of such payment available to the
Issuing Bank, such Participant agrees to pay to the Issuing
Bank forthwith on demand such amount, together with
interest thereon, for each day from such date until the
date such amount is paid to the Issuing Bank at the Federal
Funds Rate. The failure of any Participant to make avail
able to the Issuing Bank its L/C Percentage of any payment
under the Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available
to the Issuing Bank its L/C Percentage of the Letter of
Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any
other Participant to make available to the Issuing Bank
such other Participant's L/C Percentage of any such
payment.
(d) Whenever the Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any
payments from the Participants pursuant to clause
(c) above, the Issuing Bank shall pay to each Participant
which has paid its L/C Percentage thereof, in Dollars and
in same day funds, an amount equal to such Participant's
share (based upon the proportionate aggregate amount
originally funded by such Participant to the aggregate
amount funded by all Participants) of the principal amount
of such reimbursement obligation and interest thereon
accruing after the purchase of the respective partici
pations.
(e) Upon the request of any Participant, the Issuing
Bank shall furnish to such Participant a copy of the Letter
of Credit and such other documentation as may reasonably be
requested by such Participant.
(f) The obligations of the Participants to make
payments to the Issuing Bank with respect to the Letter of
Credit shall be irrevocable and not subject to any qualifi
cation or exception whatsoever and shall be made in accor
dance with the terms and conditions of this Agreement under
all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Facility Documents;
(ii) the existence of any claim, setoff, defense
or other right which the Company may have at any time
against the Beneficiary, any transferee of the Letter
of Credit (or any Person for whom any such transferee
may be acting), the Agent, the Issuing Bank, any
Participant, or any other Person, whether in con
nection with this Agreement, the Letter of Credit, the
transactions contemplated herein or any unrelated
transactions (including any underlying transaction
between the Company and the Beneficiary);
(iii) any draft, certificate or any other document
presented under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms
of any of the Facility Documents; or
(v) the occurrence of any Default or Event of
Default.
SECTION II.04. Agreement to Repay Letter of Credit
Drawing. (a) The Company hereby agrees to pay to the
Agent, for the account of the Banks, in immediately avail
able funds at the Payment Office, the amount of the payment
or disbursement made by the Issuing Bank under the Letter
of Credit (such amount, so paid until reimbursed, the
"Unpaid Drawing"), on or prior to the Termination Date; the
Company also agrees to pay to the Agent, for the account of
the Banks, interest on the amount of such Unpaid Drawing
from the date paid or disbursed by the Issuing Bank to the
date of repayment at a rate per annum which shall be the
Base Rate in effect from time to time, with interest to be
payable on each Quarterly Payment Date occurring after the
date of the Drawing and on the date of any whole or partial
repayment of the Unpaid Drawing. The Issuing Bank shall
give the Company prompt (and, in any event, by 9:00 A.M.
(New York time) on the next Business Day) notice of the
Drawing under the Letter of Credit, provided that the
failure to give any such notice shall in no way affect,
impair or diminish the Company's obligations hereunder.
(b) The Company shall have the right to prepay the
Unpaid Drawing, without premium or penalty, in whole or in
part, from time to time, provided that (i) the Company
shall give the Agent at its Payment Office at least one
Business Day prior notice of its intent to prepay the
Unpaid Drawing and the amount of such prepayment, which
notice the Agent shall promptly transmit to each of the
Banks and (ii) each prepayment shall be in an aggregate
principal amount of at least $5,000,000 but no partial
prepayment shall reduce the outstanding amount of the
Unpaid Drawing to an amount less than $5,000,000.
(c) The obligations of the Company under this Section
2.04 to reimburse the Issuing Bank with respect to the
Unpaid Drawing (including, in each case, interest thereon)
shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim
or defense to payment which the Company may have or have
had against any Bank (including in its capacity as issuer
of the Letter of Credit or as Participant), including,
without limitation, any defense based upon the failure of a
drawing under the Letter of Credit (the "Drawing") to
conform to the terms of the Letter of Credit or any
nonapplication or misapplication by the Beneficiary of the
proceeds of the Drawing; provided, however, that the
Company shall not be obligated to reimburse the Issuing
Bank for any wrongful payment made by the Issuing Bank
under the Letter of Credit as a result of (i) its failure
to confirm that any documents required to be delivered
under the Letter of Credit appear to have been delivered
and that they appear to comply on their face with the
requirements of the Letter of Credit and (ii) acts or
omissions constituting willful misconduct or gross
negligence on the part of the Issuing Bank.
SECTION II.05. Fees. (a) The Company agrees to pay
to the Agent for distribution to each Bank (based on their
respective L/C Percentages) a fee in respect of the Letter
of Credit issued hereunder (the "Letter of Credit Fee"),
for the period from the Issuance Date to the earlier of (i)
the date of the Drawing or (ii) the Termination Date,
computed at a rate per annum equal to the Applicable Margin
on the daily average Stated Amount of the Letter of Credit
and on the basis of a year of 360 days. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears
on each Quarterly Payment Date and on the Termination Date.
(b) The Company shall pay, upon the Drawing under,
transfer of or amendment to, the Letter of Credit, such
reasonable amount as shall at the time of such event be the
administrative charge which the Issuing Bank is generally
imposing in connection with such occurrence with respect to
letters of credit.
(c) The Company shall pay to each of the Agent and
the Issuing Bank, for its own account, such other fees as
have been agreed to in writing by the Company and the Agent
and/or the Issuing Bank.
SECTION II.06. Increased Costs. If, due to either
(i) the introduction of or any change 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 the Issuing Bank or any Participant of issuing, funding
or maintaining the Letter of Credit or the Unpaid Drawing,
then the Company shall from time to time, upon demand by
the Issuing Bank or such Participant (with a copy of such
demand to the Agent), pay to the Agent for the account of
such Bank additional amounts sufficient to compensate the
Issuing Bank or such Bank on an after-tax basis for such
increased cost, provided that (x) the Issuing Bank or such
Bank, as the case may be, will in good faith provide the
Company with reasonable notice of such increased cost and
(y) the Agent shall have the right to replace any Bank
requesting compensation under this Section 2.06. A
certificate as to the amount of such increased cost,
submitted to the Company and the Agent by the Issuing Bank
or such Bank, as the case may be, shall be conclusive and
binding for all purposes, absent manifest error. Within 30
days following receipt of any refund of amounts with
respect to increased costs for which the Issuing Bank or
any Bank was previously indemnified under this Section
2.06, the Issuing Bank or such Bank, as the case may be,
shall pay to the Company such refunded amounts.
SECTION II.07. Illegality. Notwithstanding any
other provision of this Agreement, if any Bank shall notify
the Agent that the introduction of or any 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 such Bank to make, maintain or
fund its interest in the Unpaid Drawing hereunder or to
perform its obligations hereunder, the Company shall
forthwith prepay in full such Bank's L/C Percentage of the
Unpaid Drawing, together with interest accrued thereon.
SECTION II.08. Payments and Computations. (a) The
Company shall make each payment hereunder not later than
12:00 noon (New York City time) on the day when due to the
Agent at its Payment Office in same day funds. The Agent
will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section
2.06, 2.07 or 2.09) to the Banks, 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 in respect of
the interest assigned thereby to the Bank 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 Company hereby authorizes each Bank, if and
to the extent payment owed to such Bank is not made when
due hereunder, to charge from time to time to the extent
permitted by law against any or all of the Company's
accounts with such Bank any amount so due.
(c) All computations of interest shall be made by the
Agent on the basis of a year of 365 days. Each
determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder 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.
(e) Unless the Agent shall have received notice from
the Company prior to the date on which any payment is due
to the Banks hereunder that the Company will not make such
payment in full, the Agent may assume that the Company 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 Bank on such due date an amount equal
to the amount then due such Bank. If and to the extent that
the Company shall not have so made such payment in full to
the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary
contained herein, any amount payable by the Company
hereunder 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 then current Base Rate plus 2%, payable
upon demand.
(g) All payments required to be made by the Company
hereunder shall be calculated without reference to any set-
off or counterclaim and shall be made free and clear of and
without any deduction for or on account of any set-off or
counterclaim.
(h) The Company authorizes to the fullest extent
permitted by applicable law any Bank to apply any credit
balance to which the Company is entitled on any account of
the Company with that Bank in satisfaction of any sum due
and payable from the Company to such Bank hereunder but
unpaid; for this purpose, the Bank is authorized to
purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect
such application. No Bank shall be obliged to exercise any
right given to it by this Section 2.08(h). In the event of
the Bank exercising any right given to it under this
Section 2.08(h), such Bank shall immediately notify the
Agent.
SECTION II.09. Taxes. (a) Any and all payments by
the Company hereunder shall be made 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 Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank or the Agent
(as the case may be) is organized 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 Company
shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Bank 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 2.09) such Bank 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
Company shall make such deductions and (iii) the Company
shall pay the full amount required to the relevant taxation
authority or other authority in accordance with applicable
law.
(b) In addition, the Company 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 from the
execution, delivery or registration of, or otherwise with
respect to, this Agreement (hereinafter referred to as
"Other Taxes").
(c) The Company will indemnify each Bank 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 2.09) paid by such Bank 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 Bank or the Agent (as the case
may be) makes written demand therefor. Nothing herein shall
preclude the right of the Company to contest any such Taxes
or Other Taxes so paid, and the Banks in question or the
Agent (as the case may be) will, following notice from, and
at the expense of, the Company, take such actions as the
Company may reasonably request to preserve the Company'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 Banks or the Agent were
previously indemnified under this Section 2.09, pay to the
Company such refunded amounts (including any interest paid
by the relevant taxing authority with respect to such
amounts).
(d) Prior to the Effective Date in the case of SBC,
and on the date of the Assignment and Acceptance pursuant
to which it became a Bank in the case of each other Bank,
and from time to time thereafter if requested by the
Company or the Agent, each Bank organized under the laws of
a jurisdiction outside the United States shall, to the
extent it is entitled to do so, provide the Agent and the
Company with the forms prescribed by the Internal Revenue
Service of the United States certifying that such Bank is
exempt from United States withholding taxes with respect to
all payments to be made to such Bank hereunder. If for any
reason during the term of this Agreement, any Bank 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 Bank shall
notify the Agent and the Company in writing to that effect.
(e) Any Bank claiming any additional amounts payable
pursuant to this Section 2.09 shall use its best efforts
(consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its
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 Bank, be otherwise
disadvantageous to such Bank.
(f) Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements and
obligations of the Company contained in this Section 2.09
shall survive the payment in full of principal and interest
hereunder.
SECTION II.10. Sharing of Payments, Etc. If any
Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Unpaid Drawing (other than
pursuant to Section 2.06, 2.07 or 2.09) in excess of its
ratable share of payments on account of the Unpaid Drawing
obtained by all the Banks, such Bank shall forthwith
purchase from the other Banks such participations in the
Unpaid Drawing as shall be necessary to cause such
purchasing Bank 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 Bank, such purchase from each Bank shall be
rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together
with an amount equal to such Bank's ratable share
(according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Company
agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.10 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 Bank were the direct
creditor of the Company in the amount of such
participation.
ARTICLE III.
CONDITIONS PRECEDENT
SECTION III.01. Conditions Precedent to
Effectiveness. This Agreement shall become effective on
December 28, 1995 (the "Effective Date"), provided that all
of the following conditions are met:
(a) The Agent shall have received the following, each
dated the same date, in form and substance satisfactory to
the Agent:
(i) This Agreement and the Fee Letter,
executed by the Company;
(ii) Certified copies of the resolutions of the
Board of Directors of the Company approving this
Agreement, and of all documents evidencing other
necessary corporate action with respect to this
Agreement;
(iii) A certificate of the Secretary or
an Assistant Secretary of the Company substantially
in the form of Exhibit B-1 certifying (A) the names
and true signatures of the officers of the Company
authorized to sign this Agreement 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
Company, 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 by the Company
of this Agreement;
(iv) A certificate of the Secretary or an
Assistant Secretary of the Guarantor substantially
in the form of Exhibit B-2 certifying (A) the names
and true signatures of the officers of the Guarantor
authorized to sign the Guaranty and any other
documents to be delivered thereunder; (B) that
attached thereto are true and correct copies of the
Certificate of Incorporation and the By-laws of the
Guarantor, 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 by the Guarantor
of the Guaranty;
(v) A favorable opinion of counsel for the
Company, acceptable to the Agent, substantially in
the form of Exhibit C-1 hereto and as to such other
matters as the Agent may reasonably request;
(vi) A favorable opinion of counsel for the
Guarantor, acceptable to the Agent, substantially in
the form of Exhibit C-2 hereto and as to such other
matters as the Agent may reasonably request;
(vii) A favorable opinion of special New
York counsel for the Company and the Guarantor,
acceptable to the Agent, substantially in the form
of Exhibit C-3 hereto and as to such other matters
as the Agent may reasonably request;
(viii) Evidence substantially in the form of
Exhibit D that CT Corporation System has agreed to
act as the agent for the service of process for the
Company and the Guarantor in New York; and
(ix) A Guaranty substantially in the form of
Exhibit E (the "Guaranty") duly executed and
delivered between the Guarantor and the Agent.
(b) The Agent and the Issuing Bank shall have
received the fees payable pursuant to the Fee Letter.
SECTION III.02. Conditions Precedent to Issuance of
Letter of Credit. The Issuing Bank shall issue the Letter
of Credit provided that the following conditions are met:
(a) On the Issuance Date, there shall exist no
Default of Event or Default and all representations and
warranties contained herein and in the other Facility
Documents shall be true and correct in all material
respects with the same effect as though such
representations and warranties had been made on and as
of the Issuance Date; and
(b) On the Issuance Date, the Agent shall have
received certificates substantially in the form of
Exhibit F-1 of the Company and of the Guarantor, each
dated the Issuance Date.
SECTION III.03. Conditions Precedent to Extensions
of Termination Date. The Termination Date automatically
shall be extended pursuant to Section 2.02, provided that
the following conditions are met:
(a) The Agent shall have received certificates
substantially in the form of Exhibit F-2 of the Company
and of the Guarantor on or prior to the fifth Business
Day preceding the Termination Date (the "Extension
Satisfaction Date"), each dated the Extension
Satisfaction Date; and
(b) On the Extension Satisfaction Date and on the
second Business Day after the Extension Satisfaction
Date, there shall exist no Default or Event of Default.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION IV.01. Representations and Warranties of the
Company. The Company represents and warrants as follows:
(a) The Company 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, 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
Company of this Agreement are within the Company's
corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i)
the Company's charter or by-laws, (ii) laws applicable
to the Company or its properties or (iii) any
contractual or legal restriction binding on or affecting
the Company or its properties.
(c) Except for authorizations, approvals, notices and
filings previously given or made, as the case may be, 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 Company of this
Agreement.
(d) This Agreement is the legal, valid and binding
obligation of the Company enforceable against the
Company in accordance with its 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) No event has occurred and is continuing that
constitutes an Event of Default or a Guaranty Event of
Default or that would constitute an Event of Default or
a Guaranty Event of Default but for the requirement that
notice be given or time elapse or both.
(f) The Company 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 Company and its subsidiaries 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).
(g) The Company 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
Company is not a "holding company" as that term is
defined in the Public Utility Holding Company Act of
1935.
(h) 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 Company and its
subsidiaries, taken as a whole.
ARTICLE V.
COVENANTS OF THE COMPANY
SECTION V.01. Affirmative Covenants. So long as any
amount payable by the Company hereunder shall remain
unpaid, the Company will, unless the Majority Banks shall
otherwise consent in writing:
(a) Keep Books; Corporate Existence.
(i) keep proper books of record and account, all
in accordance with generally accepted accounting
principles; and
(ii) 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.
(b) Reporting Requirements. Furnish to the Banks:
(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 Company, (A)
consolidated balance sheets of the Company and its
subsidiaries as of the end of such quarter and (B)
consolidated statements of income, retained earnings
and cash flows of the Company 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 a duly authorized officer of the
Company as having been prepared in accordance with
generally accepted accounting principles in the United
States, consistently applied;
(ii) as soon as available and in any event within
120 days after the end of each fiscal year of the
Company, (A) consolidated balance sheets of the
Company and its subsidiaries as at the end of such
fiscal year and (B) consolidated statements of income,
retained earnings and cash flows of the Company and
its subsidiaries for such fiscal year, in each case
setting forth comparative figures for the preceding
fiscal year and certified by Coopers & Lybrand (or
such other nationally recognized public accounting
firm as the Agent may approve), if such certification
is obtained by the Company in its sole discretion, and
certified by a duly authorized officer of the Company
as having been prepared in accordance with generally
accepted accounting principles in the United States,
consistently applied;
(iii) as soon as available and in any event within
30 days after the date required for delivery under the
CitiPower Credit Agreement, the quarterly and annual
financial statements of CitiPower required to be
delivered to the Beneficiary or any of the lenders
pursuant to the CitiPower Credit Agreement;
(iv) 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 Company and within
120 days after the end of each fiscal year of the
Company, a certificate of a duly authorized officer of
the Company, stating that no Event of Default has
occurred and is continuing, or if an Event of Default
has occurred and is continuing, a statement setting
forth details of such Event of Default and the action
that the Company has taken and proposes to take with
respect thereto;
(v) as soon as possible and in any event within 5
Business Days after the Company has knowledge of the
occurrence of each 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 a duly
authorized officer of the Company setting forth
details of such Event of Default or event, as the case
may be, and the actions that the Company has taken and
proposes to take with respect thereto;
(vi) all amendments and waivers executed and
delivered in connection with the CitiPower Credit
Agreement within 30 days of the execution and delivery
of each thereof; and
(vii) from time to time, such other information or
documents (financial or otherwise) with respect to the
Company or CitiPower as the Agent or any Bank may
reasonably request.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION VI.01. Events of Default. Each of the
following events in clauses (a) through (e) shall
constitute an "Event of Default" hereunder:
(a) The Company shall fail to make any payment
of the Unpaid Drawing required to be made by it under
Section 2.04(a) when the same becomes due and payable,
or shall fail to pay interest thereon or any other
amount payable under this Agreement within three
Business Days after the same becomes due and payable;
or
(b) Any representation or warranty made by the
Company herein or by the Company (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 Company shall fail to perform or observe
any 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 Company and the Guarantor by the Agent or
any Bank; or
(d) The Guarantor defaults under the Guaranty or
any representation or statement made by the Guarantor
in the Guaranty or in any notice or other document,
certificate or statement delivered by it pursuant to
the Guaranty or in connection therewith is or proves
to have been incorrect or misleading in any material
respect when made; or
(e) The Company shall make a general assignment
for the benefit of creditors; or any proceeding shall
be instituted by or against the Company 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
Company shall take any corporate action to authorize
or to consent to any of the actions set forth above in
this subsection (e).
SECTION VI.02. Remedies. If any Event of Default
shall occur and be continuing, then, and in any such event,
the Agent shall at the request, or may with the consent, of
the Majority Banks, by notice to the Company and the
Guarantor, (i) declare all amounts payable under this
Agreement (including, without limitation, amounts payable
pursuant to Section 2.04(a), regardless of whether such
amounts are then due and payable, and amounts which could
become payable pursuant to Section 2.04(a) notwithstanding
that any drafts payable under the Letter of Credit may not
then have been drawn, negotiated or presented) to be
forthwith due and payable, whereupon the same 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 Company and/or (ii) take
such further actions at law or in equity as may be
necessary or desirable to protect the rights of the Agent,
the Issuing Bank and the Banks hereunder.
ARTICLE VII.
THE AGENT
SECTION VII.01. Authorization and Action. Each Bank
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, 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 Banks, and
such instructions shall be binding upon all Banks;
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 Bank
prompt notice of each notice given to it by the Company
pursuant to the terms of this Agreement.
SECTION VII.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 each of the
signatories hereto (other than the Company) as a Bank
hereunder until the Agent receives and accepts an
Assignment and Acceptance entered into by any such Bank, as
assignor, and an assignee pursuant to Section 8.07; (ii)
may consult with legal counsel (including counsel for the
Company), 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 Bank and
shall not be responsible to any Bank 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 Company or
to inspect the property (including the books and records)
of the Company; (v) shall not be responsible to any Bank
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 VII.03. SBC and Affiliates. SBC shall have
the same rights and powers under this Agreement as any
other Bank and may exercise the same as though it were not
the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include SBC. SBC 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 Company, any of its subsidiaries
and any Person who may do business with or own securities
of the Company or any such subsidiary, all as if SBC were
not the Agent and without any duty to account therefor to
the Banks.
SECTION VII.04. Bank Credit Decision. Each Bank
acknowledges that it has, independently and without
reliance upon the Agent or any other Bank and based on such
documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any
other Bank 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 VII.05. Indemnification. The Banks agree to
indemnify the Agent (to the extent not reimbursed by the
Company), ratably according to their respective L/C
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
Bank 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 Bank
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 Company but for which
the Agent is not reimbursed by the Company.
SECTION VII.06. Successor Agent. The Agent may
resign at any time by giving written notice thereof to the
Banks and the Company and may be removed at any time with
or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the
right to appoint a successor Agent, which, for so long as
no Event of Default has occurred and is continuing, shall
be a Bank and shall be approved by the Company (with such
approval not to be unreasonably withheld or delayed). If no
successor Agent shall have been so appointed by the
Majority Banks and approved by the Company, and shall have
accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the
Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, 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 US$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 Event of
Default, and no event that with the giving of notice or the
passage of time, or both, would constitute an 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 Company, which
consent shall not be unreasonably withheld or delayed.
ARTICLE VIII.
MISCELLANEOUS
SECTION VIII.01. Amendments, Etc. No amendment or
waiver of any provision of this Agreement, nor consent to
any departure by the Company therefrom, shall in any event
be effective unless the same shall be in writing and signed
by the Majority Banks, and then such waiver or consent
shall be effective only in the specific instance and for
the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the
following: (a) reduce any amount payable hereunder, (b)
postpone any date fixed for any payment of any amount
payable hereunder, (c) change the definition of Majority
Banks, which shall be required for the Banks or any of them
to take any action hereunder, (d) amend this Section 8.01,
or (e) amend the Guaranty; provided, further, that no
amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Banks required above
to take such action, affect the rights or duties of the
Agent under this Agreement; and provided, further, that no
amendment shall, unless consented to in writing by the
Guarantor, increase the Stated Amount to an amount greater
than $70,000,000.
SECTION VIII.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 Company, to the
Office of the President, c/o Entergy Power Group, Suite
210, 900 South Shackleford Road, Little Rock, Arkansas
72211 with a copy to the Guarantor, at its address at 639
Loyola Avenue, New Orleans, Louisiana 70113, Attention:
Treasurer; if to a Bank, at its Lending Office specified on
Schedule II hereto; if to any other Bank, at its Lending
Office specified in the Assignment and Acceptance pursuant
to which it became a Bank; and if to the Agent or the
Issuing Bank, at its address at 222 Broadway, New York, New
York 10038, Attention: Client Services, with a copy to
Public Utilities; 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.
Notices and other communications given by the Company to
the Agent shall be deemed given to the Banks.
SECTION VIII.03. No Waiver; Remedies. No failure on
the part of any Bank or the Agent to exercise, and no delay
in exercising, any right hereunder 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 VIII.04. Costs and Expenses; Indemnification.
(a) The Company agrees to pay on demand all costs and
expenses incurred by the Agent and the Issuing Bank in
connection with the preparation, execution, delivery,
syndication administration, modification and amendment of
this Agreement and the other documents to be delivered
hereunder, including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for the Agent
and the Issuing Bank with respect thereto and with respect
to advising the Agent and the Issuing Bank as to its rights
and responsibilities under this Agreement. Any invoices to
the Company with respect to the aforementioned expenses
shall describe such costs and expenses in reasonable
detail. The Company 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, the Issuing Bank
and the Banks in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of,
and the protection of the rights of the Banks under, this
Agreement 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) The Company hereby agrees to indemnify and hold
each Bank, the Agent, the Issuing Bank 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 or any
transaction contemplated thereby, or the use by the
Beneficiary of the proceeds of the Drawing, 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 Company's obligations under this Section
8.04(b) shall survive the repayment of all amounts owing to
the Banks, the Issuing Bank and the Agent under this
Agreement. If and to the extent that the obligations of
the Company under this Section 8.04(b) are unenforceable
for any reason, the Company agrees to make the maximum
contribution to the payment and satisfaction thereof which
is permissible under applicable law.
(c) The Company undertakes to indemnify the Agent,
the Issuing Bank and each Bank against any value added tax
or analogous tax, which any of them may sustain or incur as
a consequence of the occurrence of any Event of Default.
SECTION VIII.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of
Default 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 amounts due hereunder to be due and
payable, the Issuing Bank and each Bank 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 the Issuing Bank or such
Bank to or for the credit or the account of the Company
against any and all of the obligations of the Company now
or hereafter existing under this Agreement held by the
Issuing Bank or such Bank, whether or not the Issuing Bank
or such Bank shall have made any demand under this
Agreement and although such obligations may be unmatured.
The Issuing Bank and each Bank agrees promptly to notify
the Company after any such set-off and application made by
the Issuing Bank or such Bank, provided that the failure to
give such notice shall not affect the validity of such set-
off and application. The rights of the Issuing Bank and
each Bank under this Section 8.05 are in addition to other
rights and remedies (including, without limitation, other
rights of set-off) which the Issuing Bank or such Bank may
have.
SECTION VIII.06. Binding Effect. This Agreement
shall become effective when it shall have been executed by
the Company, the Agent and the Issuing Bank and thereafter
shall be binding upon and inure to the benefit of the
Company, the Agent, the Issuing Bank and each Bank and
their respective successors and assigns, except that the
Company shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Banks.
SECTION VIII.07. Assignments and Participations.
(a) Each Bank may assign to one or more banks or other
entities all or a portion of its rights and obligations
under this Agreement; provided, however, that (i) the
Company 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 (iii) below; (ii) each such assignment shall
be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement; and (iii) 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 a
processing and recordation fee of US$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 Bank hereunder and under all other Facility Documents,
(y) the assignee shall be entitled to the pro rata benefit
of all other Facility Documents and (z) the Bank assignor
thereunder shall, to the extent that rights and obligations
hereunder have been so assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement and
under all other Facility Documents (and, in the case of an
Assignment and Acceptance covering all or the remaining
portion of an assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party
hereto). Notwithstanding anything to the contrary contained
in this Agreement, any Bank at any time may assign all or
any portion of its rights and obligations under this
Agreement to any Affiliate of such Bank.
(b) By executing and delivering an Assignment and
Acceptance, the Bank 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 Bank
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 Bank makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Company or
the performance or observance by the Company 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 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 Bank or any other Bank 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 Bank.
(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 Banks and
principal amount of the Unpaid Drawing owing to each Bank
from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company, the Agent and the
Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection
by the Company or any Bank 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 Bank and an assignee, the Agent
shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit F hereto, (i)
accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii)
give prompt notice thereof to the Company, at which time
(x) such assignee shall become a party to this Agreement as
a Bank and (y) Schedule I shall be deemed modified to
reflect the L/C Commitment of such new Bank and of the
existing Banks.
(e) Each Bank may sell participations to one or more
banks, financial institutions or other entities
("Institutions") in or to all or a portion of its rights
and obligations under this Agreement; provided, however,
that (i) such Bank's obligations under this Agreement shall
remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance
of such obligations, (iii) such Bank shall remain a Bank
for all purposes of this Agreement, (iv) the Company, the
Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's
rights and obligations under this Agreement and (v) the
Company will not be financially liable for any attorney's
fees and the like incurred by any of the Institutions in
connection with its decision to buy participations under
this Agreement.
(f) Any Bank 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 Company furnished to such Bank
by or on behalf of the Company.
(g) If any Bank shall make any demand for payment
under Section 2.06 or 2.09, or if any Bank shall be the
subject of any notification or assertion of illegality
under Section 2.06, then within 30 days after any such
demand (if, but only if, such demanded payment has been
made by the Company) or notification or assertion, the
Company may, with the approval of the Agent (which approval
shall not be unreasonably withheld) and provided that no
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 Bank assign in accordance with this Section 8.07
to one or more assignees designated by the Company and
acceptable to the Majority Banks (provided that, for
purposes of this determination by the Majority Banks, the
Bank making a demand for payment or subject to a
notification or assertion of illegality shall not be
included in the Banks) all (but not less than all) of such
Bank's L/C Commitment and/or its L/C Percentage of the
Unpaid Drawing. If any such assignee designated by the
Company and approved by the Majority Banks shall fail to
consummate such assignment on terms acceptable to such
Bank, or if the Company shall fail to designate any such
assignees acceptable to the Majority Banks for such Bank's
L/C Commitment and/or its L/C Percentage of the Unpaid
Drawing, then such demand by the Company shall become
ineffective; it being understood for purposes hereof that
such assignment shall be conclusively deemed to be on terms
acceptable to such Bank, and such Bank shall be compelled
to consummate such assignment to an Eligible Assignee
designated by the Company, if such Eligible Assignee (A)
shall agree to such assignment by entering into an
Assignment and Acceptance with such Bank and (B) shall
offer compensation to such Bank in an amount equal to all
amounts then owing by the Company to such Bank hereunder
made by the Company to such Bank, whether for principal,
interest, fees, costs or expenses (other than the demanded
payment referred to above and payable by the Company as a
condition to the Company's right to demand such
assignment), or otherwise. Notwithstanding anything set
forth above to the contrary, the Company shall not be
entitled to compel the assignment by any Bank demanding
payment under Section 2.06 if, prior to or promptly
following any such demand by the Company, such Bank shall
have changed or shall change, as the case may be, its
Lending Office so as to eliminate the further incurrence of
such increased cost. In furtherance of the foregoing, any
such Bank demanding payment or giving notice as provided
above agrees to use reasonable efforts to so change its
Lending Office if, to do so, would not result in the
incurrence by such Bank of additional costs or expenses
which it deems material or, in the sole judgment of such
Bank, be inadvisable for regulatory, competitive or
internal management reasons.
(h) Anything in this Section 8.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any
portion of its interests hereunder 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 Bank from its obligations hereunder.
SECTION VIII.08. Governing Law. THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE BANKS AND OF THE
UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION VIII.09. Consent to Jurisdiction; Waiver of
Jury Trial. (a) Any legal action or proceeding with
respect to this Agreement or any other Facility Document
may be brought in the courts of the State of New York or of
the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement,
the Company hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts. The
Company hereby irrevocably designates, appoints and em
powers CT Corporation System with offices on the date
hereof at 1633 Broadway, New York, New York 10019, as its
designee, appointee and agent to receive and accept for and
on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall
cease to be available to act as such, the Company agrees to
designate a new designee, appointee and agent in New York
City on the terms and for the purposes of this provision
satisfactory to the Agent (which approval shall not be
unreasonably withheld). The Company hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over the Company, and agrees not to plead or
claim, in any legal action or proceeding with respect to
this Agreement or any other Facility Document brought in
any of the aforesaid courts, that any such court lacks
jurisdiction over the Company. The Company further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Company at its
address specified in Section 8.02, such service to become
effective 30 days after such mailing. The Company hereby
irrevocably waives any objection to such service of process
and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder that
service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Banks
to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the
Company in any other jurisdiction.
The Company hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement brought in the
courts referred to above and hereby further irrevocably
waives and agrees not to plead or claim in any such court
that such action or proceeding brought in any such court
has been brought in an inconvenient forum.
(b) THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER.
SECTION VIII.10. Invalidity. If, at any time, any
provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
SECTION VIII.11. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
ENTERGY POWER DEVELOPMENT
INTERNATIONAL CORPORATION
By
Name:
Title:
SWISS BANK CORPORATION,
NEW YORK BRANCH, individually,
as Issuing Bank and as Agent
By
Name:
Title:
By
Name:
Title:
<PAGE>
SCHEDULE I
L/C COMMITMENTS
Swiss Bank Corporation,
New York Branch $70,000,000
__________
Total L/C Commitment $70,000,000
SCHEDULE II
BANK ADDRESSES
Bank Lending Office
Swiss Bank Corporation 222 Broadway
New York Branch New York, New York
10038
<PAGE>
FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT
FIRST AMENDMENT (this "First Amendment"), dated
as of March 1, 1996, among ENTERGY POWER DEVELOPMENT
INTERNATIONAL CORPORATION (the "Company"), the various
banks from time to time party hereto (the "Banks"), SWISS
BANK CORPORATION, NEW YORK BRANCH, as issuer of the Letter
of Credit) as defined in the Letter of Credit Agreement
referred to below) (the "Issuing Bank") and SWISS BANK
CORPORATION, New York Branch, as Agent (in such capacity,
the "Agent"), for the Banks. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed
thereto in the Letter of Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Company, the Banks, the Issuing Bank
and the Agent are parties to a Letter of Credit and
Liquidity Agreement dated as of December 28, 1995 (as may
be amended, supplemented, restated or otherwise modified
from time to time, the "Letter of Credit Agreement");
WHEREAS, the Company, the Banks, the Issuing Bank
and the Agent wish to amend the Letter of Credit Agreement
as herein provided;
NOW, THEREFORE, IT IS AGREED:
1. Section 1.01 of the Letter of Credit
Agreement is hereby amended by (x) deleting the words "the
Issuing Bank and" from the defined term "Majority Banks"
appearing therein and (y) inserting the following new
defined term in appropriate alphabetical order:
"Dollar" and the sign "$" shall each mean freely
transferable lawful money of the United States of
America."
2. Section 2.02 of the Letter of Credit
Agreement is hereby amended by adding the following new
sentence at the end thereof: "The Termination Date shall
not be extended as to any Non-Continuing Bank."
3. Section 8.01 of the Letter of Credit
Agreement is hereby deleted in its entirety and the
following Section 8.01 is hereby substituted in lieu
thereof:
"SECTION 8.01 Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the
Guaranty, nor consent to any departure by the Company
or the Guarantor, as the case may be, therefrom, shall
in any event be effective without the prior written
consent of the Company and the Majority Banks and then
such waiver or consent shall be effective only in the
specific instance and for the specific purpose for
which given; provided, however, that no amendment,
waiver or consent shall, without the prior written
consent of all the Banks and the Issuing Bank, do any
of the following: (a) reduce any amount payable
hereunder, (b) postpone any date fixed for any payment
of any amount payable hereunder, (c) change the
definition of Majority Banks, (d) amend this Section
8.01, (e) release in full the Guaranty or amend (i)
the amount of the obligations of the Guarantor under
the Guaranty, (ii) the date on which any obligation of
the Guarantor under the Guaranty is required to be
paid or performed or (iii) Section 8.01(l) of the
Guaranty or (f) amend Section 2.02; provided, further,
that no amendment, waiver or consent shall, without
the prior written consent of the Agent in addition to
the parties required above to take such action, affect
the rights or duties of the Agent under this
Agreement; and provided, further, that no amendment
shall, unless consented to in writing by the
Guarantor, increase the Stated Amount."
4. In order to induce the Banks, the Issuing
Bank and the Agent to enter into this First Amendment, the
Company hereby represents and warrants that there exists no
Default or Event of Default on the First Amendment
Effective Date, after giving effect to this First
Amendment.
5. As used in the Letter of Credit Agreement
(including all Annexes and Exhibits thereto) and all
instruments and documents executed in connection therewith,
the term "Letter of Credit Agreement" on and subsequent to
the First Amendment Effective Date shall mean the Letter of
Credit Agreement as modified hereby.
6. This First Amendment shall be limited
precisely as written and shall not be deemed to (i) be a
consent to any waiver or modification of any other terms
and conditions of the Letter of Credit Agreement or any of
the instruments or documents referred to in the Letter of
Credit Agreement or (ii) prejudice any right or rights
which the Agent, the Issuing Bank or the Banks may now have
or may have in the future under or in connection with the
Letter of Credit Agreement or any of the instruments or
documents referred to in the Letter of Credit Agreement.
Except as expressly amended hereby, the terms and
provisions of the Letter of Credit Agreement shall remain
in full force and effect.
7. This First Amendment (i) may be executed in
any number of counterparts and all such counterparts shall
together constitute one and the same instrument and (ii)
shall be effective on the date (the "First Amendment
Effective Date") when (x) the Company and the Banks shall
have executed and delivered a copy hereof and (y) the
Guarantor and the Agent shall have executed and delivered a
copy of the First Amendment to Guaranty substantially in
the form of Exhibit A annexed hereto, in each case whether
on the same or different copies and shall have delivered
(including by way of facsimile) the same to the Agent at
the Payment Office. Complete sets of counterparts of this
First Amendment shall be lodged with the Company and the
Agent.
8. This First Amendment shall be governed by,
and construed in accordance with, the law of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have
caused this First Amendment to be duly executed as of the
date first above written.
ENTERGY POWER DEVELOPMENT
INTERNATIONAL CORPORATION
By ______________________________
Title:
SWISS BANK CORPORATION,
NEW YORK BRANCH, individually,
as Issuing Bank and as Agent
By ______________________________
Title:
By ______________________________
Title:
EXHIBIT - C-1(n)
GUARANTY
GUARANTY, dated as of December 28, 1995 (as
amended, modified or supplemented from time to time, this
"Guaranty" or "Agreement"), made between ENTERGY
CORPORATION (the "Guarantor") and SWISS BANK CORPORATION,
NEW YORK BRANCH, as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, Entergy Power Development International
Corporation (the "Company"), various banks from time to
time party thereto (the "Banks"), Swiss Bank Corporation,
New York Branch, as issuer of the Letter of Credit
(hereinafter referred to as "SBC"), and the Agent have
entered into a Letter of Credit and Liquidity Agreement,
dated as of December 28, 1995, providing for the issuance
of a letter of credit (the "Letter of Credit") and the
funding of the drawing thereunder for the account of the
Company (as used herein, the term "Letter of Credit
Agreement" means the Letter of Credit Agreement described
above in this paragraph, as the same may be amended, modi
fied, extended, renewed, replaced or supplemented from time
to time, and including any agreement extending the maturity
of, refinancing or restructuring all or any portion of the
unpaid drawing under such agreement or any successor
agreement); and
WHEREAS, it is a condition to the issuance of the
Letter of Credit that the Guarantor shall have executed and
delivered this Guaranty; and
WHEREAS, the Guarantor will obtain direct and
indirect economic, financial and other benefits from the
Letter of Credit issued for the account of the Company
under the Letter of Credit Agreement and hence desires to
execute this Guaranty in order to satisfy the conditions
described in the preceding paragraph and to induce SBC to
issue the Letter of Credit and the Banks to fund the
drawing under the Letter of Credit for the account of the
Company;
NOW, THEREFORE, in consideration of the foregoing
and other benefits accruing to the Guarantor, the receipt
and sufficiency of which are hereby acknowledged, the Guar
antor hereby makes the following representations and warran
ties to each of the Banks, SBC and the Agent (each, a
"Creditor" and collectively, the "Creditors") and hereby
covenants and agrees with each Creditor as follows:
ARTICLE I
Definitions
1.01 As used in this Guaranty, 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):
"Creditors" shall have the meaning specified in
the immediately preceding paragraph.
"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.
"Event of Default" shall have the meaning set
forth in Section 6.01.
"Guaranteed Obligations" shall have the meaning
specified in Section 2.01.
"Guaranty" shall have the meaning specified in
the first paragraph of this Agreement.
"Indemnified Person" shall mean the Banks, the
Agent, SBC and their respective Affiliates and their
respective officers, directors, employees and professional
advisors.
"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.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which the
Guarantor or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"NOPSI" means New Orleans Public Service Inc., a
Louisiana corporation.
"Payment Event" shall mean an Event of Default
(as defined in the Letter of Credit Agreement) under the
Letter of Credit Agreement.
"PBGC" means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its
functions under ERISA.
"Person" shall be construed as a reference to any
person, firm, company, corporation, government, state or
agency of a state or any association or partnership
(whether or not having separate legal personality) or two
or more of the foregoing.
"Potential Event of Default" means any event
which may become (with the passage of time, the giving of
notice, the making of any determination hereunder or any
combination thereof) an Event of Default.
"SEC Order" means the Order dated June 30, 1995
(File No. 70-8105) of the Securities and Exchange
Commission (Release No. 35-26322) under the Public Utility
Holding Company Act of 1935.
Except as otherwise defined herein, terms used
herein and defined in the Letter of Credit Agreement shall
be used herein as therein defined.
ARTICLE II
The Guaranty
2.01 The Guarantor irrevocably and
unconditionally guarantees to the Creditors the full and
prompt payment, no later than the third Business Day after
the giving of notice by the Agent to the Guarantor of an
Event of Default (as defined in the Letter of Credit
Agreement), of all amounts payable (whether at the stated
maturity, by acceleration or otherwise) by the Company
under the Letter of Credit Agreement (all such amounts
being herein collectively called the "Guaranteed
Obligations"). The Guarantor understands, agrees and
confirms that the Creditors may enforce this Guaranty up to
the full amount of the Guaranteed Obligations against the
Guarantor without proceeding against the Company, against
any security for the Guaranteed Obligations, or under any
other guaranty covering all or a portion of the Guaranteed
Obligations. All payments by the Guarantor under this
Guaranty shall be made as provided herein.
2.02 The liability of the Guarantor hereunder is
exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations, and the liability
of the Guarantor hereunder shall not be affected or
impaired by (a) any direction as to application of payment
by the Company or by any other party, (b) any other
continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the
Guaranteed Obligations, (c) any payment on or in reduction
of any such other guaranty or undertaking, or (d) any
payment made to any Creditor on the Guaranteed Obligations
which any Creditor repays to the Company pursuant to court
order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and the
Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such
proceeding.
2.03 The obligations of the Guarantor hereunder
are independent of the obligations of any other guarantor
or the Company, and a separate action or actions may be
brought and prosecuted against the Guarantor whether or not
an action is brought against any other guarantor or the
Company and whether or not any other guarantor of the
Company or the Company be joined in any such action or
actions. The Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement
thereof. Any payment by the Company or other circumstance
which operates to toll any statute of limitations as to the
Company shall operate to toll the statute of limitations as
to the Guarantor.
2.04 Except as otherwise provided in the first
sentence of Section 2.01(a), the Guarantor hereby waives
(to the fullest extent permitted by applicable law) notice
of acceptance of this Guaranty and notice of any liability
to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor
or nonpayment of any such liabilities, suit or taking of
other action by the Agent or any other Creditor against,
and any other notice to, any party liable thereon.
2.05 Any Creditor may at any time and from time
to time without the consent of, or notice to, the
Guarantor, without incurring responsibility to the
Guarantor, without impairing or releasing the obligations
of the Guarantor hereunder, upon or without any terms or
conditions and in whole or in part:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of,
renew, accelerate or alter, any of the Guaranteed
Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the
Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any
offset thereagainst;
(c) exercise or refrain from exercising any
rights against the Company and the Guarantor or others
or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of
the Company to creditors of the Company;
(e) apply any sums by whomsoever paid or howso
ever realized to any liability or liabilities of the
Company to the Creditors regardless of what liabil
ities of the Company remain unpaid;
(f) consent to, or waive any breach of, any act,
omission or default under the Facility Documents or
any of the instruments or agreements referred to there
in, or otherwise amend, modify or supplement the
Facility Documents or any of such other instruments or
agreements; and/or
(g) act or fail to act in any manner referred to
in this Guaranty which may deprive the Guarantor of
its right to subrogation against the Company.
2.06 No invalidity, irregularity or unenforce
ability of all or any part of the Guaranteed Obligations or
of the obligations of the Company under the Letter of
Credit Agreement or of any security therefor shall affect,
impair or be a defense to this Guaranty, and this Guaranty
shall be primary, absolute and unconditional notwith
standing the occurrence of any event or the existence of
any other circumstances which might constitute a legal or
equitable discharge of a surety or guarantor except payment
in full of the Guaranteed Obligations.
2.07 This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or
remedies which any Creditor would otherwise have. No
notice to or demand on the Guarantor in any case shall
entitle the Guarantor to any other further notice or demand
in similar or other circumstances or constitute a waiver of
the rights of any Creditor to any other or further action
in any circumstances without notice or demand. It is not
necessary for any Creditor to inquire into the capacity or
powers of the Guarantor or the officers, directors,
partners or agents acting or purporting to act on its be
half, and any indebtedness made or created in reliance upon
the professed exercise of such powers shall be guaranteed
hereunder.
2.08 (a) The Guarantor waives any right (except
as shall be required by applicable statute or law and
cannot be waived) to require the Creditors to: (i) proceed
against the Company, any other guarantor of the Company or
any other party; (ii) proceed against or exhaust any
security held from the Company, any other guarantor of the
Company or any other party; or (iii) pursue any other
remedy in the Creditors' power whatsoever. The Guarantor
waives (to the fullest extent permitted by applicable law)
any defense based on or arising out of any defense of the
Company, any other guarantor of the Company or any other
party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense
based on or arising out of the unenforceability of the
Guaranteed Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of the
Company other than payment in full of the Guaranteed
Obligations. The Creditors may, at their election, fore
close on any security held by the Agent or the other Credi
tors by one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reason
able (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Creditors
may have against the Guarantor or any other party, or any
security, without affecting or impairing in any way the
liability of the Guarantor hereunder except to the extent
the Guaranteed Obligations and the obligations of the
Company under the Letter of Credit Agreement have been paid
in full. The Guarantor waives any defense arising out of
any such election by the Creditors, even though such
election operates to impair or extinguish any right of reim
bursement or subrogation or other right or remedy of the
Guarantor against the Company or any other party or any
security; and
(b) Except as otherwise provided in the first
sentence of Section 2.01(a), the Guarantor waives (to the
fullest extent permitted by applicable law) all
presentments, demands for performance, protests and
notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional
indebtedness. The Guarantor assumes all responsibility for
being and keeping itself informed of the Company's
financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of
the risks which the Guarantor assumes and incurs hereunder,
and agrees that the Creditors shall have no duty to advise
the Guarantor of information known to them regarding such
circumstances or risks.
ARTICLE III
Representations and Warranties
3.01 The Guarantor represents and warrants that:
(a) the Guarantor 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, except where failure
to so qualify would not materially adversely affect
its condition (financial or otherwise), operations,
business, properties, or prospects;
(b) neither the execution, delivery or perform
ance by the Guarantor of this Guaranty nor compliance
by it with the terms and provisions hereof (i) will
contravene any applicable provision of any law,
statute, rule or regulation, or any order, writ,
injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute
a default under, or result in the creation or
imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the
Guarantor pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement, credit
agreement or any other agreement or other instrument
to which the Guarantor is a party or by which it or
any of its property or assets is bound or to which it
may be subject or (iii) will violate any provision of
the certificate of incorporation or by-laws (or other
governing instrument) of the Guarantor or any of its
Subsidiaries;
(c) the Guarantor has the corporate power and
authority to execute, deliver and carry out the terms
and provisions of this Guaranty and has taken all
necessary corporate action to authorize the execution,
delivery and performance by it of this Guaranty. The
Guarantor has duly executed and delivered this
Guaranty and this Guaranty constitutes the legal,
valid and binding obligation of the Guarantor enforce
able in accordance with its terms, except to the
extent that the enforceability hereof may be limited
by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other
similar laws affecting creditors' rights generally and
by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(d) no order, consent, approval, license, author
ization or validation of, or filing, recording or
registration with, or exemption by, any governmental
or public body or authority, or any subdivision
thereof, is required to authorize or make lawful the
execution, delivery and performance of this Guaranty,
or is required in order to make this Guaranty the
legal, valid and binding obligation of the Guarantor,
except for the SEC Order which is in full force and
effect;
(e) the consolidated financial statements of the
Guarantor and its Subsidiaries as of December 31, 1994
and for the year ended on such date, as set forth in
the Guarantor'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 L.L.P.,
and the consolidated financial statements of the
Guarantor and its Subsidiaries as of September 30,
1995, and for the nine-month period ended on such date
set forth in the Guarantor'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 the Agent, fairly present (subject, in
the case of such statements dated September 30, 1995,
to year-end adjustments) the consolidated financial
condition of the Guarantor and its Subsidiaries as at
such dates and the consolidated results of the
operations of the Guarantor and its Subsidiaries for
the periods ended on such dates, in accordance with
generally accepted accounting principles consistently
applied. Except as disclosed in the Guarantor's
Quarterly Report on Form 10-Q for the fiscal period
ended September 30, 1995, since December 31, 1994,
there has been no material adverse change in the
financial condition or operations of the Guarantor;
(f) except as disclosed in the Guarantor's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, and/or the Guarantor's Quarterly
Report on Form 10-Q for the period ended September 30,
1995, there is no pending or threatened action or
proceeding affecting the Guarantor 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
Guarantor or on its ability to perform its obligations
under this Guaranty, or that purports to affect the
legality, validity, binding effect or enforceability
of this Guaranty. 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) it has not taken any corporate action nor
have any other steps been taken or legal proceedings
been started or (to the best of the Guarantor's
knowledge and belief) threatened against the Guarantor
for its winding-up, dissolution, administration or re-
organization or for the appointment of a receiver,
administrator, trustee or similar officer of it or of
any or all of its assets or revenues;
(h) no event has occurred and is continuing that
constitutes a Payment Event or an Event of Default or
that would constitute a Payment Event or an Event of
Default but for the requirement that notice be given
or time elapse or both;
(i) the Guarantor is not engaged in the business
of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regula
tion 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 Guarantor and its Subsidiaries
subject to the restrictions of Sections 4(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);
(j) the Guarantor 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 Guarantor is a "holding company" as that
term is defined in, and is registered under, the
Public Utility Holding Company Act of 1935;
(k) 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 Guarantor and
its Subsidiaries, taken as a whole;
(l) 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 Agent, 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; and
(m) the Guarantor has not incurred, and does not
reasonably expect to incur, any withdrawal liability
under ERISA to any Multiemployer Plan.
ARTICLE IV
Affirmative Covenants of the Guarantor
4.01 The Guarantor shall, unless the Majority
Banks consent in writing, so long as the Letter of Credit
is outstanding or any amount due under the Letter of Credit
Agreement or any amount payable by the Guarantor hereunder
shall remain unpaid:
(a) keep proper books of record and account, all
in accordance with generally accepted accounting
principles;
(b) except as otherwise permitted under Section
5.01(c) hereof, 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;
(c) 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;
(d) 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;
(e) 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 Bank,
through the Agent, may reasonably request;
(f) 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; and
(g) furnish to the Banks:
(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
Guarantor, (A) consolidated balance sheets of the
Guarantor and its Subsidiaries as of the end of
such quarter and (B) consolidated statements of
income and retained earnings of the Guarantor 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 Guarantor 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 Guarantor, a copy of the
annual report for such year for the Guarantor and
its Subsidiaries, containing consolidated
financial statements for such year certified
without limitation as to scope and without any
qualification other than such qualification as
shall not indicate an inability on the part of
the Guarantor to perform its obligations
hereunder by Coopers & Lybrand L.L.P. (or such
other nationally recognized public accounting
firm as the Agent may approve) and certified by a
duly authorized officer of the Guarantor 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
Guarantor and within 120 days after the end of
the fiscal year of the Guarantor, a certificate
of the duly authorized officer of the Guarantor,
stating that no Payment Event or Event of Default
hereunder has occurred and is continuing, or if a
Payment Event or Event of Default hereunder has
occurred and is continuing, a statement setting
forth details of such Payment Event or Event of
Default, as the case may be, and the action that
the Guarantor or the Company, as the case may be,
has taken and proposes to take with respect
thereto;
(iv) as soon as possible and in any
event within five days after the Guarantor has
knowledge of the occurrence of each Payment
Event, Event of Default and each event that, with
the giving of notice or lapse of time or both,
would constitute a Payment Event or an Event of
Default, continuing on the date of such
statement, a statement of the duly authorized
officer of the Guarantor setting forth details of
such Payment Event, Event of Default or event, as
the case may be, and the actions that the
Guarantor or the Company, as the case may be, has
taken and proposes to take with respect thereto;
(v) as soon as possible and in any
event within five days after the Guarantor
receives notice of the commencement of any
litigation against, or any arbitration,
administrative, governmental or regulatory
proceeding involving, the Guarantor or any of its
Subsidiaries, that, if adversely determined,
could reasonably be expected to have a material
adverse effect on the condition (financial or
otherwise), operations, business, properties or
prospects of the Guarantor, notice of such litiga
tion describing in reasonable detail the facts
and circumstances concerning such litigation and
the Guarantor's or such Subsidiary's proposed
actions in connection therewith;
(vi) promptly after the sending or
filing thereof, copies of all reports that the
Guarantor sends to any of its securities holders,
and copies of all reports and registration
statements which the Guarantor files with the SEC
or any national securities exchange pursuant to
the Securities Act of 1933, as amended or the
Securities Exchange Act of 1934, as amended;
(vii) as soon as possible and in any
event (A) within 30 days after the Guarantor
knows or has reason to know that any ERISA Termi
nation 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 Guarantor 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 Guarantor describing such ERISA
Termination Event and the action, if any, that
the Guarantor proposes to take with respect
thereto;
(viii) promptly and in any event
within two Business Days after receipt thereof by
the Guarantor from the PBGC, copies of each
notice received by the Guarantor 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 Guarantor from a Multiemployer Plan
sponsor, a copy of each notice received by the
Guarantor 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 Guarantor or any of its
Subsidiaries as any Bank through the Agent may
from time to time reasonably request.
ARTICLE V.
Negative Covenants of the Guarantor
5.01 The Guarantor shall not without the prior
written consent of the Majority Lenders (such prior written
consent not to be unreasonably withheld or delayed), so
long as the Letter of Credit is outstanding or any amount
due under the Letter of Credit Agreement or any amount
payable by the Guarantor hereunder shall remain unpaid:
(a) 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 but excluding any shares of any class of equity
security of the Company and any of its direct or
indirect Subsidiaries), 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 Guarantor 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 Guarantor; (v)
purchase money mortgages or other liens or purchase
money security interests upon or in any property
acquired or held by the Guarantor 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 Guarantor to the Lenders hereunder
are simultaneously and ratably secured by such Lien
pursuant to documentation satisfactory to the Lenders;
(b) create, incur, assume or suffer to exist, any
Debt of the Guarantor other than:
(i) Debt under this Guaranty;
(ii) Debt under the Credit
Agreement, dated as of October 10, 1995, between
Entergy Corporation as borrower and Citibank, N.A.
as agent and under the Notes issued thereunder;
(_)(iii) Debt secured by Liens permitted
under Section 5.01(a);
(_)(iv) Debt as lessee under leases
which shall have been, or should be, in accordance
with generally accepted accounting principles,
recorded as capital leases;
(v) Debt incurred in the form of
endorsements in the normal course of business;
(vi) Guaranty Obligations (excluding
Guaranty Obligations described in clauses (i) and
(vii) hereof) and other Debt not to exceed
$800,000,000 minus the Stated Amount of the Letter
of Credit from time to time (plus the amount of any
partial prepayments of the Unpaid Drawing pursuant
to the Letter of Credit Agreement) in the aggregate
at any one time; and
(vii) Guaranty Obligations not
otherwise permitted hereunder, but disclosed on
Schedule I hereto.
(c) merge with or into or consolidate with or into
any other person, except that the Guarantor may merge
with any other Person, provided that, immediately after
giving effect to any such merger, (i) the Guarantor 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
Guarantor's obligations hereunder in a manner
acceptable to the Majority Banks, 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 Payment Event or an Event
of Default or would constitute a Payment Event or an
Event of Default but for the requirement that notice be
given or time elapse or both and (iii) the Guarantor
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; and
(d) 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 Guarantor or a Significant Subsidiary.
ARTICLE VI
Events of Default
6.01 An Event of Default hereunder shall occur if:
(a) the Guarantor fails to pay any sum due from it
hereunder at the time, in the currency and in the
manner specified herein; or
(b) any representation or statement made by the
Guarantor in this Agreement or in any notice or other
document, certificate or statement delivered by it
pursuant hereto or in connection herewith is or proves
to have been incorrect or misleading in any material
respect when made; or
(c) the Guarantor shall fail to perform or observe
(i) any term, covenant or agreement contained in
Sections 4.01 or 5.01 or (ii) any other term, covenant
or agreement contained in this Agreement on its part to
be performed or observed and the failure to perform or
observe any such term, covenant or agreement in clauses
(i) or (ii) shall remain unremedied for 30 days after
written notice thereof shall have been given to the
Guarantor by the Agent or any of the Banks; or
(d) the Guarantor shall fail to pay any principal
of or premium or interest on any Debt of the Guarantor
that is outstanding in a principal amount in excess of
$50,000,000 in the aggregate 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 Guarantor, 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
Guarantor, 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, 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 Guarantor,
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
Guarantor 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 Guarantor or any
ERISA Affiliate of the Guarantor 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 Guarantor or any ERISA
Affiliate of the Guarantor is, shall have been or will
be terminated or the subject of termination proceedings
under ERISA, or (iii) the Guarantor or any ERISA
Affiliate of the Guarantor 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 Guarantor or any ERISA
Affiliate of the Guarantor 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).
(h) the Guarantor repudiates or threatens to
repudiate this Guaranty; or
(i) at any time it is or becomes unlawful for the
Guarantor to perform or comply with any or all of its
obligations hereunder or any of the obligations of the
Guarantor hereunder are not or cease to be legal, valid
and binding and, on demand from the Agent, payment of
all amounts owing under the Letter of Credit Agreement
and this Guaranty shall not have been made in full;
ARTICLE VII
Withholding Taxes
7.01 All payments by the Guarantor under this
Guaranty shall be made free and clear of, and without
deduction or withholding for or on account of, any taxes,
fees and charges of any nature whatsoever ("Taxes"), unless
such deduction or withholding is required by law. If any
such deduction or withholding shall be required by law,
then the Guarantor shall pay such additional amounts as may
be necessary in order that the net amount received by the
applicable Indemnified Person, after such deduction or
withholding, shall be equal to the full amount that such
Indemnified Person would have received had no such Taxes
been imposed.
Any amounts deducted or withheld by Guarantor for or
on account of Taxes shall be paid over to the government or
taxing authority imposing such Taxes on a timely basis, and
the Guarantor shall provide the applicable Indemnified
Person as soon as practicable with such tax receipts or
other official documentation with respect to the payment of
such Taxes as may be available.
ARTICLE VIII
Miscellaneous
8.01 (a) 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 Guarantor, at its address at 639
Loyola Avenue, New Orleans, LA 70113, Attention: Treasurer;
if to any Bank, at its Lending Office specified in Section
8.07 of the Letter of Credit Agreement; and if to the
Agent, at its address at 222 Broadway, New York, New York
10038, Attention: Client Services, with a copy to Public
Utilities; 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. Notices and other communications given by
the Guarantor to the Agent shall be deemed given to the
Banks.
(b) No failure on the part of any Bank or the
Agent to exercise, and no delay in exercising, any right
hereunder or under any other Facility Document 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 or in equity.
(c) The Guarantor 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
Guaranty, 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 Guarantor with respect to the
aforementioned expenses shall describe such costs and
expenses in reasonable detail. The Guarantor 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 Banks in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of,
and the protection of the rights of the Banks under, this
Guaranty, including, without limitation, reasonable counsel
fees and expenses in connection with the enforcement of
rights under this Section 8.01(c).
(d) The Guarantor hereby agrees to indemnify and
hold each 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 Guaranty, 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
Guarantor's obligations under this Section 8.01(d) shall
survive the repayment of all amounts owing to the Banks and
the Agent under this Guaranty. If and to the extent that
the obligations of the Guarantor under this Section 8.01(d)
are unenforceable for any reason, the Guarantor agrees to
make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable
law.
(e) The Guarantor undertakes to indemnify the
Agent and each Bank against any value added tax or
analogous tax, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default,
Payment Event or any Potential Event of Default hereunder.
(f) Upon the occurrence and during the continuance
of any Event of Default, each Bank 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 Bank to or for the credit or the account of the
Guarantor against any and all of the obligations of the
Guarantor now or hereafter existing under this Guaranty,
whether or not such Bank shall have made any demand under
this Guaranty and although such obligations may be
unmatured. Each Bank agrees promptly to notify the
Guarantor after any such set-off and application made by
such Bank, provided that the failure to give such notice
shall not affect the validity of such set-off and
application. The rights of each Bank under this Section
8.01(f) are in addition to other rights and remedies
(including, without limitation, other rights of set-off)
which such Bank may have.
(g) No failure to exercise, nor any delay in
exercising, on the part of the Agent and the Bank or either
of them, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise
thereof or the exercise of any other right or remedy. The
rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
(h) This Guaranty shall become effective when it
shall have been executed by the Guarantor and the Agent,
and thereafter shall be binding upon and inure to the
benefit of the Guarantor, the Agent and each Bank and their
respective successors and assigns, provided that except as
contemplated by the provisions of Section 5.01(c), the
Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Majority Banks.
(i) All payments required to be made by the
Guarantor hereunder shall be calculated without reference
to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of any
set-off or counterclaim.
(j) The Guarantor authorizes to the fullest extent
permitted by applicable law any Bank to apply any credit
balance to which the Guarantor is entitled on any account
of the Guarantor with that Bank in satisfaction of any sum
due and payable from the Guarantor to such Bank hereunder
but unpaid; for this purpose, the Agent is authorized to
purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect
such application. No Bank shall be obliged to exercise any
right given to it by this Section 8.01(j). In the event of
the Bank exercising any right given to it under this
Section 8.01(j), such Bank shall immediately notify the
Agent.
(k) If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby.
(l) Any provision of this Guaranty may be amended
only if the Guarantor and the Majority Lenders so agree in
writing. Any Event of Default or breach of any provision
of this Agreement and the Guaranty may be waived before or
after it occurs only if the Majority Lenders so agree in
writing but an amendment or waiver which changes or relates
to: (a) the amount of the indebtedness of the Guarantor
hereunder, (b) the date on which any sum becomes payable by
the Guarantor hereunder, or (c) this Section 8.01(l), shall
require the agreement of each Bank.
(m) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS
OF THE CREDITORS AND THE UNDERSIGNED HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
(n) Any legal action or proceeding with respect to
this Guaranty may be brought in the courts of the State of
New York or of the United States of America for the
Southern District of New York, and, by execution and deli
very of this Guaranty, the Guarantor hereby irrevocably
accepts for itself and in respect of its property,
generally and unconditionally, the exclusive jurisdiction
of the aforesaid courts. The Guarantor hereby irrevocably
designates, appoints and empowers CT Corporation System
with offices on the date hereof at 1633 Broadway, New York,
New York 10019, as its designee, appointee and agent to
receive and accept for and on its behalf, and in respect of
its property, service of any and all legal process, sum
mons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee,
appointee and agent shall cease to be available to act as
such, the Guarantor agrees to designate a new designee,
appointee and agent in New York City on the terms and for
the purposes of this provision satisfactory to the Agent
which approval shall not be unreasonably withheld. The
Guarantor hereby further irrevocably waives any claim that
any such courts lack jurisdiction over the Guarantor, and
agrees not to plead or claim, in any legal action or
proceeding with respect to this Guaranty brought in any of
the aforesaid courts, that any such court lacks
jurisdiction over the Guarantor. The Guarantor further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Guarantor at its
address set forth opposite its signature below, such
service to become effective 30 days after such mailing.
The Guarantor hereby irrevocably waives any objection to
such service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding
commenced hereunder that service of process was in any way
invalid or ineffective. Nothing herein shall affect the
right of any of the Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other
jurisdiction.
The Guarantor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out
of or in connection with this Guaranty brought in the
courts referred to above and hereby further irrevocably
waives and agrees not to plead or claim in any such court
that such action or proceeding brought in any such court
has been brought in an inconvenient forum.
(o) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY,
THE OTHER FACILITY DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
(p) This Guaranty 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.
(q) This Guaranty shall be binding upon the
Guarantor and its successors and assigns and shall inure to
the benefit of the Creditors and their successors and
assigns.
(r) If claim is ever made upon any Creditor for re
payment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of
any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with
any such claimant (including the Guarantor), then and in
such event the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding
upon the Guarantor, notwithstanding any revocation hereof
or the cancellation of any instrument evidencing any
liability of the Company, and the Guarantor shall be and
remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such
payee.
(s) Any acknowledgment or new promise, whether by
payment of principal or interest or otherwise and whether
by the Company or other Persons liable in respect of the
Guaranteed Obligations (including the Guarantor), with
respect to any of the Guaranteed Obligations shall, if the
statute of limitations in favor of the Guarantor against
any Creditor shall have commenced to run, toll the running
of such statute of limitations, and if the period of such
statute of limitations shall have expired, prevent the
operation of such statute of limitations.
(t) It is the desire and intent of the Guarantor and
the Creditors that this Guaranty shall be enforced against
the Guarantor to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in
which enforcement is sought. If, however, and to the
extent that the obligations of the Guarantor under this
Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without
limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the
amount of the Guaranteed Obligations of the Guarantor shall
be deemed to be reduced and the Guarantor shall pay the
maximum amount of the Guaranteed Obligations which would be
permissible under applicable law.
AS WITNESS the hands of the duly authorized
representatives of the parties hereto the day and year
first before written.
ENTERGY CORPORATION
By
Title:
Name:
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Agent
By
Title:
Name:
By
Title:
Name:
<PAGE>
SCHEDULE I
GUARANTY OBLIGATIONS
EXHIBIT A
FIRST AMENDMENT TO GUARANTY
FIRST AMENDMENT (this "First Amendment"), dated
as of March 1, 1996, between ENTERGY CORPORATION (the
"Guarantor") and SWISS BANK CORPORATION, NEW YORK BRANCH,
as agent (the "Agent"). Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed
thereto in the Guaranty referred to below.
W I T N E S S E T H :
WHEREAS, the Guarantor and the Agent are parties
to a Guaranty dated as of December 28, 1995 (as may be
amended, supplemented, restated or otherwise modified from
time to time, the "Guaranty") pursuant to which the
Guarantor has agreed to guarantee certain of the
obligations of its subsidiary, Entergy Power Development
International Corporation (the "Company") under the Letter
of Credit and Liquidity Agreement dated as of December 28,
1996 among the Company, various banks from time to time
party thereto, Swiss Bank Corporation, as issuer of the
Letter of Credit and the Agent (as may be amended,
supplemented, restated or otherwise modified from time to
time, the "Letter of Credit Agreement");
WHEREAS, the Company, the Banks, the Issuing Bank
and the Agent wish to amend the Letter of Credit Agreement
as provided in the First Amendment to Letter of Credit
Agreement of event date herewith (the "First Amendment to
Letter of Credit Agreement");
WHEREAS, it is a condition precedent to the effec
tiveness of the First Amendment to Letter of Credit
Agreement that the Guarantor and the Agent shall have
executed and delivered this First Amendment;
NOW, THEREFORE, in order to satisfy the condition
precedent described in the immediately preceding paragraph,
it is agreed as follows:
1. Section 2.04 of the Guaranty is hereby
amended by deleting the reference to "Section 2.01(a)"
contained therein and substituting in lieu thereof a
reference to "Section 2.01".
2. Section 2.08(b) of the Guaranty is hereby
amended by deleting the reference to "Section 2.01(a)"
contained therein and substituting in lieu thereof a
reference to "Section 2.01".
3. Section 8.01 of the Guaranty is hereby
amended by deleting clauses (h) and (l) thereof in their
entirety and by substituting in lieu thereof the following
new clauses (h) and (l) in appropriate order:
"(h) This Guaranty shall become effective when
it shall have been executed by the Guarantor and the
Agent, and thereafter shall be binding upon and inure
to the benefit of the Guarantor, the Agent, the
Issuing Bank and each Bank and their respective
permitted successors and assigns, provided that except
as contemplated by the provisions of Section 5.01(c),
the Guarantor shall not have the right to assign this
Guaranty or any interest herein without the prior
written consent of the Banks and the Issuing Bank."
"(l) No amendment or waiver of any provision of
this Guaranty, nor consent to any departure by the
Guarantor therefrom, shall in any event be effective
without the prior written consent of the Majority
Banks and then such waiver or consent shall be
effective only in the specific instance and for the
specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, without
the prior written consent of all the Banks and the
Issuing Bank, do any of the following: (a) amend the
amount of the obligations of the Guarantor hereunder,
(b) amend the date on which any obligation of the
Guarantor hereunder is required to be paid or
performed, (c) change the definition of Majority
Banks, (d) release in full this Guaranty or (e) amend
this Section 8.01(l) or Section 2.02 of the Letter of
Credit Agreement; provided, further, that no
amendment, waiver or consent shall, without the prior
written consent of the Agent in addition to the
parties required above to take such action, affect the
rights or duties of the Agent under this Guaranty; and
provided, further, that no amendment of this Guaranaty
shall be effective unless agreed to in writing by the
Guarantor."
4. In order to induce the Agent to enter into
this First Amendment, the Guarantor hereby represents and
warrants that there exists no Event of Default or event,
act or condition which with notice or lapse of time, or
both, would constitute an Event of Default on the First
Amendment Effective Date, after giving effect to this First
Amendment.
5. As used in the Guaranty (including all
Annexes and Exhibits thereto) and all instruments and
documents executed in connection therewith, the term
"Guaranty" on and subsequent to the First Amendment
Effective Date shall mean the Guaranty as modified hereby.
6. This First Amendment shall be limited
precisely as written and shall not be deemed to (i) be a
consent to any waiver or modification of any other terms
and conditions of the Guaranty or any of the instruments or
documents referred to in the Guaranty or (ii) prejudice any
right or rights which the Agent, the Issuing Bank or the
Banks may now have or may have in the future under or in
connection with the Guaranty or any of the instruments or
documents referred to in the Guaranty. Except as expressly
amended hereby, the terms and provisions of the Guaranty
shall remain in full force and effect.
7. This First Amendment (i) may be executed in
any number of counterparts and all such counterparts shall
together constitute one and the same instrument and (ii)
shall be effective on the date (the "First Amendment
Effective Date") when the Guarantor and the Agent shall
have executed and delivered a copy hereof (whether on the
same or different copies) and shall have delivered
(including by way of facsimile) the same to the Agent at
the Payment Office. Complete sets of counterparts of this
First Amendment shall be lodged with the Guarantor and the
Agent.
8. This First Amendment shall be governed by,
and construed in accordance with, the law of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have
caused this First Amendment to be duly executed as of the
date first above written.
ENTERGY CORPORATION
By______________________________
Title:
SWISS BANK CORPORATION,
NEW YORK BRANCH, as Agent
By______________________________
Title:
By______________________________
Title:
Exhibit C-1(p)
FACILITY AGREEMENT made at Melbourne on 5 January 1996
BETWEEN CITIPOWER LIMITED, ACN 064 651 056 incorporated in
Victoria and having its registered office at Level
15, 624 Bourke Street, Melbourne, Victoria, 3000
(the "Borrower")
AND THE BANKS AND FINANCIAL INSTITUTIONS
SPECIFIED in Schedule 1 (the "Banks")
AND COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123
124, of 14th Floor, 385 Bourke Street, Melbourne,
Victoria, 3000 as facility agent for the Banks (in
this capacity, the initial "Facility Agent")
AND BANK OF AMERICA NT & SA ARBN 064 874 531 of
Level 18, 135 King Street, Sydney, NSW 2000 (the
"Arranger")
AND COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123
124, of 14th Floor, 385 Bourke Street, Melbourne,
Victoria, 3000 as security trustee (in this
capacity, the initial "Security Trustee")
RECITAL
A. This Agreement sets out the terms and conditions upon
which the Banks have agreed to make the Facilities
available to the Borrower.
B. The Borrower enters into this Agreement and the
Transaction Documents as trustee of The CitiPower Trust
and in exercise of the powers conferred on it by the
Trust Deed.
C. This Agreement and each Transaction Document is a
Transaction Document (as defined in the Security Trust
Deed) for the purposes of the Security Trust Deed and the
Charge.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1 Definitions
In this Agreement (unless the context otherwise
requires):
"Accession Agreement" means each agreement in the form of
Schedule 12, entered into in accordance with clause
13.5(b).
"Accumulation Account" has the meaning given in clause
11.4.
"Adjusted Facility Commitment means, at any time, the
Facility Commitments for the Medium Term Facilities minus
the Face Amount of the Support Letter of Credit at that
time.
"Adjusted Interest Expense" means, for any period for
which Historical DSCR is to be calculated, the Adjusted
Interest Expense calculated in accordance with the
following formula:
where:
AI = Adjusted Interest Expense.
I = Actual Interest Expense.
G1 = The ratio (expressed as a
percentage) of Medium Term Outstandings to
Total Capitalisation at the end of the
previous period or 70% (whichever is
higher).
G2 = The ratio (expressed as a
percentage) of Medium Term Outstandings to
Total Capitalisation at the end of the
current period or 70% (whichever is
higher).
"Adjusted Medium Term Outstandings" means, at any time,
the aggregate of the Medium Term Outstandings at that
time minus the Face Amount of the Support Letter of
Credit (or if the Support Letter of Credit is denominated
in US$, the Equivalent in Dollars of that Face Amount as
at the date the relevant Support Letter of Credit was
issued).
"Advances" means the Medium Term Advances and the Working
Capital Advances (each an "Advance").
"Aggregate Commitments" means, in relation to a Bank and
at any time, the aggregate of that Bank's Commitments at
that time.
"Anticipated Operating Cash Flows" means, as at any date
upon which calculated, the anticipated Operating Cash
Flows for the period of 15 years commencing on the first
day of the financial year of The CitiPower Trust in which
the calculation is made, calculated in accordance with
the Model and verified or determined in accordance with
clause 22.5.
"Appropriately Rated Bank" means an international bank or
financial institution which has, or whose obligations in
respect of its Borrowings have been assigned a credit
rating by Standard & Poor's Ratings Group or Moody's
Investors Service:
(a) in the case of long term obligations, not
less than "AA-" or "Aa3" (as the case may be); and
(b) in the case of short term obligations, "A-1"
or "P1" (as the case may be),
or such other lesser credit rating as the Facility Agent
acting on the instructions of the Majority Banks may
agree.
"Approved Auditors" means an independent firm of
chartered accountants of international standing from time
to time selected by the Borrower.
"Approved ISDA Document" means a Master Agreement (Multi-
currency - Cross Border - published by International Swap
Dealers Association Inc. (1992 edition)) incorporating
such terms and amendments as are agreed between the
Facility Agent, the Arranger and the Borrower.
"Authorised Investments" means investments which are at
their date of acquisition:
(a) cash;
(b) bonds, debentures, stock, treasury bills,
notes or any other security issued by the
Commonwealth of Australia or any government of any
State or Territory of the Commonwealth of
Australia;
(c) debentures or stock of any Government Body
(other than a government) of the Commonwealth of
Australia or of any State or Territory of the
Commonwealth of Australia where the repayment of
the principal secured and the interest payable
thereon is guaranteed by the Commonwealth or the
relevant State or Territory;
(d) deposits with, or the acquisition of
certificates of deposit (whether negotiable,
convertible or otherwise), issued by, an
Appropriately Rated Bank;
(e) bills of exchange which at the time of
acquisition have a remaining term to maturity of
not more than 200 days, accepted or endorsed by an
Appropriately Rated Bank; and
(f) commercial paper or promissory notes rated at
least "A-1" or "P1" by Standard & Poor's Ratings
Group or Moody's Investors Service and having a
maturity of less than one year:
"Authorised Officer" means:
(a) in relation to the Borrower, any person from
time to time nominated as an Authorised Officer of
the Borrower by notice to the Facility Agent
signed by any two members of the Management
Committee or one member of the Management
Committee and a secretary or assistant secretary
of the Borrower, such notice to include a specimen
signature of each person so appointed; and
(b) in relation to the Arranger, the Facility
Agent or any Bank, and anything to be done by any
of them under any Transaction Document, any
director, secretary or other officer whose title
includes the word "President", "Manager" or
"Executive", or any other person who is duly
authorised by the Arranger, the Facility Agent or
that Bank to do that thing.
"Availability Period" means:
(a) in relation to the Medium Term Facilities,
the period commencing on the date of this
Agreement and ending on the date which is 30 days
before the relevant Expiry Date; and
(b) in relation to the Working Capital Facility,
the period commencing on the date of this
Agreement and ending on the relevant Expiry Date;
and
(c) in relation to the VPX Guarantee Facility,
the period commencing on the date of this
Agreement and ending on the relevant Expiry Date.
"Bank" means each of the following:
(a) each bank or financial institution whose name
is set out in Schedule 1;
(b) each bank or financial institution which
assumes rights and obligations pursuant to a
Substitution Certificate.
"Beneficiary" means, in relation to a VPX Guarantee, the
person in whose favour that VPX Guarantee is issued.
"Bill" means a bill of exchange within the meaning given
to the expression "bill of exchange" in the Bills of
Exchange Act 1909 of the Commonwealth of Australia, but
does not include a cheque or payment order, and any
reference to the drawing, acceptance, indorsement or
other dealing of or with a Bill refers to a drawing,
acceptance, indorsement or other dealing within the
meaning of that Act.
"Bill Facility" means the credit facility for the
acceptance and discounting of Bills agreed to be made
available by the Medium Term Banks pursuant to clause
2.1(b).
"Bill Rate" means, in relation to an Advance or a
Drawdown and the Interest Period relating thereto:
(a) if the Interest Period is a period equal or
approximately equal to a period for which rates
are displayed on page "BBSY" of the Reuters
Monitor System, the rate (expressed as a
percentage per annum to four decimal places) which
is the bid rate shown at approximately 10.15 a.m.
(Sydney time) on that page on the first day of
that period (or if that Interest Period is subject
to marginal adjustment, for a term equal or
approximately equal to the duration of the
Interest Period prior to such adjustment): or
(b) if such rate is not available for any reason,
or the Interest Period is not equal or
approximately equal to a period for which rates
are displayed on page "BBSY" of the Reuters
Monitor System, the arithmetic mean, (rounded
upwards, if necessary, to four decimal places) of
the rates quoted to the Facility Agent by the
Reference Banks at or about 10:00 a.m. (Melbourne
time) on the first day of that Interest Period
(disregarding the highest and lowest rates quotes)
for the purchaser of a Bill accepted by an
Australian Bank having a face amount equal to the
amount of the Advance or Drawdown and a tenor
equal or approximately equal to that Interest
Period (or, if that Interest Period is subject to
marginal adjustment, for a term equal or
approximately equal to the duration of that
Interest Period prior to such adjustment); or
(c) if fewer than 2 Reference Banks are willing
to provide quotes, the rate reasonably determined
by the Facility Agent to be the appropriate
equivalent rate having regard to prevailing market
conditions.
"Borrowings" means any money borrowed or raised
(including rentals under financial leases) and
capitalised interest thereon; any liability under any
bill, debenture, note or other security (but excluding,
in the case of any such instrument issued at a discount,
the discount amount to the extent not due and payable and
unpaid); any liability in respect of the acquisition cost
of assets or services to the extent payable after the
time of acquisition or possession thereof (excluding
trade credit on normal commercial terms); and any
guarantee or other assurance against financial loss in
respect of any money borrowed or raised, interest or
liabilities.
"Business Day" means a day on which banks and financial
institutions are open for business generally in both
Melbourne and Sydney.
"Cash Cover Payment" means each payment made by the
Borrower to the Facility Agent or a Medium Term Bank
under clauses 7.7(c), 23.3(a) or 23.3(b)(ii).
"Charge" means the Deed of Charge dated on or about the
date of this Agreement executed by the Borrower in favour
of the Security Trustee.
"Commitments" means the Medium Term Commitments, the
Working Capital Commitments, the VPX Guarantee
Commitments and, for the purpose only of clause 25.7, the
Treasury Commitments.
"Completion" has the same meaning as in the Share Sale
Agreement.
"Completion Date" has the same meaning as in the Share
Sale Agreement.
"Consolidated Net Worth" means, at any time, the total at
that time of the paid up capital, retained profits and
reserves of the Borrower plus Subordinated Debt minus
minority interests and minus revaluation reserves (other
than revaluations of assets made as of Completion within
one year after Completion).
"Controller" has the meaning given in section 9 of the
Corporations Law.
"Declaration of Trust" means the declaration of trust
dated on or about the date of this agreement between the
Borrower and the Unitholders.
"Deed of Covenant" means the deed so entitled dated on or
about the date of this Agreement made between the
Security Trustee, the Facility Agent, the Borrower, the
Honourable Alan Robert Stockdale for and on behalf of the
Crown in right of the State of Victoria and the
Unitholders.
"Disclosure Letter" means the letter dated on or about
the date of this Agreement identified as such from the
Borrower to the Facility Agent on behalf of the Banks,
making disclosure of various matters for the purposes of
clause 20, and accepted by the Facility Agent.
"Distribution" means:
(a) a payment of interest or repayments of
principal of or in respect of Subordinated Debt;
or
(b) a distribution of funds of The CitiPower
Trust by the Borrower to the Unitholders, whether
in cash or by way of redemption in whole or in
part of the rights of the relevant Unitholders in
respect of their Units, in each case under and in
accordance with the Trust Deed.
"Distribution Licence" means the distribution licence
issued to the Borrower by the Office of the Regulator-
General pursuant to the Electricity Industry Act 1993
(Vic) issued on 3 October 1994 as varied, replaced or
renewed from time to time.
"Dollar" or "$" means the lawful currency for the time
being of the Commonwealth of Australia.
"Due Diligence Team Member" means each person named in
Schedule 10.
"Drawdown" means the acceptance and the discounting or
procuring of the discount of Bills under the Bill
Facility, whether on initial drawdown or roll-over, and
the payment to the Borrower of the discounted proceeds of
the Bills.
"Encumbrance" means any mortgage, charge, pledge, lien,
encumbrance, assignment by way of security,
hypothecation, security interest, title retention,
preferential right, trust arrangement, contractual right
of set-off or any other security agreement or arrangement
in favour of any person.
"Entergy" means Entergy Corporation.
"Entergy Letter of Comfort" means the letter of comfort
issued or to be issued by Entergy Power Development
International Corporation to the Facility Agent on behalf
of the Banks as to compliance by the Unitholders with the
Unitholders' Side Letter.
"Entergy Undertaking" means each undertaking from time to
time issued by Entergy to the Facility Agent on behalf of
the Medium Term Banks under clause 9.
"Environmental Law" means all applicable laws and
regulations concerning the protection of human health or
the environment or the conditions of the work place or
the generation, transportation, storage, treatment or
disposal of dangerous substances.
"Environmental Licence" means any permit, licence,
authorisation, consent or other approval required by any
Environmental Law.
"Equivalent" in any currency of an amount denominated in
another currency, on any date, means the amount of the
first such currency which the Facility Agent could
purchase with such amount of such other currency at the
Spot Rate of Exchange on that date.
"Event of Default" means each event specified in clause
23.1.
"Event of Insolvency" means, in relation to a person:
(a) a receiver, manager, receiver and manager,
trustee, administrator, Controller or similar officer is
appointed in respect of the person or all or a material part of
the assets of the person (whether under the Corporations Law or
any other applicable legislation);
(b) a liquidator or provisional liquidator is
appointed in respect of the person;
(c) any application (not being an application
withdrawn or dismissed within 60 days) is made to a court for an
order, or an order is made or a resolution is passed, for the
purpose of:
(i) appointing a person referred to in paragraphs (a) or (b)
to the person;
(ii) winding up the person; or
(iii) proposing or implementing a scheme of arrangement
in respect of the person,
other than in any such case for the purposes
of a solvent reconstruction approved by the
Facility Agent acting on the instructions of all
of the Banks;
(d) a moratorium of any debts of the person or an
official assignment or a composition or an arrangement (formal
or informal) with the person's creditors or any similar
proceeding or arrangement by which the assets of the person are
subjected conditionally or unconditionally to the control of the
person's creditors is ordered, declared or agreed to, or is
applied for and the application is not withdrawn or dismissed
within 7 days; or
(e) the person becomes, admits in writing that it is,
is declared by any court of competent jurisdiction to be, or is
deemed under any applicable law to be, insolvent or unable to
pay its debts as they become due and payable,
and in relation to The CitiPower Trust, means any of the
above events occurring in relation to The CitiPower Trust
as if The CitiPower Trust were a person having an
independent legal capacity.
"Excluded Assets" has the same meaning as in the
Declaration of Trust.
"Excluded Taxes" means any Taxes imposed by any
Government Body in any jurisdiction on the overall net
income of a Bank as a consequence of the Bank being a
resident of or organised or doing business in that
jurisdiction but not Australian Taxes:
(a) which are calculated on or by reference to
the gross amount of any payments (without the
allowance of any deduction) derived under any
Transaction Document; or
(b) which are imposed as a result of the Bank
being considered a resident of or organised or
doing business in that jurisdiction solely as a
result of it being a party to a Transaction
Document or any transaction contemplated by a
Transaction Document.
"Expiry Date" means:
(a) in relation to the Medium Term Facilities, 30
June 2000 unless the Office of the Regulator-
General has not at that time announced the final
price determination under section 25 and/or
section 26 of the Office of the Regulator-General
Act 1994 (Vic) regulating the charges for the use
of Distribution Systems to apply after the year
2000, in which case the Expiry Date shall be the
date which is the earlier of:
(i) the date which is 60 days after
the date of such announcement; and
(ii) 31 December 2000;
(b) in relation to the Working Capital Facility
or the VPX Guarantee Facility, the date determined
as the Expiry Date for that Facility in accordance
with clause 13; and
(c) in relation to a VPX Guarantee or Support
Letter of Credit, the last date upon which a claim
may be made under that VPX Guarantee or Support
Letter of Credit (as the case may be).
"Face Amount" means:
(a) in relation to a VPX Guarantee and at any
time, the maximum aggregate amount payable
(actually or contingently) by the Issuer under
that VPX Guarantee at that time;
(b) in relation to a Bill, the amount payable on
maturity of that Bill;
(c) in relation to the Support Letter of Credit
and at any time, the maximum aggregate amount
payable (actually or contingently) by the issuer
thereof under the Support Letter of Credit at that
time; and
(d) in relation to the Entergy Undertaking, the
maximum amount payable by Entergy thereunder at
that time.
"Facilities" means the Medium Term Facilities, the
Working Capital Facility and the VPX Guarantee Facility
(each a "Facility").
"Facility Agent" means initially Commonwealth Bank of
Australia, and subsequently any person who is from time
to time appointed as a successor Facility Agent under
clause 25.19.
"Facility Banks" means, in relation to a Facility, those
Banks who have a Commitment in respect of that Facility.
"Facility Commitments" means, in relation to a Facility,
the aggregate of the Commitments of the relevant Facility
Banks.
"Fee Letter" means any letter agreement between the
Borrower and the Facility Agent, the Arranger or any
Bank as to any fees payable by the Borrower in respect of
the provision of any of the Facilities or the entering
into of this Agreement.
"Financial Statements" means, in relation to a person or
The CitiPower Trust (as the case may be) and a period, a
profit and loss account for the period, a balance sheet
as at the last day of the period and all notes and other
explanations of or relating to the same.
"Foreign Currency" means any currency other than Dollars.
"Future DSCR" means, as at any date upon which
calculated, the ratio of the Net Present Value of the
aggregate of the Anticipated Operating Cash Flows to the
Adjusted Facility Commitment at that date.
"Gearing Ratio" means, at any time, the ratio (expressed
as a percentage) of:
(a) Adjusted Medium Term Outstandings; to
(b) Total Capitalisation.
"Government Body" means any person, government or the
body which exercises or becomes entitled to exercise an
executive, legislative, judicial or other government
function of any jurisdiction.
"Hedge Agreement" means any swap, cap, collar, forward
rate agreement or similar agreement or arrangement the
purpose of which is to hedge interest rates or the price
payable or receivable for the supply of goods, services
or commodities.
"Historical DSCR" means, as at the last day of any
Quarter, the ratio of Operating Cash Flow for the
preceding 12 months (or, during the first 12 months of
the Facility, for the period from the first Utilisation)
to Adjusted Interest Expense for that period.
"Information Memorandum" means the Information Memorandum
to be prepared by the Arranger and agreed with the
Borrower on the basis of information supplied by or on
behalf of the Borrower to assist the Arranger in
obtaining persons to provide the Facilities.
"Insolvency Provision" means any law relating to
insolvency, sequestration, liquidation or bankruptcy
(including any law relating to the avoidance of
conveyances in fraud of creditors or of preferences and
any law under which a liquidator or trustee in bankruptcy
may set aside or avoid transactions) and any provision of
any agreement, arrangement or scheme, formal or informal,
relating to the administration of any of the assets of
any person.
"Interest Expense" means, for any period:
(a) the aggregate of all interest, amounts in the
nature of interest (including amounts payable
under any interest rate Hedge Agreement), fees and
charges (other than amounts paid or payable in
connection with the establishment of the
Facilities, including arrangement fees,
underwriting fees, fees and other amounts payable
to the Facility Agent (but not periodic fees
payable in respect of the ongoing performance by
it of its duties as Facility Agent)) payable by
the Borrower which have accrued during that period
on or in respect of the Facilities; minus
(b) the aggregate of all such amounts payable to
the Borrower accrued during that period.
"Interest Period" means each period determined in
accordance with clause 10.2.
"Interest Rate" means, in relation to the Interest Period
for an Advance or a Drawdown, the aggregate of the Bill
Rate for that Interest Period and the Margin.
"Issuer" means:
(a) in relation to a VPX Guarantee issued by the
Issuing Bank, the Issuing Bank;
(b) in relation to a VPX Guarantee issued by the
Facility Agent on behalf of the VPX Guarantee
Banks, each VPX Guarantee Bank severally; and
(c) in relation to a VPX Guarantee issued by a
VPX Guarantee Bank, that VPX Guarantee Bank.
"Issuing Bank" means any VPX Guarantee Bank which issues
a VPX Guarantee in accordance with clause 6.
"Licences" means the Retail Licence and the Distribution
Licence.
"Majority Banks" means, at any time, (subject to clause
25.7) a Bank or Banks the aggregate of whose Aggregate
Commitments at that time is equal to or exceeds 66 2/3%
of the Total Commitments at that time.
"Majority Facility Banks" means, in relation to a
Facility, (subject to clause 25.7) Banks participating in
that Facility, the aggregate of whose Commitments in
respect of that Facility are equal to or exceed 66 2/3%
of the Facility Commitments.
"Management Committee" means, as the context requires:
(a) the committee which will have or has from
time to time responsibility for managing the
business affairs of the Borrower pursuant to the
articles of association to be adopted by the
Borrower upon or following Completion; or
(b) any committee established in substitution for
that committee; or
(c) if there is no such committee at any time,
the board of directors of the Borrower.
"Margin" means:
(a) in respect of the Medium Term Facilities, at
any time, the Margin determined in accordance with
clause 10.1; and
(b) in respect of the Working Capital Facility,
the margin agreed from time to time between the
Borrower and the Working Capital Banks.
"Material Adverse Effect" means an effect upon the
business or financial position of the Borrower which
adversely and materially affects the ability of the
Borrower to comply with its obligations under the
Transaction Documents.
"Material Documents" means:
(a) the Share Sale Agreement;
(b) the Trust Deed; and
(c) the Declaration of Trust.
"Medium Term Advance" means the principal amount of each
borrowing under the Medium Term Cash Advance Facility, or
the principal amount of that borrowing outstanding from
time to time, as the context requires.
"Medium Term Bank" means:
(a) each bank or financial institution identified
in Column 1 of Schedule 2; and
(b) each bank or financial institution which
assumes rights and obligations of a Medium Term
Bank pursuant to a Substitution Certificate.
"Medium Term Cash Advance Facility" means the credit
facility for the provision of medium term cash advances
agreed to be made available by the Medium Term Banks
pursuant to clause 2.1(a).
"Medium Term Commitment" means, in relation to a Medium
Term Bank, the amount set out opposite that Bank's name
in column 2 of Schedule 2, as varied from time to time,
and to the extent not reduced, terminated or cancelled in
accordance with this Agreement.
"Medium Term Facilities" means the Medium Term Cash
Advance Facility and the Bill Facility.
"Medium Term Outstandings" means, at any time, the
aggregate of the Utilisations under the Medium Term
Facilities outstanding at that time.
"Model" means the model for the calculation of certain
financial matters relating to the business and financial
affairs and performance of the Borrower as agreed between
the Arranger and the Borrower a pro-forma of which is
set out in Schedule 8, with such amendments or
modifications thereto as may from time to time be agreed
between the Borrower and the Facility Agent acting on the
instructions of the Majority Banks.
"Net Present Value" means, for the purposes of
calculating Future DSCR, the net present value discounted
on the basis of an annual yield calculated on the basis
of the weighted arithmetic mean of the assumed effective
rate of interest payable on or in respect of Utilisations
under the Medium Term Facilities calculated:
(a) until such time as the Borrower has complied
with its obligations under clause 21.3(d), on the
basis (weighted in the ratio 75:25) of the 5 year
swap rate and the 90 day bank bill swap reference
rate, in each case as published in the Australian
Financial Review on 1 December 1995; and
(b) at all times thereafter, on the basis
(weighted in the ratio of the hedged Medium Term
Commitments to the unhedged Medium Term
Commitments) of the effective maximum fixed rate
of interest locked in by the Borrower in complying
with its obligations under clause 21.3(d) and the
90 day bank bill swap reference rate as published
in the Australian Financial Review on the date as
at which the relevant calculation of Future DSCR
is made.
"Operating Cash Flow" means, for any period, in relation
to the Borrower:
(a) the operating profit for that period before
income tax, depreciation and amortisation
excluding:
(i) items of a capital nature, such
as asset revaluation, for that period; and
(ii) abnormal or extraordinary
revenue and expense items (excluding items
of a capital nature, such as asset
revaluations) incurred, paid or provided
for in that period (and which have not
previously been taken into account in
calculating Operating Cash Flow for any
previous period): plus
(b) Interest Expense for that period; minus
(c) income tax paid or which has become due and
payable for that period; plus
(d) proceeds from the sale of assets during that
period; plus
(e) amounts payable under the Voluntary Departure
Program during that period, up to the amount
provided for in the initial Model; minus
(f) capital expenditure made during that period.
"Permitted Derivative" means a Hedge Agreement which:
(a) is an interest rate swap or other agreement
having the effect of providing for a maximum or
fixed interest rate payable by the Borrower in
respect of any of its Borrowings; and
(b) is governed by an Approved ISDA Document.
"Permitted Encumbrance" means any Encumbrance over the
assets of the Borrower which the Borrower is expressly
permitted to create or allow to exist under clause
21.3(a) or any other provision of any Transaction
Document.
"Potential Event of Default" means any event which, with
the giving of notice, lapse of time or making of any
determination would constitute an Event of Default.
"Qualifying Claim" means a claim made by VPX for payment
under a VPX Guarantee which the Issuer in its absolute
discretion, having regard to the provisions of this
Agreement and the terms of that VPX Guarantee, considers
to be a valid claim for payment in accordance with that
VPX Guarantee.
"Quarter" means a calendar quarter, except that the first
Quarter is the period from the date of the first
Utilisation up to (and including) 30 September 1996.
"Reference Banks" means Commonwealth Bank of Australia,
ABN Amro Australia Limited, BA Australia Limited,
Australia and New Zealand Banking Group Limited, National
Australia Bank Limited and Westpac Banking Corporation or
such other banks or financial institutions as the
Borrower and the Facility Agent may from time to time
agree.
"Related Body Corporate" has the meaning given in section
9 of the Corporations Law, but on the basis that
"Subsidiary" for the purposes of that definition has the
meaning given in this Agreement.
"Repayment Date" means, in relation to an Advance, the
last day of the Interest Period for that Advance.
"Required Entergy Undertaking Amount" means, at the date
of issue of any Support Letter of Credit denominated in
US$, the amount equal to the lesser of:
(a) US$9,000,000 (or such other amount as Entergy
and the Facility Agent acting on the instructions
of the Majority Banks may agree); and
(b) the amount necessary to be added to the Face
Amount of the Support Letter of Credit to ensure
that the Equivalent in Dollars of the aggregate of
the Face Amount of the Support Letter of Credit
and the Face Amount of the Entergy Undertaking as
at such date is equal to 115% of the Required
Support LC Amount.
"Required Support LC Amount" means, at any time, the
amount in Dollars (if a positive number) necessary to be
subtracted from the Medium Term Outstandings to ensure
that the Gearing Ratio at that time is 70%.
"Retail Licence" means the retail licence issued to the
Borrower by the Office of the Regulator General pursuant
to the Electricity Industry Act 1993 (Vic) issued on 3
October 1994, as varied, replaced or renewed from time to
time.
"Return" means:
(a) in relation to a VPX Guarantee, the
delivering up by VPX of the original VPX Guarantee
prior to its Expiry Date on terms satisfactory to
the Facility Agent and the Issuing Bank that VPX
relinquishes absolutely and permanently any right
to make demands under that VPX Guarantee; and
(b) in relation to the Support Letter of Credit,
the delivery up by the Facility Agent of the
Support Letter of Credit prior to its Expiry Date.
"Security Certificate" has the same meaning as in the
Security Trust Deed.
"Security Document" means each of:
(a) the Security Trust Deed;
(b) the Charge;
(c) the Support Letter of Credit;
(d) the Entergy Undertaking;
(e) the Deed of Covenant;
(f) the Unitholders' Side Letter; and
(g) any other Encumbrance, guarantee, indemnity,
letter of credit or similar obligation or
arrangement which is at any time a security for
the obligations of the Borrower under this
Agreement.
"Security Property" means any property subject to any
Encumbrance created by a Security Document.
"Security Trust Deed" means the deed so entitled dated on
or about the date of this Agreement made between the
Borrower and the Security Trustee.
"Security Trustee" means initially Commonwealth Bank of
Australia, and subsequently any person who is from time
to time appointed as a successor Security Trustee under
the Security Trust Deed.
"Share" means, at any time in relation to a Bank and a
Facility, the proportion (expressed as a percentage)
which the Commitment of that Bank in relation to that
Facility bears to the Facility Commitments for that
Facility at that time.
"Share Sale Agreement" means the agreement entitled Share
Sale Agreement [Revised] dated 12 December 1995 made
between State Electricity Commission of Victoria, the
Honourable Alan Robert Stockdale, Entergy Victoria LDC,
Entergy Victoria Holdings LDC and Entergy Corporation,
relating to the sale and purchase of the entire issued
share capital of the Borrower.
"Spot Rate of Exchange" means, in relation to any date
and any two currencies, the Facility Agent's spot rate of
exchange for the purchase (in accordance with its usual
procedures) of one of those currencies with the other at
or about 11.00 a.m. on that date, for delivery two
Business Days after that date.
"Subordinated Debt" means, Borrowings incurred on terms
that repayments of principal and payments of interest are
not (save as contemplated in clause 11) payable except
and to the extent that all amounts payable under or in
respect of the Facilities have been paid in full and on
terms which are otherwise satisfactory to the Facility
Agent acting on the instructions of the Majority Banks.
"Subsidiary" in relation to any person, has the meaning
given in the Corporations Law but so that:
(a) an entity will also be deemed to be a
Subsidiary of a company if it is controlled by
that company (expressions used in this paragraph
have the meanings given for the purposes of parts
3.6 and 3.7 of the Corporations Law);
(b) a trust may be a Subsidiary, for the purposes
of which any units or other beneficial interests
will be deemed to be shares; and
(c) a corporation or trust may be a Subsidiary of
a trust if it would have been a Subsidiary if that
trust were a corporation.
A determination by any auditors of the person for the
time being as to whether an entity is a Subsidiary of
another entity will be evidence of the same until the
contrary is proved.
"Substitution Certificate" means any certificate in the
form of Schedule 9 completed and entered into in
accordance with clause 29.4 and references to a
"substitute" shall be construed as references to a person
who becomes party to this Agreement pursuant to a
Substitution Certificate.
"Support Letter of Credit" means any letter of credit
from time to time issued to the Facility Agent on behalf
of the Medium Term Banks under clause 9.
"Surplus Cash Flow" means, for any period, the Operating
Cash Flow for that period minus the Interest Expense for
that period.
"Swap Bank" means each Medium Term Bank or Related Body
Corporate of a Medium Term Bank which is a party to a
Permitted Derivative referred to in paragraph (a) of the
definition of that expression in this clause 1.1.
"Syndicated" means, in relation to a Facility, that each
Utilisation under that Facility is to be made available
by the relevant Banks pro-rata according to their
respective Shares.
"Tax" and "Taxes" mean all income tax, stamp duty and
other taxes, levies, imposts, deductions, charges and
withholdings plus interest thereon and penalties, if any,
and charges, fees or other amounts made on or in respect
thereof and "Taxation" shall be construed accordingly.
"Termination Date" means, in relation to a Facility, the
earlier of:
(a) the Expiry Date for that Facility; and
(b) the date upon which that Facility is
terminated or the Commitments of all relevant
Banks in relation to that Facility are cancelled
in full in accordance with this Agreement.
"The CitiPower Trust" means the unit trust constituted
under the Trust Deed.
"Total Capitalisation" means, at any time, the aggregate
of the Medium Term Outstandings at that time plus
Consolidated Net Worth.
"Total Commitments" means, at any time, the aggregate of
the Aggregate Commitments of all Banks at that time.
"Total Debt" means, at any time, total consolidated
Borrowings of the Borrower excluding Subordinated Debt.
"Transaction Document" means:
(a) this Agreement;
(b) each Substitution Certificate;
(c) each Security Document;
(d) each Permitted Derivative;
(e) the Working Capital Terms and Conditions;
(f) the VPX Terms and Conditions;
(g) each Fee Letter; and
(h) each other document which is agreed between
the Banks (or the Facility Agent on behalf of the
Banks) and the Borrower to be a Transaction
Document for the purposes of this Agreement.
"Treasury Commitment" means, in relation to a Swap Bank,
the amount determined in accordance with clause 25.7(c).
"Trust Deed" means the deed of trust dated on or about
the date of this agreement between the Borrower and the
Unitholders.
"Underwriters" means BA Australia Limited, Commonwealth
Bank of Australia, ABN AMRO Australia Limited, Credit
Suisse, Australia and New Zealand Banking Group Limited
and IBJ Australia Bank Limited.
"Unit" means a unit in The CitiPower Trust.
"Unitholders" means Entergy Victoria LDC and Entergy
Victoria Holdings LDC.
"Unitholders' Side Letter" means the letter agreement
dated on or about the date of this Agreement between the
Borrower, the Unitholders and the Facility Agent on
behalf of the Banks relating to the application of
certain amounts which may become payable to the
Unitholders under the Share Sale Agreement.
"US$" means the lawful currency for the time being of the
United States of America.
"Utilisation" means, as the context requires:
(a) a drawdown of an Advance under the Medium
Term Cash Advance Facility or the Working Capital
Facility;
(b) a drawdown (other than an Advance) under the
Working Capital Facility (whether by way of
overdraft, cash advance, the acceptance and
discounting of Bills or otherwise);
(c) an acceptance and discounting (or procuring
of the discounting) of Bills under the Bill
Facility and the amount of any such Utilisation
shall be the proceeds of such acceptance and
discounting, regardless of the Face Amount of such
Bills; or
(d) an issue of a VPX Guarantee under the VPX
Guarantee Facility.
"Utilisation Date" means, in relation to a Utilisation,
the date upon which that Utilisation is made or issued,
or is proposed to be made or issued, as the context
requires.
"Utilisation Notice" means:
(a) in relation to a Utilisation under the Medium
Term Cash Advance Facility or the Working Capital
Facility, a notice in (or substantially in) the
form set out in Schedule 5;
(b) in relation to a Utilisation under the VPX
Guarantee Facility, a notice in (or substantially
in) the form set out in Schedule 6; and
(c) in relation to a Utilisation under the Bill
Facility, a notice in or substantially in the form
set out in Schedule 7.
"VPX" means Victorian Power Exchange Ltd.
"VPX Guarantee" means any bank guarantee issued or to be
issued to VPX pursuant to this Agreement.
"VPX Guarantee Bank" means:
(a) each bank or financial institution identified
in Column 1 of Schedule 4;
(b) each bank or financial institution which
assumes rights and obligations of a VPX Guarantee
Bank pursuant to a Substitution Certificate; and
(c) each bank or financial institution which
becomes a VPX Guarantee Bank by executing an
Accession Agreement in accordance with clause
13.5.
"VPX Guarantee Commitment" means, in relation to a VPX
Guarantee Bank, the amount set out opposite that Bank's
name in Column 2 of Schedule 4 as varied or agreed under
any VPX Terms and Conditions from time to time, and to
the extent not reduced, terminated or cancelled in
accordance with this Agreement or any VPX Terms and
Conditions.
"VPX Guarantee Facility" means the credit facility for
the issue of VPX Guarantees agreed to be made available
by the VPX Guarantee Banks pursuant to clause 2.1(c).
"VPX Guarantee Payment" means, in relation to a VPX
Guarantee, any payment made in respect of that VPX
Guarantee by the Issuer of that VPX Guarantee.
"VPX Terms and Conditions" means any agreement in force
from time to time between the Borrower and a VPX
Guarantee Bank setting out additional or special terms
and conditions applicable to the VPX Guarantee Facility
as contemplated by clause 2.2.
"Working Capital Advance" means the principal amount of
each borrowing by way of cash advance under the Working
Capital Facility, or the principal amount of that
borrowing outstanding from time to time, as the context
requires.
"Working Capital Bank" means:
(a) each bank or financial institution identified
in Column 1 of Schedule 3;
(b) each bank or financial institution which
assumes rights and obligations of a Working
Capital Bank pursuant to a Substitution
Certificate; and
(c) each bank or financial institution which
becomes a Working Capital Bank by executing an
Accession Agreement in accordance with clause
13.5.
"Working Capital Commitment" means, in relation to a
Working Capital Bank, the amount set out opposite that
Bank's name in Column 2 of Schedule 3, as varied or
agreed under any Working Capital Terms and Conditions
from time to time, and to the extent not reduced,
terminated or cancelled in accordance with this Agreement
or agreed under any Working Capital Terms and Conditions.
"Working Capital Facility" means the credit facility for
the provision of working capital advances agreed to be
made available by the Working Capital Banks pursuant to
clause 2.1(d).
"Working Capital Terms and Conditions" means any
agreement in force from time to time between the Borrower
and the Working Capital Banks setting out additional or
special terms and conditions applicable to the Working
Capital Facility as contemplated by clause 2.2.
2 Interpretation
In this Agreement unless the context indicates a contrary
intention:
(a) the expression "person" includes an individual,
the estate of an individual, a body politic, a corporation and a
statutory or other authority or association (incorporated or
unincorporated);
(b) a reference to any party includes that party's
executors, administrators, successors, substitutes and assigns,
including any person taking by way of novation;
(c) a reference to any document or agreement is to
that document or agreement as amended, novated, supplemented,
varied or replaced from time to time except that references to
any Material Document are to that Material Document as in force
as at the date of this Agreement or, where applicable, as
amended in accordance with this Agreement;
(d) a reference to any legislation or to any section
or provision thereof includes any statutory modification or
re-enactment or any statutory provision substituted therefor and
all ordinances, by-laws, regulations and other statutory
instruments issued thereunder;
(e) words importing the singular include the plural
(and vice versa) and words denoting a given gender include all
other genders;
(f) headings are for convenience only and do not
affect interpretation;
(g) a reference to a clause is a reference to a clause
of this Agreement;
(h) where any word or phrase is given a defined
meaning any other part of speech or other grammatical form in
respect of such word or phrase has a corresponding meaning;
(i) where the day on or by which any sum is payable or
any act, matter or thing is to be done is a day other than a
Business Day, that sum will be paid and such act, matter or
thing will be done on the immediately preceding Business Day;
(j) all accounting terms used have the meaning given
to those terms under accounting principles and practices
generally accepted in Australia from time to time;
(k) representations, warranties, covenants,
undertakings and agreements made or given in favour of the
Facility Agent in its capacity as such are for the benefit of
each Bank;
(l) a reference to a law includes any law, regulation,
rule, directive or policy of any government or regulatory
authority whether or not having the force of law;
(m) a reference to any amount of money is to all
or part of that amount;
(n) the obligations of the Borrower with respect
to:
(i) a VPX Guarantee which has not
been Returned or in respect of which the
Expiry Date has not occurred; and
(ii) a Bill accepted and discounted
under the Bill Facility which has not
matured,
are "prepaid" by the making of a Cash Cover
Payment in relation to that VPX Guarantee or Bills
in accordance with this Agreement. References to
Utilisations being prepaid are to be construed
accordingly, insofar as those Utilisations are the
issue of VPX Guarantees or the making of
Drawdowns;
(o) the phrase "to the best of its knowledge and
belief" means, in relation to the Borrower, to the
best of the knowledge and belief of any Due
Diligence Team Member;
(p) a reference to a "certified copy" of a
document is to a copy of that document certified
by a member of the Management Committee, a
secretary or an assistant secretary of the
Borrower as a true and complete copy of the
document; and
(q) a reference to a specified paragraph is to
the specified paragraph in the clause in which the
reference appears.
1.3 Borrower's Liability
Notwithstanding that the Borrower enters into the
Transaction Documents in its capacity as trustee of The
CitiPower Trust:
(a) the Borrower's liability under the
Transaction Documents is not limited to the extent
to which it is entitled to be indemnified or
exonerated from the assets of The CitiPower Trust;
and
(b) the rights of the Facility Agent, the
Arranger and the Banks under the Transaction
Documents are not limited to the extent to which
they are entitled to be subrogated to or otherwise
have the benefit of the Borrower's right of
indemnity or exoneration from the assets of The
CitiPower Trust.
2. THE COMMITMENTS
1 Facilities
Subject to the terms of this Agreement and in reliance
upon the representations and warranties of the Borrower
made in this Agreement, the following Banks agree to make
the following facilities available to the Borrower:
(a) (Medium Term Cash Advance Facility): the
Medium Term Banks agree to make available a
revolving medium term cash advance facility, under
which the Medium Term Banks will make cash
advances in Dollars to the Borrower in a maximum
aggregate amount outstanding at any time not
exceeding the relevant Facility Commitments;
(b) (Bill Acceptance and Discount Facility): the
Medium Term Banks agree to make available a bill
acceptance and discount facility under which the
Medium Term Banks will accept and discount or
procure the discounting of Bills denominated in
Dollars having an aggregate discounted proceeds
amount outstanding at any time not exceeding the
relevant Facility Commitments;
(c) (VPX Guarantee Facility): the VPX Guarantee
Banks agree to make available a bank guarantee
facility on the terms of this Agreement and the
VPX Terms and Conditions under which the Issuing
Bank or the Facility Agent on behalf of the VPX
Guarantee Banks will issue, or procure the Issuing
Bank to issue, for the account of the Borrower,
VPX Guarantees denominated in Dollars in a maximum
aggregate Face Amount at any time not exceeding
the relevant Facility Commitments; and
(d) (Working Capital Facility): the Working
Capital Banks agree to make available working
capital facilities on the terms of this Agreement
and the Working Capital Terms and Conditions in a
maximum aggregate amount outstanding at any time
not exceeding the relevant Facility Commitments.
2.2 Working Capital and VPX Terms and Conditions
(a) (Modification of this Agreement): If the
Working Capital Facility or the VPX Guarantee
Facility (the "Relevant Facility") is at any time
not Syndicated, the Borrower and a Working Capital
Bank or (as the case may be) a VPX Guarantee Bank
(the "Relevant Bank") may agree in the Working
Capital Terms and Conditions or VPX Guarantee
Terms and Conditions (the "Relevant Terms and
Conditions") that any of the provisions of this
Agreement (except for clauses 20, 21, 22 and 23)
shall not apply to the Relevant Facility, or shall
apply with such additions amendments or
modifications thereto as may be set out in the
Relevant Terms and Conditions.
(b) (Notice of Conditions Modifications): The
Relevant Bank must, subject to paragraph (c),
promptly upon entering into the Relevant Terms and
Conditions give notice to the Facility Agent
setting out in reasonable detail those terms and
conditions of this Agreement which are not to
apply or are to apply with additions, amendments
and modifications.
(c) (Disclosure of Fees etc.): Nothing in
paragraph (b) requires a Relevant Bank to disclose
and a Relevant Bank must not disclose to the
Facility Agent details of the basis of
calculation, amounts or terms of payment of any
interest, fees, commissions or charges payable
under or in respect of the Relevant Facility.
(d) (Inconsistency): If there is any
inconsistency between the terms of this Agreement
and the Relevant Terms and Conditions, the
Relevant Terms and Conditions prevail to the
extent of the inconsistency.
2.3 Extent of Each Bank's Liability
The liability of each Bank with respect to the making
available of each Facility in respect of which it has a
Commitment is limited to making available that Bank's
Share of each Utilisation under that Facility, up to a
maximum aggregate amount outstanding not exceeding that
Commitment.
2.4 The VPX Guarantee Facility and the Issuing Banks
(a) The Issuing Bank shall be primarily liable to
VPX under any VPX Guarantee issued by it in
accordance with clause 6 to the full extent stated
in that VPX Guarantee even though that liability
exceeds the Issuing Bank's VPX Guarantee
Commitment;
(b) In the case of Utilisations of the VPX
Guarantee Facility by the issue of a VPX Guarantee
by the Issuing Bank, the liability of each VPX
Guarantee Bank in respect of that Utilisation is
limited to making payments to the Issuing Bank in
accordance with clause 6.3(a) up to a maximum
amount equal to its Share of any VPX Guarantee
Payment made by the Issuing Bank.
2.5 Several obligations
The obligations of each Bank under each Transaction
Document are several. The failure of a Bank to perform
its obligations under any Transaction Document shall not
relieve any other person from any of its obligations or
responsibilities under any Transaction Document. The
Facility Agent shall not be responsible for the
obligations of any Bank (except for its own obligations,
if any, as a Bank), nor shall any Bank be responsible for
the obligations of any other Bank.
2.6 Several interests
The interests of the Facility Agent and each Bank under
each Transaction Document are several. Each amount due
to the Facility Agent on its own account and to each Bank
under any Transaction Document constitutes a separate and
independent debt.
2.7 Purpose
(a) The Medium Term Facilities must be used for the
purposes of:
(i) in the case of the first
Utilisation, paying amounts required to be
paid by the Borrower under the Share Sale
Agreement on or immediately after
Completion or otherwise in connection with
the negotiation, execution and delivery of
the Share Sale Agreement and the
Transaction Documents; and
(ii) in respect of subsequent
Utilisations, the payment of any Buyer's
Adjustment (as defined in the Share Sale
Agreement) and for general working capital
and other purposes of The CitiPower Trust.
(b) The VPX Guarantee Facility must be used for the
purpose of issuing VPX Guarantees to VPX in satisfaction of the
prudential requirements set by VPX from time to time.
(c) The Working Capital Facility must be used for the
Borrower's working capital and other purposes of The CitiPower
Trust.
3. CONDITIONS PRECEDENT
1 Conditions Precedent to First Utilisation
The obligations of the Facility Agent and the Banks in
respect of the first Utilisation are subject to the
conditions precedent that the Facility Agent has first
received all of the following documents in form and
substance reasonably satisfactory to it:
(a) (Constituent Documents): a certified copy of
the Memorandum and Articles of Association of the
Borrower, and of the form of Articles of
Association to be adopted by the Borrower upon or
following Completion;
(b) (Resolutions): a certified copy of a
resolution of the directors of the Borrower
approving and resolving to enter into each
Transaction Document to which the Borrower is a
party and authorising a person or persons to
execute and deliver those Transaction Documents;
(c) (Power of Attorney): an original execution
copy or certified copy of any power of attorney
pursuant to which the Transaction Documents are to
be executed by the Borrower;
(d) (Authorised Officers): a notice nominating
the initial Authorised Officers of the Borrower
for the purposes of this Agreement;
(e) (Transaction Documents): the Transaction
Documents (excluding any Substitution
Certificates, any Working Capital Terms and
Conditions, any VPX Terms and Conditions, any Fee
Letter and any Permitted Derivatives) duly
executed and in registrable form together with
evidence that all stamp duty payable on execution
thereof has been or will be paid promptly
following execution;
(f) (Working Capital, VPX): evidence that the
initial Working Capital Terms and Conditions and
VPX Terms and Conditions (if any) have been agreed
and entered into, together with a notice in
respect of the same under clause 2.2(b);
(g) (Security Certificates): a Security
Certificate (as defined in the Security Trust
Deed) in the name of each Bank issued to that Bank
in accordance with the Security Trust Deed;
(h) (Material Documents): a certified copy of
each Material Document duly executed by all the
parties thereto;
(i) (Units Subscribed): evidence that the
Unitholders have subscribed for Units in cash not
less than an aggregate amount which is not less
than 331/3% of the first Utilisation to be made
under the Medium Term Facility and that the
Unitholders are the only holders of Units;
(j) (Section 206(6) Certificate): in relation to
the transactions contemplated by or to be given
effect to under the Transaction Documents and the
Material Documents, a certificate of the Borrower
under Section 206(6) of the Corporations Law,
having attached to it a certified copy of the
notice specifying the intention to propose the
special resolution of the Borrower referred to in
section 205(10)(a) of the Corporations Law;
(k) (Completion Date): evidence that the
Completion Date has occurred and that Completion
has, or will upon first Utilisation of the Medium
Term Facilities, take place;
(l) (Licences): certified copies of each Licence;
(m) (Approvals): copies of all approvals,
consents, licences (other than the Licences),
exemptions and other requirements of any
Government Body required for the entering into or
performance of the Transaction Documents and the
Material Documents;
(n) (Opinions): an opinion, addressed to the
Facility Agent, the Security Trustee and the
Banks, from each of:
(i) Clayton Utz, Australian legal
advisers to the Facility Agent and the
Banks; and
(ii) Messrs W.S. Walker & Company,
Cayman Islands lawyers to the Unitholders,
in each case as to such matters relating to
the Transaction Documents as the Facility Agent
may require;
(o) (Insurances):
(i) certified copies of the two
Insurance Policy Reports dated November
1995 from Jardine Australian Insurance
Brokers Pty Limited (the "Broker") to the
Borrower as to the insurance policies to be
maintained by the Borrower;
(ii) a letter from the Broker to the
Facility Agent confirming that the Borrower
is entitled to release those reports to the
Facility Agent, the Banks and the Security
Trustee and that such insurances, if taken
out and maintained, are, in the opinion of
the Broker, sufficient for the Borrower to
comply with its obligations under clause
21.3(i);
(iii) copies of certificates of
currency relating to each such insurance
policy; and
(iv) evidence that the Security
Trustee's interest has been noted on each
such policy; and
(p) (Entergy Letter of Comfort): the Entergy
Letter of Comfort.
2 Fee Letters
The obligations of the Facility Agent and the Banks in
respect of the first Utilisation are subject to the
condition precedent that the Borrower has issued or
accepted a Fee Letter to or from each of the Facility
Agent, the Arranger and the Security Trustee with which
Entergy or any of its Related Bodies Corporate has
previously agreed any fees to be paid to any such person
under or in connection with the arranging or provision of
any of the Facilities, under which the Borrower agrees to
be responsible for those fees previously agreed in the
place of Entergy or the relevant related body corporate.
3.3 Conditions precedent to all Utilisations
The obligations of the Facility Agent and each Bank in
respect of each Utilisation are subject, both at the date
of the relevant Utilisation Notice and at the Utilisation
Date, to:
(a) (Representations and warranties true): the
representations and warranties deemed to be repeated by
clause 20.5 are true and correct as though made at that date by
reference to the facts and circumstances then subsisting;
(b) (No Event of Default): no Event of Default has
occurred and continues unremedied (if capable of remedy) or will
result from the making of the Utilisation; and
(c) (No Potential Event of Default): except in
the case of a Utilisation the entire proceeds of
which are to be applied on the Utilisation Date in
meeting the Borrower's obligations under clause
7.7 or 8.2 in respect of a Utilisation previously
made, no Potential Event of Default has occurred
and continues unremedied (if capable of remedy) or
will result from the making of the Utilisation.
3.4 Waiver of Conditions Precedent
The provisions of clauses 3.1 and 3.3 may be waived or
varied by the Facility Agent on behalf of the Banks with
the prior written consent of all the Banks.
3.5 Facility Agent to Notify Banks
The Facility Agent must:
(a) notify the Banks promptly upon the conditions
precedent set out in clause 3.1 being satisfied;
and
(b) promptly following such satisfaction,
distribute copies of this Agreement and each
Security Document and the legal opinions referred
to in clause 3.1(n) to each Bank.
4. UTILISATION NOTICES
1 Notice
The Borrower may request a Utilisation under a Facility
on a Business Day by giving a Utilisation Notice to the
Facility Agent.
2 Utilisation Notice - Advances and Drawdowns
Each Utilisation Notice requesting an Advance or a
Drawdown must be in substantially the form of Schedule 5
or 7 (as the case may be) and must specify:
(a) the Facility under which the Utilisation is
requested;
(b) the amount of the Advance or Drawdown requested,
being, in the case of a Drawdown, the discounted proceeds of
Bills to be accepted and discounted required by the Borrower on
that Utilisation Date, which must:
(i) in the case of the Medium Term
Facility be not less than $10,000,000 and
an integral multiple of $1,000,000 or the
balance of the relevant undrawn Facility
Commitments; and
(ii) in the case of the Working
Capital Facility, be not less than
$1,000,000 and an integral multiple of
$250,000 or the balance of the relevant
undrawn Facility Commitments;
(c) the proposed Utilisation Date which must be a
Business Day during the relevant Availability Period;
(d) the proposed duration of the Interest Period;
(e) in the case of a Utilisation under the Bill
Facility, whether the Borrower requests the Medium
Term Banks to prepare the Bills; and
(f) payment instructions with respect to the
proceeds of the Advance or Drawdown (as the case
may be).
3 Utilisation Notice - VPX Guarantees
Each Utilisation Notice requesting the issue of a VPX
Guarantee must be in substantially the form of Schedule 6
and must specify in relation to the VPX Guarantee
requested:
(a) the Face Amount of the VPX Guarantee
(including any amounts for principal, interest,
prepayment indemnities or other amounts);
(b) the beneficiary of the VPX Guarantee, which
must be VPX;
(c) the proposed Utilisation Date, which must be
a Business Day during the relevant Availability
Period;
(d) the proposed Expiry Date of that VPX
Guarantee, which must be a Business Day not later
than the Expiry Date of the VPX Guarantee
Facility;
(e) instructions as to the delivery of the VPX
Guarantee upon issue; and
(f) the form of the VPX Guarantee which the
Borrower requests to be issued.
4 Requirements of Utilisation Notice
Each Utilisation Notice must:
(a) be received by the Facility Agent not later than
11.00 a.m. 3 Business Days (or, in the case of the first
Utilisation Notice under the Medium Term Facilities, one
Business Day) before the proposed Utilisation Date;
(b) be signed by two Authorised Officers of the
Borrower (or in the case of the first Utilisation Notice under
the Medium Term Facility, two persons who will be, as at the
first Utilisation Date, Authorised Officers of the Borrower);
(c) be irrevocable;
(d) not be given until the conditions precedent to a
Utilisation have been satisfied or waived (other than the
conditions precedent in clause 3.3 relating to the Utilisation
Date); and
(e) not be given if:
(i) in the case of Utilisation
under either Medium Term Facility, the
aggregate of the Medium Term Advance or the
discounted proceeds of the Drawdown (as the
case may be) plus the aggregate of the
Medium Term Outstandings (disregarding
Advances to be repaid and the amount of
Drawdowns in respect of which the relevant
Bills mature on the proposed Utilisation
Date) exceeds the Facility Commitments for
the Medium Term Facilities;
(ii) in the case of a Utilisation
under the Working Capital Facility, the
aggregate of the Utilisation requested plus
the Utilisations under the Working Capital
Facility then outstanding (disregarding
Utilisations under the Working Capital
Facility to be repaid on the proposed
Utilisation Date) exceeds the Facility
Commitments for the Working Capital
Facility; and
(iii) in the case of a Utilisation
under the VPX Guarantee Facility, the issue
of the VPX Guarantee requested would cause
the aggregate of the Face Amount of all VPX
Guarantees outstanding to exceed the
Facility Commitments for the VPX Guarantee
Facility.
5 Approved Form of VPX Guarantees
Each VPX Guarantee must be in such form as VPX may
specify and the Facility Agent acting on the instructions
of all of the VPX Guarantee Banks may approve, such
approval not to be unreasonably withheld.
6 Agent to Notify Banks
Promptly after receiving a Utilisation Notice (and in any
event not later than 1.00 p.m. 2 Business Days before the
proposed Utilisation Date) the Facility Agent must give
notice to each Bank which has a Commitment in respect of
that Facility:
(a) attaching a copy of the relevant Utilisation
Notice;
(b) specifying that Bank's Share of the
Utilisation;
(c) in the case of a Utilisation under the Bill
Facility, whether the Medium Term Banks are to
prepare the Bills; and
(d) in the case of a Utilisation under the VPX
Guarantee Facility, whether the VPX Guarantee
requested is to be issued by the Issuing Bank or
by the Facility Agent for and on behalf of each
VPX Guarantee Bank.
7 Facility Agent's right to vary
Without limiting any of its rights and powers under this
Agreement, the Facility Agent may with the prior consent
of the Borrower (such consent not to be unreasonably
withheld, delayed or conditioned) vary any of the times
at or by which any thing is to be done under this clause
4 if it determines that such a variation is necessary or
desirable to ensure the effective operation of the
Facilities. Any such variation shall be binding on all
parties to this Agreement.
8 Orderly Approach to Utilisations
In issuing a Utilisation Notice, the Borrower agrees to
use its best endeavours to ensure an orderly approach to
determining the Dollar amount, the number of Utilisations
sought in a Utilisation Notice and, in the case of
Drawdowns, the number of Utilisations within a weekly
period.
5. MAKING OF ADVANCES
Subject to the terms of this Agreement, following the
giving of a Utilisation Notice requesting an Advance:
(a) each Medium Term Bank or Working Capital Bank
(as the case may be) must pay to the Facility
Agent for the account of the Borrower not later
than 2:00 p.m. on the Utilisation Date its Share
of that Advance; and
(b) the Facility Agent must promptly (and in any
event before 2:30 p.m. on the Utilisation Date)
apply any amounts paid to it under paragraph (a)
in payment to the Borrower in accordance with the
payment instructions specified in the Utilisation
Notice.
6. VPX GUARANTEE FACILITY
6.1 The Issuing Bank
(a) Each VPX Guarantee Bank authorises the
Issuing Bank and the Facility Agent to issue VPX
Guarantees in accordance with and subject to the
terms of this Agreement.
(b) The Issuing Bank shall not be obliged to
issue a VPX Guarantee if it elects not to by
written notice to the Facility Agent to be
received not later than 11.00 a.m. on the Business
Day after it receives a copy of the relevant
Utilisation Notice under clause 4.6. If it elects
not to do so, the VPX Guarantee will be issued by
the Facility Agent on behalf of each VPX Guarantee
Bank severally according to its Share of the
aggregate Face Amount of that VPX Guarantee.
6.2 Issue of VPX Guarantees
Subject to the terms of this Agreement, following the
giving of a Utilisation Notice requesting a VPX
Guarantee, either:
(a) the Issuing Bank; or
(b) if the Issuing Bank has elected not to issue
the VPX Guarantee in accordance with
clause 6.1(b), the Facility Agent on behalf of the
VPX Guarantee Banks; or
(c) if the VPX Guarantee Facility is not
Syndicated, the relevant VPX Guarantee Bank,
must issue the VPX Guarantee requested in accordance with
that Utilisation Notice.
6.3 Indemnity to Issuing Bank and Facility Agent
(a) Each VPX Guarantee Bank must pay to the
Issuing Bank on demand that VPX Guarantee Bank's
Share of any VPX Guarantee Payment made by the
Issuing Bank.
(b) Each VPX Guarantee Bank must indemnify the
Issuing Bank and the Facility Agent and keep them
indemnified pro-rata their respective Shares on
demand against all payments, losses, liabilities,
damages, costs, charges and expenses paid,
suffered or incurred by them in relation to or
arising out of any Qualifying Claim or as a result
of having issued a VPX Guarantee or made a VPX
Guarantee Payment.
6.4 Liabilities under VPX Guarantees Issued by Facility Agent
(a) If a VPX Guarantee is issued by the Facility
Agent, it shall be issued as agent for and on
behalf of each VPX Guarantee Bank on the basis
that each VPX Guarantee Bank (and not the Facility
Agent personally, except in its capacity as a VPX
Guarantee Bank) will be severally liable under
that VPX Guarantee up to a maximum aggregate
amount equal to its Share of the Face Amount of
that VPX Guarantee.
(b) If the Facility Agent receives a Qualifying
Claim under a VPX Guarantee issued by it on behalf
of the VPX Guarantee Banks:
(i) the Facility Agent must
promptly give notice to each VPX Guarantee
Bank specifying that fact, the amount of
the Qualifying Claim and that VPX Guarantee
Bank's Share of that Qualifying Claim;
(ii) each VPX Guarantee Bank must
immediately pay to the Facility Agent for
the account of VPX its Share of the
Qualifying Claim; and
(iii) the Facility Agent must
immediately pay the amounts received by it
under sub-paragraph (ii) to VPX.
6.5 Issuing Bank's Position
Notwithstanding that the Issuing Bank acts as principal
and not as agent in issuing and agreeing to issue any VPX
Guarantee, to the extent not inconsistent therewith, the
provisions of clause 25 excluding or restricting
liability and responsibility shall (with such
consequential changes as are necessary to give effect
thereto) apply for the benefit of the Issuing Bank in its
relations with the VPX Guarantee Banks and the Borrower.
6.6 Qualifying Claims
The Borrower irrevocably authorises and directs the
Issuer to comply with any Qualifying Claim and to make
any payment under a VPX Guarantee in accordance with its
terms:
(a) without any further reference to or further
authority, verification or confirmation from the
Borrower, VPX or any other person;
(b) whether or not the Borrower may dispute such
Qualifying Claim;
(c) whether or not the Issuer has notice of any
dispute relating to any obligation in respect of
which the VPX Guarantee is issued, or any other
matter; and
(d) without enquiring into the validity,
genuineness or accuracy of any statement,
certificate or other document accompanying that
Qualifying Claim.
Any Qualifying Claim must be accepted by the Borrower as
conclusive and binding evidence that the Issuer was
liable to make payment under the VPX Guarantee.
6.7 General Indemnity
(a) The Borrower must pay to the Issuer on
demand, the amount of any VPX Guarantee Payment.
(b) The Borrower must indemnify the Issuer and
keep the Issuer indemnified on demand against all
payments, losses, liabilities, damages, reasonable
costs, charges and expenses paid, suffered or
incurred by the Issuer in relation to or arising
out of any Qualifying Claim.
6.8 Obligations Unconditional
The Borrower's obligations under clause 6.7 are:
(a) absolute and unconditional;
(b) not subject to any reduction by any set-off,
deduction, counterclaim, defence, or otherwise;
and
(c) not prejudiced or affected by any matter or
thing including without limitation:
(i) the impossibility or illegality
of performance of or any invalidity of or
affecting any other agreement;
(ii) any act of any Government Body
or other person, including any law,
judgment, decree or order at any time in
effect in any jurisdiction affecting the
terms of any agreement; or
(iii) any failure to obtain any
authorisation necessary or appropriate in
connection with any other agreement.
Neither the Issuer nor the Facility Agent is liable for,
or under any duty to enquire in respect of, any of the
matters referred to in this clause 6.8.
7. BILL FACILITY
7.1 Bills
If the Borrower gives a Utilisation Notice requesting a
Drawdown, it must, subject to clause 7.3, deliver to the
Facility Agent no later than 11.00 a.m. two Business Days
before the Utilisation Date Bills:
(a) each of which (subject to paragraph (b)) has
a Face Amount of $500,000 (or such other Face
Amount as, in relation to each or any of the
Bills, the Facility Agent requires);
(b) one of which for each Medium Term Bank has
the space for completion of the Face Amount left
blank;
(c) the aggregate Face Amount of which (excluding
the Bills referred to in paragraph (b)) is equal
to the amount of the Drawdown requested or such
other amount as the Facility Agent may require;
(d) the tenor of each of which is the same as the
Interest Period specified in the Utilisation
Notice;
(e) each of which is drawn by the Borrower and
signed by two Authorised Officers of the Borrower;
(f) each of which is expressed to be accepted and
payable at such place in Australia as the acceptor
of that Bill may designate;
(g) completed so that the space reserved for the
acceptor and the name of the payee is left blank;
and
(h) each of which is, to the extent chargeable
with stamp duty, stamped with such duty.
7.2 Delivery to Medium Term Banks
The Facility Agent must, subject to clause 7.3, not later
than one Business Day before the Utilisation Date deliver
to each Medium Term Bank Bills delivered to the Facility
Agent under clause 7.1 having an aggregate Face Amount
which is not less than that Bank's Share of the
Utilisation, together with the Bill having the space for
completion of the Face Amount left blank (as delivered to
the Facility Agent pursuant to clause 7.1(b)).
7.3 Preparation of Bills by Banks
If requested to do so by the Borrower in the Utilisation
Notice, each Medium Term Bank will prepare Bills in the
form required by clause 7.1, and complete and execute
those Bills pursuant to the Power of Attorney conferred
on it by clause 7.4 and in accordance with clause 7.5.
7.4 Completion of Bills
The Borrower irrevocably authorises the Facility Agent
and each Medium Term Bank and each of their respective
Authorised Officers, severally as its attorney, to draw,
complete any blanks in, accept, endorse and deliver Bills
delivered in accordance with clause 7.1 or required to be
completed in accordance with clause 7.3.
7.5 Completion of Blank Bills
The Facility Agent must notify each Medium Term Bank of
the Interest Rate applicable to a Drawdown not later than
11.30 a.m. on the Utilisation Date. Each Bank must,
promptly following such notification, in exercise of the
power of attorney conferred by clause 7.4, complete the
Face Amount of the Bill delivered to it and left blank
pursuant to clause 7.1(b), or prepared by it pursuant to
clause 7.3, to ensure that the amount payable by it under
clause 7.6(c) is equal to its Share of the Drawdown.
7.6 Acceptance and Discount
Subject to the terms of this Agreement, following the
giving of each Utilisation Notice requesting a Drawdown,
each Medium Term Bank must:
(a) accept the Bills delivered to it pursuant to
clause 7.2 or prepared by it pursuant to clause
7.3, and completed in accordance with clause 7.5;
(b) discount or procure the discount of those
Bills; and
(c) pay to the Facility Agent by not later than
2:00 p.m. on the relevant Utilisation Date an
amount equal to the aggregate Face Amount of those
Bills less a discount amount in respect of each
such Bill which results in a yield to maturity on
the Bill calculated at the Interest Rate for the
relevant Interest Period. Upon receipt of that
amount (but not later than 2:30 p.m. on the
relevant Utilisation Date) the Facility Agent must
pay the proceeds in accordance with the directions
of the Borrower set out in the relevant
Utilisation Notice.
7.7 Indemnity in Respect of Bills
(a) The Borrower agrees that all Bills accepted
and discounted under this Agreement will be paid
and met by the parties liable thereon on their
respective maturity dates.
(b) The Borrower must, subject to clause 8.3,
indemnify each Medium Term Bank and keep each such
Bank indemnified in respect of all liabilities and
losses suffered or incurred by that Bank arising
from that Bank accepting, drawing, indorsing or in
any way negotiating any Bill dealt with in
accordance with and for the purposes of the Bill
Facility.
(c) The Borrower must, subject to clause 8.3, by
2.30 p.m. on the maturity date of each Bill, pay
to the Medium Term Bank which accepted or procured
the acceptance of that Bill for its own use and
benefit (and not by way of security) an amount
equal to the Face Amount of each such Bill.
(d) As between the Medium Term Banks and the
Borrower, the Borrower shall be primarily liable
in respect of all Bills and the liability of the
Borrower shall not be taken to have been
discharged by reason of any Medium Term Bank
becoming the holder of that Bill before, on or
after its maturity.
7.8 Variation of Procedures
Notwithstanding anything in the preceding provisions of
this clause 7, the Facility Agent may by agreement with
the Borrower and the relevant Majority Facility Banks
vary any of the times at or by which any act, matter or
thing is to be done pursuant to any of those provisions
for the purpose of ensuring the effective operation of
the procedures contemplated by this clause 7 and any such
variation will be binding on all parties to this
Agreement.
8. REPAYMENT, PREPAYMENT AND CANCELLATION
8.1 Expiry Date
The Borrower must pay or repay all amounts outstanding
under or in respect of each Facility on the Expiry Date
of that Facility.
8.2 Repayment of Advances
Subject to the terms of this Agreement the Borrower must
repay each Advance on the Repayment Date for that
Advance.
8.3 Revolving Advances
If on any Repayment Date relating to a Utilisation (the
"Maturing Utilisation") under the Medium Term Facility or
the Working Capital Facility, a further Utilisation (the
"New Utilisation") is due to be made under that Facility,
then only an amount equal to:
(a) the amount payable under this Agreement and
(if applicable) the Working Capital Terms and
Conditions in respect of the Maturing Utilisation
on that Repayment Date; minus
(b) the amount of the New Utilisation to be made
available under this Agreement and (if applicable)
the Working Capital Terms and Conditions,
need be paid or repaid by the Borrower to the relevant
Banks (if such amount is a positive number) or advanced
or made available (as the case may be) by the relevant
Banks to the Borrower (if such amount is a negative
number).
8.4 Voluntary Prepayment
The Borrower may prepay the Medium Term Advances or the
Working Capital Advances at any time in whole or in part,
provided that:
(a) the amount prepaid is:
(i) in the case of the Medium Term
Cash Advance Facility, not less than
$5,000,000 and an integral multiple of
$1,000,000 (or the balance of the Medium
Term Advances then outstanding); and
(ii) in the case of the Working
Capital Facility, not less than $1,000,000
and an integral multiple of $250,000 (or
the balance of the Working Capital Advances
then outstanding);
(b) the Borrower gives not less than 10 days
prior notice in writing to the Facility Agent of
its intention to make that prepayment;
(c) a notice of intention to prepay pursuant to
paragraph (b) is irrevocable and binding on the
Borrower;
(d) the Borrower pays at the time of prepayment
all interest accrued on the amount prepaid
(calculated on a pro-rata basis) up to the date of
prepayment and all other amounts payable under
this Agreement (including without limitation any
amounts payable under clause 24(d)) in respect of
the amount prepaid; and
(e) amounts prepaid in respect of a Facility in
accordance with this clause may, subject to the
terms of this Agreement, be reborrowed under that
Facility.
8.5 Facility Agent to notify Banks
Promptly after its receipt of a notice of prepayment the
Facility Agent shall notify each Bank of the prepayment,
the date on which the prepayment is to be made and its
Share of the amount to be prepaid.
8.6 Voluntary Cancellation
The Borrower may, on giving not less than 15 days' prior
written notice to the Facility Agent (which shall
promptly give notice of the same to the Banks), cancel
any of the Commitments, in whole or in part (but, if in
part, by a minimum of $5,000,000 and an integral multiple
of $1,000,000) without incurring any penalty or other
cost, provided that such cancellation may only be
effected to the extent of the amount of the applicable
Commitments undrawn on the date upon which such
cancellation is to take effect. Any notice of
cancellation shall be irrevocable and shall specify the
relevant Commitments being cancelled, the date upon which
the cancellation is to become effective and the amount of
the reduction.
8.7 Cancellations Permanent
Any cancellation or reduction of any Commitment in
accordance with this Agreement is permanent unless
expressly stated to the contrary in this Agreement.
9. SUPPORT LETTER OF CREDIT AND ENTERGY UNDERTAKING
9.1 Issue of Support Letter of Credit
The Borrower must:
(a) ensure that there is issued to the Facility
Agent on behalf of the Medium Term Banks a standby
letter of credit issued by a bank or financial
institution which is at all times an Appropriately
Rated Bank in support of the Borrower's
obligations under the Medium Term Facilities which
must:
(i) be denominated in Dollars or
US$; and
(ii) have a Face Amount which is:
(A) if the standby
letter of credit is denominated in
Dollars at all times not less than
the Required Support LC Amount; or
(B) if the standby
letter of credit is denominated in
US$, not less than the Equivalent in
US$, as at the date of issue, of the
Required Support LC Amount; and
(b) if the Support Letter of Credit is
denominated in US$, and the Required Entergy
Undertaking Amount is greater than zero as at the
date of issue of the Support Letter of Credit, the
Borrower must also ensure that there is issued to
the Facility Agent on behalf of the Medium Term
Banks a payment undertaking in the form of
Schedule 13 having a Face Amount as at the date of
issue of not less than the Required Entergy
Undertaking Amount, issued by Entergy in support
of the Borrower's obligations under the Medium
Term Facilities.
9.2 Claims and Application under Support Letter of Credit
If at any time an Event of Default occurs and continues
unremedied or the Borrower breaches any paragraph of
clause 22.1 (except paragraph (d)) or any paragraph of
clause 22.2 (except paragraph (e):
(a) the Facility Agent may make a claim under:
(i) the Support Letter of Credit of
an amount up to the Required Support LC
Amount; and
(ii) except if the claim is made
following a breach of clause 22.1(f), if
the Support Letter of Credit is denominated
in US$, the Entergy Undertaking of the
amount (if any) which the Facility Agent is
entitled to claim under the Entergy
Undertaking;
(b) the Facility Agent must apply the proceeds of
any such claim in repayment or prepayment of the
Medium Term Outstandings in accordance with this
Agreement;
(c) except if the claim is made following a
breach of clause 22.1(f), the Medium Term
Commitments will be permanently reduced pro rata
by the amount so repaid or prepaid; and
(d) if the claim is made following a breach of
clause 22.1(f), and the Borrower has not procured
the issue of a substitute Support Letter of Credit
in accordance with clause 9.1 within 30 days after
such claim:
(i) if the Support Letter of Credit
is denominated in US$, the Facility Agent
may make a claim under the Entergy
Undertaking of the amount (if any) which
the Facility Agent is entitled to claim
under the Entergy Undertaking and must
apply the proceeds of such claim in
repayment or prepayment of the Medium Term
Outstandings; and
(ii) the Medium Term Commitments
will be permanently reduced pro rata by an
amount equal to the aggregate amount repaid
or prepaid under paragraph (b) and
sub-paragraph (i) of this paragraph.
9.3 Replacement of Support Letter of Credit -
Overcollaterilisation
If:
(a) the Support Letter of Credit is denominated
in Dollars and at any time the Face Amount of the
Support Letter of Credit is greater than the
Required Support LC Amount; or
(b) the Support Letter of Credit is denominated
in US$ and at any time the Equivalent in Dollars
of the Face Amount of the Support Letter of Credit
is more than 105% of the Required Support LC
Amount,
the Facility Agent must, upon not less than 2 Business
Days' written notice from the Borrower, either:
(c) Return the Support Letter of Credit against
the issue to the Facility Agent of a substitute
Support Letter of Credit having:
(i) if denominated in Dollars, a
Face Amount equal to or greater than the
Required Support LC Amount; or
(ii) if denominated in US$, a Face
Amount which is equal to or greater than
the Equivalent in US$ of the Required
Support LC Amount; or
(d) accept an amendment to the Support Letter of
Credit such that its Face Amount (or if the
Support Letter of Credit is denominated in US$,
the Equivalent in US$ of its Face Amount) is equal
to or greater than the Required Support LC Amount.
9.4 Replacement of Support Letter of Credit -
Undercollateralisation
If the Support Letter of Credit is denominated in US$,
and at any time the Equivalent in Dollars of the Face
Amount of the Support Letter of Credit is less than 90%
of the Required Support LC Amount, the Borrower must
within 30 days of demand by the Facility Agent procure
the issue to the Facility Agent on behalf of the Medium
Term Banks by an Appropriately Rated Bank of a standby
letter of credit in support of the Borrower's obligations
under the Medium Term Facilities having:
(a) if denominated in Dollars, a Face Amount
equal to the Required Support LC Amount; and
(b) if denominated in US$, a Face Amount which is
the Equivalent in US$ of the Required Support LC
Amount.
The Facility Agent must Return to the Borrower any
Support Letter of Credit previously issued and not
Returned against delivery of a standby letter of credit
delivered pursuant to this clause 9.4.
10. MARGIN, INTEREST AND INTEREST PERIODS
10.1 Determination of Margin - Medium Term Facilities
(a) During the period from the date of this
Agreement up to and including 30 September 1996,
the Margin applicable to Utilisations made under
the Medium Term Facilities on or before the date
upon which the Historical DSCR for the Quarter
ending on that date is calculated and the
calculation delivered to the Facility Agent in
accordance with clause 22.1(d) is 0.60% per annum;
and
(b) During the period from and including 1
October 1996, the Margin applicable to any
Utilisation will be determined depending upon the
Historical DSCR as set out in the calculation
delivered to the Facility Agent in accordance with
clause 22.1(d) most recently prior to the relevant
Utilisation Date in accordance with the following
table:
Historical Margin
DSCR (rate per annum)
<1.25 0.75%
31.25<1.50 0.60%
31.50<1.75 0.55%
31.75<2.00 0.50%
32.00 0.45%
10.2 Interest Periods
(a) Each Interest Period in respect of an Advance or a
Drawdown shall be of the duration specified in the relevant
Utilisation Notice, which must, subject to paragraph (b), be
between 30 and 180 days (inclusive) or such other period as the
Facility Agent acting on the instructions of the relevant
Majority Facility Banks may agree.
(b) If the first Utilisation under the Medium Term
Facilities is the drawdown of an Advance under the Medium Term
Cash Advance Facility, the Interest Period for that Advance must
be not less than 60 days and must not exceed 90 days.
(c) The term of each Interest Period is subject to
such marginal adjustment by the Facility Agent in its discretion
to ensure that:
(i) the first and last days of it
are Business Days; and
(ii) no Interest Period expires
after the Expiry Date for the relevant
Facility.
10.3 Calculation of Interest
Interest on each Advance accrues daily at the Interest
Rate applicable to that Advance and is calculated on a
daily basis on a year of 365 days. For the purposes of
calculating interest on an Advance, the first day of an
Interest Period shall be included, and the last day shall
be excluded.
10.4 Payment of Interest
The Borrower must pay to the relevant Banks the accrued
interest in relation to each Advance on the Repayment
Date for that Advance.
10.5 Interest on Overdue Amounts
The Borrower must pay to the Banks interest on all
amounts due and payable under or in respect of this
Agreement and unpaid, including any interest payable
under this clause 10.5. Such interest accrues from day
to day from the due date to the date of actual payment
both before and (as a separate and independent
obligation) after judgment, at the rate equal to the
Interest Rate plus 2% per annum calculated on the basis
specified in clause 10.3 and as if the amount unpaid were
an Advance having successive Interest Periods of 90 days.
10.6 Notification of Interest Rate
The Facility Agent must notify the Borrower of the Bill
Rate applicable to an Advance or a Drawdown promptly
following determination of the same, and if calculated in
accordance with paragraph (b) of the definition "Bill
Rate" in clause 1.1, the quotes given by the Reference
Banks.
11. DISTRIBUTIONS
11.1 Distributions
(a) The Borrower must not make any Distributions:
(i) on or before the date upon
which the calculation of the Historical
DSCR for the Quarter ending on 30 September
1996 is delivered to the Facility Agent in
accordance with clause 22.1(d); or
(ii) at any time while an Event of
Default or Potential Event of Default has
occurred and continues unremedied.
(b) Subject to paragraph (a), the Borrower may
make Distributions in respect of any Quarter at
any time after the date upon which the Historical
DSCR for that Quarter has been calculated and the
calculation delivered to the Facility Agent in
accordance with clause 22.1(d), up to a maximum
amount calculated as a percentage of the Surplus
Cash Flow for that Quarter, as set out in clause
11.3.
11.2 Manner of Distributions
The making of any Distribution must not cause a breach of
clause 22.3.
11.3 Amount to be Distributed
The percentage of Surplus Cash Flow which may be applied
in making Distributions in respect of any Quarter is
limited by achievement as at the end of that Quarter of
minimum ratios for both Historical DSCR (calculated for
that Quarter in accordance with clause 22.1(d)) and
Future DSCR (as most recently calculated in accordance
with clause 22.2(e)), as follows:
During the Period until 30.12.96
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.30 >1.30
50 >1.25,< or = 1.30 >1.25,< or = 1.30
0 < or = 1.25 < or = 1.25
During the Period 31.12.96 - 30.3.97
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.30 >1.325
50 >1.25, < or = 1.30 >1.25, < or = 1.325
0 < or = 1.25 < or = 1.25
During the Period 31.3.97 - 29.9.97
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.35 >1.325
50 >1.30, < or = 1.35 >1.25, < or = 1.325
0 < or = 1.30 < or = 1.25
During the Period 30.9.97 - 30.12.97
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.45 >1.325
50 >1.40, < or = 1.45 >1.25, < or = 1.325
0 < or = 1.40 < or = 1.25
During the Period 31.12.97 - 30.3.98
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.45 >1.35
50 >1.40, < or = 1.45 >1.275, < or = 1.35
0 < or = 1.40 < or = 1.275
During the Period 31.3.98 - 29.9.98
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.50 >1.35
50 >1.45, < or = 1.50 >1.275, < or = 1.35
0 < or = 1.45 < or = 1.275
During the Period 30.9.98 - 30.12.98
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.65 >1.35
50 >1.55, < or = 1.65 >1.275, < or = 1.35
0 < or = 1.55 < or = 1.275
During the Period 31.12.98 - 30.12.99
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.65 >1.375
50 >1.55, < or = 1.65 >1.30, < or = 1.375
0 < or = 1.55 < or = 1.30
During the Period after 30.12.99
% Surplus Historical Future DSCR
Cash Flow DSCR
100 >1.65 >1.40
50 >1.55, < or = 1.65 >1.325, < or = 1.40
0 < or = 1.55 < or = 1.325
For the purposes of this clause 11.3, the applicable
Future DSCR will be the Future DSCR most recently
calculated in accordance with clause 22.2(e).
11.4 Accumulation of Surplus Cash Flow
Surplus Cash Flow for each Quarter which is prohibited
from being distributed as Distributions must be
deposited, to a designated account (the "Accumulation
Account") in the name of the Borrower with the Facility
Agent, immediately upon delivery to the Facility Agent
pursuant to clause 21.2(a)(ii) of the Financial
Statements of The CitiPower Trust for that Quarter. Sums
standing to the credit of the Accumulation Account will
bear interest at the rate payable by the Facility Agent
from time to time on overnight or call deposits of
similar amounts, and may be used (at the option of
Borrower) for:
(a) investment in Authorised Investments;
(b) repayment or prepayment of all or part of the
Medium Term Outstandings; or
(c) payment of Distributions in accordance with
clause 11.5.
11.5 Release of Funds from Accumulation Account
Amounts deposited to the Accumulation Account in respect
of any Quarter (the "Relevant Quarter") may only be
released to the Borrower for application in making
Distributions if:
(a) for two consecutive subsequent Quarters, the
Historical DSCR and Future DSCR is such that if
the Borrower had achieved those ratios in respect
of the Relevant Quarter, the Borrower would have
been entitled to apply in respect of that Relevant
Quarter a higher percentage of Surplus Cash Flow
in making Distributions than it was actually
entitled to apply;
(b) no Event of Default would result;
(c) the Borrower has not been obliged to apply
Surplus Cash Flow credited to the Accumulation
Account in making repayments in respect of the
Medium Term Facilities in accordance with clause
11.7; and
(d) the amount released does not exceed the
maximum amount permitted by clause 11.6.
11.6 Limit on Distributions from Accumulation Account
The maximum amount which may be released from the
Accumulation Account in accordance with clause 11.5 is
the lesser of:
(a) an amount equal to:
(i) the aggregate amount which the
Borrower would have been entitled to apply
in making Distributions in respect of the
Relevant Quarter if the financial ratios
achieved during those two consecutive
subsequent periods had been met at all
previous times; minus
(ii) the aggregate amount of
Distributions previously made in respect of
the Relevant Quarter; and
(b) an amount equal to:
(i) the aggregate amount of Surplus
Cash Flow deposited to the Accumulation
Account in respect of the Relevant Quarter;
minus
(ii) any amounts deposited to the
Accumulation Account in respect of the
Relevant Quarter which have been applied in
repayment or prepayment of all or any part
of the Medium Term Outstandings, as
contemplated by clause 11.4(b).
11.7 Repayments from Accumulation Account
If in any two or more consecutive Quarters, the
percentage of the Surplus Cash Flow which the Borrower is
entitled to apply in making Distributions is zero, the
Borrower must on the next Repayment Date prepay or repay
the Medium Term Outstandings by an amount equal to the
prepayment amount. Amounts so prepaid or repaid may not
be reborrowed, and the Medium Term Commitments will be
permanently reduced by any amount so prepaid or repaid.
For the purposes of this clause 11.7, the "prepayment
amount" is an amount equal to:
(a) the aggregate amount of Surplus Cash Flow
deposited to the Accumulation Account in respect
of the relevant Quarters; minus
(b) the aggregate of amounts so deposited which
have previously been applied in accordance with
clause 11.4(b) (to the extent not redrawn as
further Utilisations under the Medium Term
Facility on or before the relevant Repayment
Date).
12. BILL RELIQUIFICATION
12.1 Drawing of Bills
The Borrower agrees to draw (without recourse to the
Borrower) Bills in connection with any Medium Term
Advance made to it in the manner required by any Bank
whenever requested by a Bank to do so except that the
discounted value of those Bills when added to the
aggregate discounted value of all other Bills drawn under
this clause for the relevant Bank and which are
outstanding at any time may not exceed that Bank's Share
of all Medium Term Advances outstanding.
12.2 Attorney
The Borrower irrevocably appoints each Bank (severally)
as its attorney to draw Bills in its name or on its
behalf under clause 12.1 and agrees to ratify all
reasonable action taken properly and in good faith by any
Bank as its attorney under this clause.
12.3 Appointment Revoked
The requirement to draw Bills under clause 12.1 and the
appointment under clause 12.2 will cease and be revoked
without necessity for notice upon the expiry of the
Availability Period for the Medium Term Facilities.
Nothing in clause 12.1 or 12.2 requires the Borrower or
authorises any Bank as attorney to draw a Bill in respect
of an Advance under a Facility which matures after the
Expiry Date for that Facility.
12.4 Indemnity
Each Medium Term Bank (severally) indemnifies the
Borrower in respect of all liabilities, losses, damages,
costs, charges and expenses suffered or incurred by it in
respect of any Bill drawn by the Borrower at the request
of that Bank under clause 12.1 or drawn by that Bank
under clause 12.2. Each Medium Term Bank agrees to pay
the costs of preparation of and all stamp duty on each
Bill drawn at its request under this clause 12.
12.5 Notice
On request by the Borrower (not more often than once each
Quarter) the Facility Agent on behalf of the Medium Term
Banks will notify the Borrower of the total face value of
Bills outstanding at that time under this clause 12.
13. REVIEW, EXPIRY DATE
13.1 Expiry Date
The Expiry Date in relation to each of the Working
Capital Facility and the VPX Guarantee Facility is,
subject to the following provisions of this clause 13,
the Business Day immediately preceding the first
anniversary of the date of this Agreement or any earlier
date upon which the relevant Facility is terminated in
accordance with its terms or the Commitments relating to
the relevant Facility are cancelled in full.
13.2 Request for Extension
The Borrower may at any time not less than 90 days before
the current Expiry Date for the Working Capital Facility
or the VPX Guarantee Facility by written notice to the
Facility Agent, request the Working Capital Banks or the
VPX Guarantee Banks (as the case may be) to offer to
extend the then current Expiry Date for the Working
Capital Facility or the VPX Guarantee Facility (as the
case may be) for such further period not exceeding 364
days as is specified in the notice.
13.3 Response to Request
The relevant Facility Banks must, following receipt of a
request under clause 13.2, by notice in writing to the
Facility Agent not later than 60 days before the Expiry
Date then current indicate whether they offer to extend
the Expiry Date of the relevant Facility and, if so, must
give written notice to the Borrower setting out details
of all fees and charges to apply to the relevant Facility
during the extended period. If they do so offer, then the
Facility Agent must, within 3 Business Days after
receiving notice of the offer, give notice to the
Borrower of such offer.
13.4 Acceptance by Borrower
The Borrower must, within 3 Business Days after a notice
from the Facility Agent under clause 13.3, containing an
offer to extend the Expiry Date, indicate whether it
wishes to accept the offer. If it does so, the Expiry
Date of the relevant Facility will be extended to the
date which is the earlier of:
(a) the date specified in the Borrower's request
under clause 13.2; and
(b) the date which is 364 days after the date of
the notice given by the Facility Agent under
clause 13.3.
13.5 Substitution of Working Capital and VPX Guarantee Banks
If the Working Capital Facility or (as the case may be)
the VPX Guarantee Facility is terminated, is not extended
pursuant to previous provisions of this clause 13 or
expires without being renewed, the Borrower:
(a) may at any time enter into arrangements with
one or more banks or financial institutions for it
or them to provide a replacement Working Capital
Facility or VPX Guarantee Facility (as the case
may be), either on a Syndicated basis or
otherwise; and
(b) must, if it enters into any such
arrangements, procure that each such bank or
financial institution enters into an Accession
Agreement.
13.6 Accession of Working Capital and VPX Guarantee Banks
(a) (Deliver Counterparts): The Borrower must
ensure that any Accession Agreement entered into
pursuant to clause 13.5 is executed by itself and
each relevant bank or financial institution (each
an "Incoming Bank") in 2 counterparts plus an
additional counterpart for each Incoming Bank, and
must promptly deliver:
(i) to the Facility Agent those
counterparts and a notice from each
Incoming Bank in the form contemplated by
clause 2.2(b); and
(ii) to the Security Trustee the
information required under clause 3.3 of
the Security Trust Deed and an executed
Security Certificate for each Incoming
Bank.
(b) (Execution on behalf of Banks): On receipt
of counterpart Accession Agreements pursuant to
paragraph (a), the Facility Agent must promptly:
(i) notify each Bank and the
Security Trustee;
(ii) countersign in Canberra or
outside Australia and date the counterparts
on behalf of all other parties to this
Agreement;
(iii) enter the details of the
Accession Agreement in a register kept by
it (which shall be conclusive); and
(iv) retain one counterpart and
deliver one counterpart to each of the
Borrower and each Incoming Bank.
(c) (Effect of Accession Agreement): Upon any
such certificate being countersigned by the
Facility Agent, the Incoming Bank shall, with
effect from the date specified in the Accession
Agreement, (the "Effective Date") become a party
to, have the benefit of and be bound by the
Transaction Documents as if it were an original
party thereto as a Working Capital Bank or a VPX
Guarantee Bank (as the case may be) provided that
the Incoming Bank shall have no liability under
any Transaction Document in respect of any matter
or thing occurring prior to the Effective Date.
(d) (Authority of Facility Agent): Each other
party to this Agreement irrevocably authorises the
Facility Agent to sign each counterpart Accession
Agreement delivered under paragraph (a) on its
behalf and acknowledges that:
(i) upon any such Accession
Agreement being signed by the Facility
Agent it shall be deemed for all purposes
to have consented to the accession by the
Incoming Bank to the Transaction Documents;
and
(ii) it will continue to be bound by
the provisions of the Transaction Documents
accordingly.
(e) (Security Certificates): Upon receipt of
Security Certificates from the Borrower under
paragraph (a) and of a notice from the Facility
Agent under paragraph (b), the Security Trustee
must:
(i) endorse its consent on those
Security Certificates and deliver them to
the relevant Incoming Bank; and
(ii) make the appropriate entries in
the Register of Secured Creditors
maintained by it in accordance with the
Security Trust Deed.
13.7 No Obligation to Extend
No Working Capital Bank and no VPX Guarantee Bank has any
obligation to extend the Expiry Date of any Facility, and
failure to extend any Expiry Date in accordance with this
clause 13 shall not give rise to any liability on the
part of any Bank or the Facility Agent.
14. FEES
14.1 Underwriting Fee
The Borrower must pay to each Underwriter a
non-refundable underwriting fee, calculated and payable
as set out in the relevant Fee Letter.
14.2 Agency Fee
The Borrower must pay to the Facility Agent the agency
fee, calculated and payable as set out in the relevant
Fee Letter.
14.3 Commitment Fee - Medium Term Facilities
(a) The Borrower must pay to the Medium Term
Banks pro-rata their respective Shares in the
Medium Term Facilities a commitment fee in respect
of the Medium Term Facilities determined in
accordance with the following paragraphs of this
clause 14.3.
(b) During the period from the date of this
Agreement up to and including 30 September 1996,
the commitment fee in respect of the Medium Term
Facilities will be calculated in accordance with
paragraph (d) at the rate of 0.275% per annum.
(c) During the period from and including 1
October 1996, the percentage rate per annum at
which the commitment fee in respect of the Medium
Term Facilities is to be calculated in accordance
with paragraph (d) in respect of any Quarter will
be determined depending upon the Historical DSCR
calculated as at the end of the immediately
preceding Quarter, in accordance with the
following table:
Historical Commitment Fee
DSCR
<1.25 0.35%
31.25<1.50 0.275%
31.50<1.75 0.25%
31.75<2.00 0.225%
32.00 0.20%
(d) The commitment fee in respect of the Medium
Term Facilities will be calculated at the
applicable rate on a daily basis on the daily
undrawn balance of the Medium Term Facilities
available for Utilisation, and is payable
quarterly in arrears within 10 days of the end of
each Quarter.
14.4 VPX Guarantee Facility Fees
The Borrower must pay to the VPX Guarantee Banks such
fees calculated and payable on such basis as set out in
any relevant Fee Letter.
14.5 Working Capital Facilities Fees
The Borrower must pay to the Working Capital Banks such
fees calculated and payable on such basis as set out in
any relevant Fee Letter.
15. PAYMENTS
15.1 Manner of Payment
All payments to be made by the Borrower to the Facility
Agent or the Banks under any Transaction Document (other
than any Fee Letter):
(a) before the Facility Agent gives a notice
under clause 23.2, must be made to the Facility
Agent; and
(b) after the Facility Agent gives such a notice,
must be made to the Security Trustee in accordance
with the Security Trust Deed.
15.2 Specific Duties
The Facility Agent must distribute promptly to each Bank
that Bank's Share of all sums received by the Facility
Agent on behalf of the Banks under or in respect of any
Transaction Document. The Facility Agent may retain for
its own use and benefit (and shall not be liable to
account to any of the Banks for all or any part of) any
sums received by it for its own account (and not payable
to any Bank) or by way of reimbursement of expenses
incurred by it in the performance of its duties under the
Transaction Documents.
15.3 Application of Payments
If any amount received by the Facility Agent in respect
of a Facility under or in respect of any Transaction
Document on any date is less than the total sum due for
payment on that date, then regardless of any
appropriation of all or part of that amount by the person
making such payment, the Facility Agent must (unless
directed to the contrary by the Majority Facility Banks
at or prior to the time of application), apply that
amount:
(a) firstly, in or towards payment of any costs
or expenses then due and payable under the
relevant Transaction Document to the Facility
Agent and/or the relevant Banks;
(b) secondly, in or towards payment of any
interest or fees then due and payable under the
relevant Transaction Document to the Facility
Agent and/or the relevant Banks;
(c) thirdly, in or towards repayment or
prepayment of amounts outstanding under or in
respect of the relevant Facility, and in such
order as the Facility Agent shall designate; and
(d) fourthly, in or towards payment of any other
sums due and payable under or in respect of the
Transaction Documents.
15.4 Time and place
All payments by the Borrower under any Transaction
Document, or by any Bank under this Agreement are (unless
expressly provided in this Agreement or otherwise in
writing), to be made to the Facility Agent in Dollars by
bank cheque or otherwise in immediately available funds
not later than 11.00 a.m. (Melbourne time) on the due
date to the following account of the Facility Agent:
00063036 3350 - 1190104 - 001
or such other account in Victoria or New South Wales as
the Facility Agent may from time to time designate by
notice in writing to the Banks and the Borrower.
15.5 Merger
If the liability of the Borrower to pay any amount under
or in respect of any Transaction Document becomes merged
in any judgment or order, the Borrower must, as an
independent obligation, pay to the Banks interest at the
rate which is the higher of that payable under the
relevant Transaction Document and that fixed by or
payable under such judgment or order.
15.6 Conversion of Foreign Currency receipts to Dollars
If any payment in respect of any amount due under any
Transaction Document is tendered in a Foreign Currency,
and that payment is accepted by the Facility Agent or any
Bank, or if any funds are recovered by the Facility Agent
or any Bank under any Transaction Document in a Foreign
Currency, the Facility Agent or that Bank (as the case
may be) may convert such payment to Dollars at such time
or times as it sees fit in its discretion and at such
rate or rates as it is able to obtain in the market at
the time of such conversion.
15.7 Costs of Conversion
The Borrower must pay to the Facility Agent and any Bank
all reasonable commissions and expenses involved in
actually or notionally converting any payment or receipt
in a Foreign Currency into Dollars.
15.8 Foreign Currency indemnity
If Foreign Currency is received by the Facility Agent or
any Bank as a result of a court or tribunal order or as a
result of a distribution under an Insolvency Provision,
then as a separate obligation (notwithstanding such order
or distribution) the Borrower must pay to the Facility
Agent or the relevant Bank any deficiency in the amount
of Dollars actually received by the Facility Agent or
that Bank resulting from any variation between:
(a) the rate of exchange applicable at the time
of the order or distribution; and
(b) the rate of exchange at which the Facility
Agent or that Bank is able, at the time of
receipt, to purchase Dollars with the amount of
Foreign Currency actually received by the Facility
Agent or Bank.
15.9 Payments in Reliance on Receipt
The Facility Agent is not obliged to make available to
any person any amount which it is expecting to receive
for the account of that person until it has been able to
establish to its satisfaction that it has received that
amount. If and to the extent that the Facility Agent
does so make available any such amount, but it transpires
that the Facility Agent had not then received that
amount:
(a) the person to whom the Facility Agent made
that amount available shall on demand refund that
amount in full to the Facility Agent; and
(b) that person shall pay to the Facility Agent
on demand such amount (as certified by the
Facility Agent) as is necessary to indemnify the
Facility Agent against any funding or other cost,
loss, expense or liability reasonably sustained or
incurred by the Facility Agent as a result of
payment of that amount before receiving it.
The rights of the Facility Agent under this clause 15.9
do not limit or affect any other rights of the Facility
Agent or the Banks under any Transaction Document.
15.10 Rounding
In making any payment under this Agreement, the Facility
Agent may round amounts to the nearest Dollar.
16. TAXES
16.1 No deduction for Taxes and no set-off or counterclaim
All payments by the Borrower under any Transaction
Document, whether of principal, interest or other amounts
must be made:
(a) free of any set-off or counterclaim; and
(b) without deduction or withholding for any
present or future Taxes, unless the Borrower is
compelled by law to deduct or withhold the same.
16.2 Payment net of Taxes
If:
(a) the Borrower is legally obliged to make any
deduction or withholding for or on account of
Taxes;
(b) the Facility Agent is legally obliged to make
any deduction or withholding on account of Taxes
from any payment to a Bank; or
(c) a Bank or the Facility Agent is obliged to
pay any Taxes (other than Excluded Taxes) in
respect of a payment made or to be made by the
Borrower under any Transaction Document;
then the Borrower must:
(d) within 5 Business Days of a demand by the
Facility Agent pay to the Facility Agent such
additional amounts, by way of additional interest,
as may be necessary to ensure that the Facility
Agent or the relevant Bank receives when due a net
amount (after payment of any Taxes, other than
Excluded Taxes) equal to the full amount which it
would have been entitled to receive and retain if
the deduction or withholding had not been made,
the relevant payment had been free and clear of
Taxes, or the Facility Agent or that Bank had not
been obliged to pay any Taxes in respect of the
payment; and
(e) in the case of paragraph (a):
(i) pay to the appropriate
Government Body any amount deducted or
withheld in respect of Taxes within the
time permitted for payment; and
(ii) within 30 days after making the
payment provide to the Facility Agent
evidence satisfactory to it of that payment
having been made.
16.3 Termination
If the Borrower fails to comply with the provisions of
clause 16.2 in relation to a Bank, that Bank may by
notice to the Borrower terminate its obligations under
this Agreement notwithstanding that any obligation of the
Borrower under clause 16.2 may be void, voidable or
unenforceable. Upon such a notice being given:
(a) the Borrower must immediately prepay the
relevant Bank's participation in all Utilisations
together with accrued interest thereon and all
other money payable under this Agreement to the
Bank; and
(b) the Commitment in respect of each Facility in
which that Bank is a participant will be
permanently cancelled in full.
16.4 Tax Credits
If the Borrower is obliged to pay any additional amount
pursuant to clause 16.2, and the Facility Agent or a Bank
(the "recipient"), acting in good faith and in its
reasonable opinion:
(a) receives or is able to apply or otherwise to
take advantage of any offsetting tax credit,
rebate or other similar tax benefit arising out of
the deduction or withholding giving rise to the
obligations of the Borrower to pay such additional
amount; and
(b) is able to identify the amount of that tax
credit, rebate or benefit,
the recipient must:
(c) give notice thereof to the Borrower;
(d) if not already obtained, take such steps as
it may, acting in good faith, determine to obtain
that credit, rebate or benefit; and
(e) upon receipt of any such credit, rebate or
benefit, reimburse to the Borrower the amount
thereof as it, in its reasonable opinion,
identifies as being allocable to the relevant
deduction or withholding.
16.5 No Disclosure of Tax Affairs
Nothing in clause 16.4 requires any Bank or the Facility
Agent to:
(a) disclose to the Facility Agent or the
Borrower any information regarding its tax
affairs; or
(b) arrange its tax and other affairs in a
particular manner.
16.6 Right to Prepay Individual Bank
If the Borrower is or would be obliged under clause 16.2
to pay any additional amounts to a Bank, the Borrower
may, provided that no Event of Default or Potential Event
of Default has occurred and is continuing unremedied, by
not less than 10 Business Days prior written notice to
the Facility Agent:
(a) prepay the whole (but not part) of the then
outstanding amount of that Bank's Share of the
outstanding Utilisations made by it, together with
all accrued interest and other amounts accrued on
those participations and all other amounts payable
to that Bank under the Transaction Documents; and
(b) cancel the Commitment of that Bank in respect
of each Facility in which that Bank is a
participant in full (but not in part).
17. ILLEGALITY
If any change after the date of this Agreement in any
applicable law, regulation, treaty or official directive
or in the interpretation or administration thereof by any
relevant Government Body makes it unlawful or impossible
for a Bank to maintain or give effect to its obligations
under any Transaction Document:
(a) that Bank's obligations under this Agreement
will be suspended immediately for the duration of
such illegality or impossibility;
(b) that Bank may by notice to the Borrower
terminate its obligations under this Agreement,
whereupon the Commitment of that Bank in respect
of each Facility in which that Bank is a
participant will be permanently cancelled in full;
(c) if required by or as a result of the
applicable event, or if necessary to prevent or
remedy a breach of, or to comply with, any
applicable law, regulation, treaty or official
directive, the Borrower must prepay an amount
equal to the Bank's participation in all
Utilisations together with all interest accrued
thereon and other amounts payable to the Bank
under this Agreement in full immediately, or if
delay in prepayment does not compound such breach
or affect such compliance, within such period as
is required by the applicable law, regulation,
treaty or official directive; and
(d) the Borrower must indemnify the Bank and keep
it indemnified against any cost, loss, damage or
expense suffered, incurred or payable by it as a
direct result of the operation of this clause 17.
For the avoidance of doubt (but without limiting
clause 24(d)), the Borrower's liability under this
paragraph (d) does not extend to loss of profits
which the relevant Bank would have made but for
the cancellation of its Commitment or any
prepayment under paragraph (c), or any other
indirect costs, losses, damages or expenses.
18. INCREASED COST
18.1 Obligation to Indemnify
(a) If by reason of any change after the date of
this Agreement (other than a change which has been
proclaimed or otherwise officially announced by a
competent Government Body to come into effect on a
specified date after the date of this Agreement)
in law or in its interpretation or administration
by any competent Government Body or by reason of
compliance with any request from or requirement of
any competent fiscal, monetary or other authority:
(i) a Bank incurs a cost as a
result of its having entered into or
performed its obligations under any
Facility or as a result of any Utilisation
being outstanding;
(ii) there is any increase in the
cost to a Bank of funding or maintaining
its Commitments or any Utilisation made or
to be made;
(iii) the amount of principal,
interest or other amount payable to a Bank,
or the effective return to a Bank in
respect of its Commitments or its
participation in any Utilisation, or the
anticipated rate of return at the date of
this Agreement on the Bank's overall
capital is reduced; or
(iv) a Bank becomes liable to make
any payment (not being a payment of an
Excluded Tax) on or calculated by reference
to the amount of its Commitments or its
participation in any Utilisation,
then from time to time on notification by the
Bank the Borrower must pay to that Bank such
amount as is necessary to compensate that Bank for
the effect of that cost, increased cost, reduction
or liability.
(b) If a Bank has acted in good faith it is no
defence that any such cost, increased cost,
reduction or liability could have been avoided.
(c) A Bank's certificate as to the amount of, and
basis for arriving at, any such cost, increased
cost, reduction or liability is evidence of the
matters stated in it unless proved by the Borrower
to the contrary.
(d) In the case of requests from or requirements
of any competent fiscal, monetary or other
authority which do not have the force of law, the
previous paragraphs of this clause 18.1 only apply
where:
(i) it is the practice of
responsible bankers or financial
institutions in the country concerned to
comply with them;
(ii) the Bank complying with them
does so in good faith; and
(iii) the claim of that Bank under
this clause does not arise because that
Bank has treated the Borrower or the
Facilities differently to similar customers
of that Bank generally, or similar
facilities made available to similar
customers generally.
Nothing in this clause requires the Borrower
to indemnify or compensate a Bank in respect of
any Excluded Tax.
18.2 Right to Prepay Individual Bank
If and for so long as clause 18.1 applies in relation to
a Bank, the Borrower may, provided that no Event of
Default or Potential Event of Default has occurred and
continues unremedied, upon giving not less than 10
Business Days' notice to that Bank prepay the whole (but
not part only) of that Bank's Share in the outstanding
Utilisations made by it, together with all accrued
interest and all other amounts payable to that Bank under
or in respect of the Transaction Documents.
19. MITIGATION
19.1 Mitigation
If circumstances arise in relation to any Bank which will
result in the operation of any of clauses 16, 17 or 18 to
the detriment of the Borrower, that Bank must promptly
upon becoming aware of the circumstances:
(a) notify the Facility Agent and the Borrower,
giving reasonable details of such circumstances
(including details of the calculation of any
relevant amount);
(b) if it receives a written request from the
Borrower, enter into discussions with the Borrower
with a view to determining what mitigating action
might be taken by that Bank, such as (for example)
changing its lending office, or the method of
funding its Commitments, or transferring its
participation in the Facilities and its
Commitments to another bank or financial
institution; and
(c) if that Bank is the Issuing Bank, promptly
commence negotiations with the Facility Agent and
VPX for the Return of all VPX Guarantees
outstanding, and the replacement of those VPX
Guarantees by a substitute Issuing Bank or the
Facility Agent on behalf of the VPX Guarantee
Banks.
19.2 No Liability for Banks
Nothing in clause 19.1 obliges any Bank or the Facility
Agent to:
(a) take any mitigating action unless it agrees
to do so;
(b) incur any costs or expenses (other than costs
and expenses referred to in clause 19.3) in
investigating what mitigating action might be
taken;
(c) disclose to the Facility Agent or the
Borrower any confidential information regarding
its business affairs; or
(d) arrange its business affairs in a particular
manner.
19.3 Costs and Expenses
Any costs and expenses reasonably incurred by any Bank or
the Facility Agent in investigating what mitigating
action might be taken following a request from the
Borrower pursuant to clause 19.1(b) must be paid by the
Borrower within 5 Business Days after receipt of a demand
specifying the same in reasonable detail.
20. REPRESENTATIONS AND WARRANTIES
20.1 General representations and warranties
The Borrower hereby represents and warrants to the
Facility Agent, the Security Trustee, each Bank and the
Arranger that except to the extent disclosed in the
Disclosure Letter:
(a) (Legally binding obligation): each
Transaction Document constitutes a valid and
legally binding obligation of the Borrower,
enforceable in accordance with its terms except to
the extent that enforcement may be limited by
generally applicable principles of law or equity;
(b) (Execution, delivery and performance): the
execution, delivery and performance of each
Transaction Document does not violate:
(i) any existing law or regulation;
or
(ii) any document or agreement to
which the Borrower is a party or which is
binding upon it or any of its assets, where
violation would have a Material Adverse
Effect;
(c) (Authorisation): all consents, licences,
approvals and authorisations of every Government
Body have been obtained and are valid and
subsisting which are:
(i) required to be obtained by the
Borrower in connection with the execution,
delivery and performance of each
Transaction Document;
(ii) required for the lawful conduct
of its business where failure to obtain or
hold the same would have a Material Adverse
Effect;
(d) (No litigation): no litigation, arbitration,
criminal or administrative proceedings are
current, pending or, to the knowledge of the
Borrower, threatened which
(i) if adversely determined, would
have a Material Adverse Effect; and
(ii) in the reasonable opinion of
the Borrower, having regard to any advice
which it has obtained, or which it obtains
pursuant to clause 21.3(v), are likely to
be adversely determined;
(e) (No Default): no event has occurred which
constitutes an Event of Default or Potential Event
of Default;
(f) (Laws): the Borrower has complied with all
statutes, regulations, licences, consents and
authorisations applicable to it and the businesses
carried on by it, failure to comply with which
would have a Material Adverse Effect;
(g) (Title): all Security Property is free and
clear of all Encumbrances other than:
(i) Permitted Encumbrances; and
(ii) Encumbrances subsisting at the
date of this Agreement, the existence of
which is not known to the Borrower as at
the date of this Agreement, provided that
such Encumbrances do not secure amounts
outstanding (actually or contingently) in
aggregate exceeding $10,000,000 and are
discharged within 90 days after the date of
this Agreement;
(h) (Licences): each of the Licences is in full
force and effect, has not been cancelled, revoked,
or suspended and the Borrower is not aware of any
breach of any of the conditions of either of the
Licences or aware of any fact or circumstance
which may cause either of the Licences to be
suspended, revoked or cancelled prior to its
normal expiry date (other than technical breaches
referred to in clause 21.3(m)); and
(i) (Material Documents): each of the Material
Documents is in full force and effect and it is
not aware of any breach by it of any material term
of any Material Documents to which it is a party
nor, (to the best of its knowledge) is any other
party thereto in breach of any material term of
any Material Document.
20.2 Information representations and warranties
The Borrower hereby represents and warrants to the
Facility Agent, the Security Trustee, each Bank and the
Arranger that except to the extent disclosed in the
Disclosure Letter:
(a) (Information): to the best of its knowledge
and belief, all information disclosed in the
documents specified in the Schedule to the
Disclosure Letter was at the time it was provided
true in all material respects and was not at that
time, by omission or otherwise, misleading in any
material respect;
(b) (Information Memorandum): to the best of its
knowledge and belief, all material factual
information contained in the Information
Memorandum and provided by it, or for which it is
stated in the Information Memorandum to be
responsible, is true in all material respects at
the date as at which the Information Memorandum
was prepared, all material expressions of opinion
or intention and all material forecasts and
projections contained in the Information
Memorandum were arrived at after due consideration
and were based on reasonable grounds, and the
Information Memorandum as of its date was not
misleading in any material respect (whether by
omission or otherwise);
(c) (Model): to the best of its knowledge and
belief, all material factual information contained
in the Model is true in all material respects at
the date (if any) ascribed thereto in the Model or
(if none) at the date of the Model, all material
expressions of opinion or intention and all
material forecasts and projections contained in
the Model were arrived at after due consideration
and were based on reasonable grounds, and the
Model is not misleading in any material respect
(whether by omission or otherwise); and
(d) (Subsequent Events): so far as it is aware,
reasonable enquiry having been made, since the
date as at which the Information Memorandum and
the Model were prepared, nothing has occurred or
come to light which renders any of the material
information, expressions of opinion or intention,
projections or conclusions referred to in
paragraphs (b) or (c) inaccurate or misleading (or
in the case of expressions of opinion, conclusions
or projections, other than fair and reasonable) in
any material respect in the context of the
transactions contemplated by the Transaction
Documents and the Material Documents.
20.3 Corporate representations and warranties
The Borrower represents and warrants to the Facility
Agent, the Security Trustee, each Bank and the Arranger
that:
(a) (Due incorporation): it is duly incorporated
and has the corporate power to own its own
property and to carry on its own business as is
now being conducted;
(b) (Memorandum and Articles): the execution,
delivery and performance of each Transaction
Document to which it is a party does not violate
its Memorandum and Articles of Association; and
(c) (Corporate power): it has the power, and has
taken all corporate and other action required, to
enter into any Transaction Document to which it is
a party and to authorise the execution and
delivery thereof and the performance of its
obligations thereunder.
20.4 The CitiPower Trust Representations and Warranties
The Borrower represents and warrants to the Facility
Agent, the Security Trustee, each Bank and the Arranger
that:
(a) (Trustee): it enters into each Transaction
Document in its capacity as trustee of The
CitiPower Trust;
(b) (Trust validly created): The CitiPower Trust
has been validly created and is in existence at
the date of this Agreement;
(c) (Trust power): it has power under the Trust
Deed to enter into, perform and comply with all
its obligations, and to carry out the transactions
contemplated by the Transaction Documents;
(d) (Trust Deed): the Trust Deed and the
Declaration of Trust are as at the date of this
Agreement, the only documents setting out the
terms of The CitiPower Trust, and it has not been
amended, supplemented or varied;
(e) (Sole Trustee): it has been validly appointed
as trustee of The CitiPower Trust and is presently
the sole trustee of The CitiPower Trust;
(f) (No vesting): it is not aware of the
occurrence of the vesting of The CitiPower Trust
or any other event which would cause The CitiPower
Trust to terminate; and
(g) (Unitholders): the Unitholders are the only
persons with any beneficial interest in The
CitiPower Trust.
20.5 Representations and warranties repeated
Each representation and warranty contained in clauses
20.1 (other than paragraph (i)), 20.3 and 20.4 (other
than paragraphs (e) and (g)) shall be deemed to be
repeated on the giving of each Utilisation Notice and
each Utilisation Date with reference to the facts and
circumstances then subsisting, as if made on each such
date.
21. UNDERTAKINGS
21.1 Duration and Benefit
The undertakings in this Agreement are given for the
benefit of the Facility Agent and each Bank and shall
remain in force so long as any amount is or may be
outstanding under this Agreement or any Commitment is in
force.
21.2 Information
(a) (Financial information): The Borrower must
deliver to the Facility Agent:
(i) as soon as practicable and in
any event not later than 90 days after the
close of each of its financial years:
(A) a copy of the
audited consolidated Financial
Statements for each of The CitiPower
Trust and CitiPower Ltd in its
personal capacity for that year
audited by the Approved Auditors;
and
(B) a certificate of
the Approved Auditors as to
compliance by the Borrower with
clause 22;
(ii) as soon as practicable and in
any event not later than 60 days after the
end of each calendar quarter (including the
last Quarter of a financial year):
(A) a copy of the
consolidated unaudited Financial
Statements of The CitiPower Trust
for that calendar quarter certified
as correct by the chief financial
officer of the Borrower;
(B) in the case of
each calendar quarter ending on or
after 30 September 1996, a
certificate by the chief financial
officer of the Borrower as to
compliance by the Borrower with
clause 22 (other than clause 22.2),
and setting out in the case of the
first such certificate, calculations
of Historical DSCR as at the end of
the first Quarter; and
(C) in the case of
the final Quarter of each financial
year, a certificate by the chief
financial officer of the Borrower as
to compliance with clause 22.2;
(iii) promptly such further
information regarding its financial
condition and business operations as the
Facility Agent may from time to time
reasonably require.
Each certificate to be delivered under this
paragraph (a) as to compliance by the Borrower
with clause 22 must set out in such detail as the
Facility Agent may reasonably require calculations
of the financial ratios and undertakings required
to be achieved or maintained under that clause.
(b) (Unconsolidated accounts): The Borrower must
ensure that each Financial Statement of the Trust
delivered under this Agreement which discloses the
consolidated financial condition and results of
the operations of more than one entity, is
accompanied by an unaudited unconsolidated balance
sheet and trading and profit and loss account for
each such entity that complies with all other
requirements of this Agreement in relation to
Financial Statements;
(c) (Compliance with accounting standards): The
Borrower must ensure that all Financial Statements
delivered in accordance with this Agreement are
prepared in accordance with its Articles of
Association, the Corporations Law, any applicable
statute and all accounting principles and
practices generally accepted in Australia
consistently applied, or if not consistently
applied, accompanied by details of the
inconsistencies, and shall give a true and fair
view of its financial condition and the result of
its operations as at the date, and for the period
ending on the date, to which the Financial
Statements are prepared;
(d) (Projections): The Borrower must deliver to
the Facility Agent not later than 31 March in each
financial year, projected Financial Statements of
The CitiPower Trust for each of, or in the case of
a balance sheet as at the end of each of, the next
15 financial years, in each case calculated and
presented in accordance with the Model;
(e) (Provision of further information): The
Borrower must:
(i) (Special resolutions): deliver
to the Facility Agent not later than 7 days
before the date of the relevant meeting, a
copy of any notice calling an extraordinary
general meeting of the Borrower or
proposing any special or extraordinary
resolution at a meeting of the Borrower;
(ii) (Reports to members etc.): at
any time while it or its shares or
securities are listed on any stock
exchange, deliver to the Facility Agent
contemporaneously with the issue thereof a
copy of all reports, accounts, notices and
circulars issued by it to any of its
members or to any such stock exchange; and
(iii) (Certificate of default):
whenever it is obliged to deliver Financial
Statements to the Facility Agent under
paragraph (a), deliver to the Facility
Agent a certificate of the chief financial
officer of the Borrower stating to the best
of his knowledge whether or not an Event of
Default or a Potential Event of Default has
occurred and, if it has, setting out
details thereof and the steps (if any)
taken to remedy the same; and
(f) (Notification of certain events): The
Borrower must immediately notify the Facility
Agent in writing as soon as it becomes aware of
the occurrence of:
(i) (Event of Default): any Event
of Default or Potential Event of Default;
and
(ii) (Authorised Officers): any
change in its Authorised Officers.
(g) (Copies of Documents): The Borrower must
ensure that any copy of any document delivered to
the Facility Agent in accordance with this clause
21.2 is accompanied by a sufficient number of
copies of that document to enable the Facility
Agent to distribute one copy to each Bank.
21.3 General Undertakings
The Borrower must:
(a) (Encumbrances): not create, permit or suffer
to exist any Encumbrance over all or any of its
assets except for:
(i) the Security Documents;
(ii) liens arising by operation of
law in the ordinary course of business and
securing obligations not more than 30 days
overdue;
(iii) a banker's lien or right of set-
off or combination arising by operation of
law or practice over property or money
deposited with a banker in the ordinary
course of its ordinary business;
(iv) arrangements constituted by
retention of title in connection with the
acquisition of goods provided the goods are
acquired in the ordinary course of the
Borrower's business on the normal
commercial terms of the vendor;
(v) an Encumbrance over any asset
acquired after the date of this Agreement
where the Encumbrance was in existence at
the date of acquisition and was not created
in contemplation of acquisition, and which
is discharged within 180 days after
acquisition, or if not so discharged, the
Borrower establishes to the satisfaction of
the Facility Agent (acting on the
instructions of the Majority Banks) that:
(A) such discharge is
impossible or impracticable because
of the requirements of any
applicable law; and
(B) that the
continued existence of such
Encumbrance would not have, or be
likely to have, a Material Adverse
Effect;
(vi) an Encumbrance over any asset
acquired by the Borrower after the date of
this Agreement where such an Encumbrance is
created for the sole purpose of securing
indebtedness raised to finance or re-
finance that acquisition or the development
of that asset, where the amount secured is
equal to the purchase price or development
costs of such asset plus any interest or
other costs and charges payable in respect
of any borrowing to finance that price or
cost, and where the recourse of the holder
of such Encumbrance against the Borrower in
respect of the moneys secured thereby is
limited to the proceeds of enforcement of
such Encumbrance. The Banks agree that
Encumbrances created or permitted to exist
under this paragraph will rank in priority
to the Encumbrances created under the
Security Documents without the requirement
for a priority deed to be first entered
into by the Security Trustee and the
proposed holders of such Encumbrance unless
those Encumbrances are registered or are
capable of being registered upon any public
register, in which case, the Banks will
enter, or will authorise the Facility Agent
or the Security Trustee on their behalf,
upon reasonable request by the Borrower
and, upon payment by the Borrower of any
costs and expenses payable in connection
therewith under clause 28.1(a), to enter
into a priority deed in such form as the
Borrower may reasonably require to give
effect to that ranking;
(vii) Encumbrances arising by
operation of statute in favour of any
Government Body;
(viii) Encumbrances the existence of
which is being contested in good faith by
appropriate legal proceedings; and
(ix) Encumbrances (other than those
referred to in sub-paragraphs (i)-(viii))
where the aggregate of the amount secured
by those Encumbrances does not exceed
$20,000,000 at any time;
(b) (Transactions similar to security): not
without the prior written consent of the Facility
Agent acting on the instructions of the Majority
Banks:
(i) sell or otherwise dispose of
any of its assets in contemplation of such
asset being leased to or re-acquired by it
or any of its Related Bodies Corporate; or
(ii) securitise or sell or otherwise
dispose of any of its receivables.
The Facility Agent and the Banks must upon
request by the Borrower, consult with the Borrower
in good faith as to the basis and conditions upon
which the Facility Agent acting on the
instructions of the Majority Banks may consent to
any disposal or securitisation referred to in this
paragraph (b). However, nothing in this paragraph
(b) obliges any Bank to grant its consent to any
such disposal or securitisation, and each Bank may
grant or withhold such consent in its absolute
discretion;
(c) (Disposals): not, either in a single
transaction or in a series of transactions whether
related or not, sell, transfer, lease or otherwise
dispose of any assets or undertaking, other than:
(i) disposals of assets in the
ordinary course of the Borrower's business
on arm's-length terms and at fair market
value;
(ii) disposals of surplus, obsolete
or redundant plant and equipment, or of
land or buildings not required for the
efficient operation of its business, on
arm's length terms and at fair market
value;
(iii) the expenditure of cash in the
course of its business carried on in
compliance with the terms of this
Agreement; and
(iv) disposals of assets not
otherwise permitted under this paragraph
(c) provided that the aggregate fair market
value of the assets disposed of during any
financial year does not exceed $5,000,000;
(d) (Interest Rate Hedging): at all times after
31 March 1996, enter into and maintain Permitted
Derivatives with one or more Medium Term Banks (or
their Related Bodies Corporate) having the effect
of providing for a maximum or fixed interest rate
payable in respect of an amount of Utilisations
under the Medium Term Facilities equal to not less
than 75% and not more than 100% of the Facility
Commitments for the Medium Term Facility. Each of
the Facility Agent and the Arranger must negotiate
with the Borrower in good faith to agree the form
of Approved ISDA Document as soon as reasonably
practicable following execution of this Agreement;
(e) (Power Purchase Hedging): at all times after
30 June 1996, ensure that it enters into and
maintains Hedge Agreements for the purchase by it
during each immediately following period of 12
months up to the Expiry Date of the Medium Term
Facilities of at least 80% of those projected
wholesale electricity purchases bought for the
purpose of supplying customers under fixed price
tariffs and fixed price contracts for that period;
(f) (Dividends): not declare, make or pay any
dividend or other distribution (whether in cash or
in kind) on or in respect of its share capital or
the Units, otherwise than as permitted by clause
11;
(g) (Capital Reduction): not redeem, repurchase
or reduce any of its share capital or any Units,
otherwise than as permitted by clause 11;
(h) (Environmental Liability): indemnify the
Facility Agent, the Security Trustee, each Bank,
each receiver appointed under any Security
Document and their respective officers, employees,
agents and delegates (together the "Indemnified
Parties") against any cost or expense suffered or
incurred by them as a result of being a party to
or having the benefit of any Transaction Document,
or exercising any right or power under any
Transaction Document (except if caused by their
own negligence or misconduct) which:
(i) arises by virtue of any actual
or alleged breach of any Environmental Law
(whether by the Borrower or any other
person); or
(ii) arises by virtue of the release
or threatened release of, or exposure to,
any dangerous substance stored or handled
upon, transported from, or otherwise
associated with the facilities or
operations of the Borrower;
(i) (Insurance): insure and keep insured all its
property and assets of an insurable nature and
which are customarily insured (either generally or
by companies carrying on a similar business) and
maintain insurances against such other risks as
are customarily insured against (either generally
or by companies carrying on a similar business),
in each case as the Facility Agent may from time
to time reasonably require (having regard to
customary industry practice), and in such amounts
and on such terms as are commercially available
and that the Facility Agent may approve on the
instructions of the Majority Banks (such approval
not to be unreasonably withheld, delayed or
conditioned). The insurances maintained by the
Borrower as at the date of this Agreement are set
out in Schedule 11. The Facility Agent and the
Banks acknowledge that such insurances are
sufficient, as at the date of this Agreement, for
the Borrower to comply with this paragraph (i);
(j) (Policies): ensure that (except for public
liability insurances, directors' and officers'
liability and travel and personal injury
insurances) all of the insurance policies required
to be taken out and maintained by it pursuant to
paragraph (i) note the Security Trustee's interest
thereon;
(k) (Maintenance of Insurance): on request,
promptly supply to the Facility Agent certificates
of currency and a certified copy of, each
insurance policy required to be taken out and
maintained by it pursuant to paragraph (i) above
and ensure that the insurer under each such policy
undertakes to the Facility Agent to notify the
Facility Agent if any renewal premium or other sum
payable in respect of any such policy is not paid
when due;
(l) (Renew Licences): on or before the time and
in the manner prescribed by the relevant statute
for each Licence, apply for and procure the
renewal of that Licence, and pay or cause to be
paid the renewal fees and other sums required in
respect of that Licence or the renewal of the
Licence within the time allowed and in the manner
prescribed by the statute;
(m) (No cancellation of Licences): except for
technical breaches (which shall be any breaches
which in the reasonable opinion of the Facility
Agent acting on the instructions of the Majority
Banks are not likely to lead to termination of
either Licence) not allow or suffer any thing to
be done as a result of which any Licence is or may
be surrendered, forfeited, withdrawn, cancelled or
rendered void, or whereby it is disqualified
permanently or temporarily from receiving or
continuing to hold any Licence, provided that if
the Borrower provides the Facility Agent with a
letter from the relevant regulatory authority
indicating that it will not take any enforcement
action against the Borrower in respect of a
particular breach, such breach shall be deemed to
be a technical breach only;
(n) (No transfer): not surrender or transfer any
Licence;
(o) (Notice) promptly notify the Facility Agent
if any Government Body issues any notice in
respect of a material breach of a Licence, which
notice threatens to suspend or cancel a Licence;
(p) (Material Documents): comply with its
obligations under the Material Documents, and not
without the prior written consent of the Facility
Agent acting on the instructions of the Majority
Banks (such consent not to be unreasonably
withheld, delayed or conditioned and not to be
withheld, delayed or conditioned in the case of
sub-paragraph (i) of this paragraph in relation to
amendments or modifications necessary or desirable
for the purposes of Tax laws in the United States
of America or the Cayman Islands or the sale of
interests in The CitiPower Trust):
(i) make any material amendment or
modification to any Material Document or
waive compliance with any material
provision of any Material Document;
(ii) terminate, repudiate, rescind
or revoke any Material Document;
(iii) take or fail to take any action
which could result in the termination of
any Material Document; or
(iv) assign or novate its interest
in any Material Document or consent or
permit any other party to do the same
otherwise than as a result of a transfer of
Units;
(q) (Working Capital Facility): ensure that in
each period of 12 months (the first period
commencing on the date of this Agreement) there is
a period or periods in aggregate of not less than
10 days during which there are no Advances
outstanding under the Working Capital Facility;
(r) (Maintenance of Business): ensure that at all
times the business carried on by it is the
distribution and sale of electricity and other
activities reasonably related thereto (including
without limitation the provision of engineering
and construction services to third parties);
(s) (Trust Assets): ensure that all business
engaged in by it is engaged in its capacity as
trustee of The CitiPower Trust and that all of its
assets (other than the Excluded Assets) are held
upon and subject to the terms of the Trust Deed as
assets of The CitiPower Trust;
(t) (Amendments to Material Documents): deliver
to the Facility Agent a certified copy of any
document amending, varying or replacing any
Material Document or any Licence within 10
Business Days after that document is entered into;
(u) (Notify Litigation): notify the Facility
Agent promptly upon becoming aware of any
litigation, arbitration, criminal or
administrative proceedings which, if adversely
determined, would have a Material Adverse Effect;
and
(v) (Consult re Litigation): following the giving
of a notice under paragraph (u), upon reasonable
request by the Facility Agent:
(i) consult with the Facility Agent
as to the nature of the relevant
proceedings and the likelihood of them
being adversely determined; and
(ii) obtain such legal advice as the
Facility Agent may reasonably require as to
the potential consequences of the
proceedings and the likelihood of them
being adversely determined; and
(w) (Hedge Agreements): not enter into any Hedge
Agreements other than Permitted Derivatives
entered into pursuant to paragraphs (d) and Hedge
Agreements entered into pursuant to paragraph (e).
22. FINANCIAL UNDERTAKINGS
22.1 Historical DSCR and Support Letter of Credit
(a) The Borrower must ensure that, as at the end
of each Quarter ending on or after 30 September
1996 and before 31 March 1997, Historical DSCR is
not less than 1.20:1.00.
(b) The Borrower must ensure that, as at the end
of each Quarter ending on or after 31 March 1997
and before 30 September 1997, Historical DSCR is
not less than 1.25:1.00.
(c) The Borrower must ensure that, as at the end
of each Quarter ending on or after 30 September
1997, Historical DSCR is not less than 1.30:1.00.
(d) Historical DSCR in relation to a Quarter must
be calculated and the calculation delivered to the
Facility Agent in accordance with clause
21.2(a)(ii)(B) and, in the case of the final
Quarter of each financial year, clause
21.2(a)(i)(B).
(e) If at any time the Borrower is obliged under
clause 9.4 to procure the issue of a replacement
Support Letter of Credit, and the Required Support
LC Amount is such that the aggregate of the Face
Amount of the Support Letter of Credit and the
Face Amount of the Entergy Undertaking is less
than 115% of the Required Support LC Amount, the
Borrower must, within 30 days of demand by the
Facility Agent, either:
(i) agree an amendment to the
Required Entergy Undertaking Amount and
procure the issue of an amended or
replacement Entergy Undertaking such that
the Equivalent on the date of issue of the
aggregate of the Face Amount of the Support
Letter of Credit and the Face Amount of the
Entergy Undertaking is not less than 115%
of the Required Support LC Amount; or
(ii) procure the issue of a
replacement Support Letter of Credit such
that that is the case.
(f) If:
(i) the Expiry Date of the Support
Letter of Credit is before the Expiry Date
of the Medium Term Facilities; and
(ii) the Required Support Letter LC
Amount is greater than zero,
then the Borrower must procure that, no later
than the date which is five Business Days before
the Expiry Date then current, either:
(iii) the issuer of the Support
Letter of Credit extends the Expiry Date of
the Support Letter of Credit to a date
which is not earlier than 6 months after
the Expiry Date then current; or
(iv) a substitute Support Letter of
Credit is issued to the Facility Agent in
accordance with clause 9.1.
22.2 Future DSCR
(a) The Borrower must ensure that, as at the end
of each financial year up to and including the
financial year ending on 31 December 1996, Future
DSCR is not less than 1.15:1.00.
(b) The Borrower must ensure that, as at the end
of the financial year ending on 31 December 1997,
Future DSCR is not less than 1.175:1.00.
(c) The Borrower must ensure that, as at the end
of the financial year ending on 31 December 1998,
Future DSCR is not less than 1.20:1.00.
(d) The Borrower must ensure that, as at the end
of each financial year ending after 31 December
1998, Future DSCR is not less than 1.225:1.00.
(e) For the purposes of this clause 22.2, Future
DSCR will be calculated and the calculation
delivered to the Facility Agent upon execution of
this Agreement and will only be required to be
recalculated as at 31 December in each subsequent
year and the calculation delivered to the Facility
Agent in accordance with clause 21.2(a)(i)(B) and
clause 21.2(a)(ii)(C).
22.3 Gearing Ratio
(a) The Borrower must ensure that, at all times,
the Gearing Ratio does not exceed 70%.
(b) The Gearing Ratio must be calculated as at
the end of each Quarter and the calculation
delivered to the Facility Agent in accordance with
clause 21.2(a)(ii)(B) and in the case of the final
Quarter of each financial year, clause
21.2(a)(i)(B).
22.4 Total Debt
The Borrower must ensure that Total Debt does not at any
time exceed the aggregate of the aggregate of all
Facility Commitments plus $20,000,000.
22.5 Verification of Model
Before the first Utilisation Notice is given, the initial
agreed form of the Model, and subsequently, each
calculation of Future DSCR, must be verified and the
assumptions made in determining that calculation must be
reviewed for reasonableness (and confirmed in writing to
the Facility Agent, or in the case of the first
Utilisation Notice, the Arranger, to be reasonable) by an
independent firm of chartered accountants of
international standing appointed by the Borrower with the
consent of the Arranger or the Facility Agent (as the
case may be) (such consent not to be unreasonably
withheld, conditioned or delayed).
23. DEFAULT AND TERMINATION
23.1 Events of Default
Each of the following events is an Event of Default
(irrespective of how caused) for the purposes of this
Agreement, the Security Trust Deed and the Charge:
(a) (Failure to pay): the Borrower does not pay
within 5 Business Days after the due time on the
due date and in the specified manner, any amount
payable by it under any Transaction Document;
(b) (Financial Ratios): the Borrower breaches:
(i) any of the financial
undertakings contained in clause 22, other
than clauses 22.1(e) or (f), and 22.5, and
in the case of a breach of clause 22.1, the
breach is not waived before the expiry of
the period specified for consultation under
clause 23.5; or
(ii) (without limiting clause 9.2)
the Borrower breaches any of the financial
undertakings contained in clause 22.2 and
does not:
(A) within 45 days
after calculation of the Future DSCR
in accordance with clause 22.2(e),
present a plan or program for remedy
of the breach (such plan or program
to be approved by the Facility Agent
acting on the instructions of the
Majority Banks, such approval not to
be unreasonably withheld, delayed or
conditioned); and
(B) remedy such
breach within 180 days after such
calculation, or such other period as
the Facility Agent acting on the
instructions of the Majority Banks
may agree, such agreement not to be
unreasonably withheld, delayed or
conditioned;
(c) (Failure to comply): the Borrower defaults in
fully performing, observing and fulfilling any of
its obligations under any Transaction Document
other than a default which falls within paragraphs
(a) or (b), and, if that default is capable of
remedy, does not remedy the same within 30 days
after notice from the Facility Agent requiring
such default to be remedied;
(d) (Untrue warranty): any representation or
warranty made, repeated or deemed to be made or
repeated in any Transaction Document is untrue
when made, repeated or deemed to be made or
repeated (as the case may be);
(e) (Breach of undertaking): the Borrower
breaches any undertaking (not contained in a
Transaction Document) given to the Banks or the
Facility Agent in connection with, or fails to
comply with any condition imposed by the Banks or
the Facility Agent in agreeing to, any matter
(including any waiver) in connection with this
Agreement (and not contained in a Transaction
Document), and such breach or failure is not
remedied within 14 days after notice from the
Facility Agent requiring it to be remedied;
(f) (Event of Default under other Transaction
Documents): any event occurs which is defined as
or specifically agreed to be an event of default
under or for the purposes of any other Transaction
Document;
(g) (Cross Default): any Borrowing of the
Borrower of an aggregate amount exceeding
$5,000,000 becomes prematurely due and payable as
a result of an event of default (howsoever
described) applicable to that Borrowing;
(h) (Event of Insolvency): any Event of
Insolvency occurs in relation to the Borrower or
The CitiPower Trust;
(i) (Investigation): an investigation into the
affairs or particular affairs of a Borrower is
directed or commenced under the Corporations Law;
(j) (Cessation of business): the Borrower ceases,
or threatens to cease, to carry on all or a
substantial part of its business;
(k) (Void or voidable): any Transaction Document
(other than the Deed of Covenant) is or becomes
void, voidable or otherwise unenforceable
(otherwise than against the Facility Agent or any
Bank and, in the case of the Deed of Covenant, any
party to that deed other than the Borrower or the
Unitholders) in whole or in material part except
to the extent that a legal opinion delivered
pursuant to clause 3.1(n) states that such
Transaction Document (or any provision thereof)
may be void, voidable or otherwise unenforceable;
(l) (Illegality): at any time it is unlawful for
the Borrower to perform any of its obligations
under any Transaction Document and such
unlawfulness has not been mitigated or avoided
pursuant to clause 19.1;
(m) (Change in control): without the prior
written consent of the Facility Agent acting on
the instructions of the Majority Banks, effective
control of the Borrower is altered from that
subsisting at the date of this Agreement. For the
purpose of this paragraph (m) "effective control"
means direct or indirect:
(i) control of the composition of
the Board of Directors of the Borrower;
(ii) control of more than half of
the voting power of the Borrower; or
(iii) control of more than half of
the issued share capital of the Borrower
excluding any part thereof which carries no
right to participate beyond a specified
amount in the distribution of either profit
or capital;
(n) (Material Document): any Material Document is
prematurely terminated or it becomes unlawful for
any party to a Material Document to perform its
material obligations under any Material Document;
(o) (Licences): any Licence or any other
authorisation, approval, consent, licence,
exemption, filing, registration or other
requirement necessary to enable the Borrower to
comply with any of its material obligations under
any Transaction Document or any Material Document,
or necessary for the conduct of all or a material
part of its business is revoked, refused, does not
remain in full force and effect in accordance with
its terms once granted, is not renewed prior to
its expiry or is modified in a manner which would
have a Material Adverse Effect;
(p) (Expropriation): all or a substantial part of
the assets or business of the Borrower is (or any
Government Body announces that it will be)
expropriated, nationalised or compulsorily
acquired, or its authority to conduct all or a
substantial part of its business is terminated or
materially curtailed by any Government Body;
(q) (Termination of CitiPower Trust): The
CitiPower Trust terminates or any event occurs
which causes The CitiPower Trust to vest;
(r) (Change of Trustee): the Borrower is not or
ceases to be the sole trustee of The CitiPower
Trust; and
(s) (Material change): any event or series of
events whether related or not occurs which has a
Material Adverse Effect.
23.2 Facility Agent's rights upon Event of Default
If an Event of Default occurs, at any time thereafter
while such Event of Default continues, the Facility Agent
may at its option and must if so directed by the Majority
Banks by written notice to the Company:
(a) declare the Total Commitments and any other
obligations of the Banks under this Agreement to
be cancelled immediately, whereupon the same shall
be so cancelled; and/or
(b) declare all Advances and all Drawdowns
together with all accrued interest and all other
amounts payable under or in respect of the
Transaction Documents to be, whereupon the same
shall become, immediately due and payable.
23.3 Effect of Termination
If the Termination Date occurs because the Facility Agent
gives a notice under clause 23.2, the Borrower must
immediately, without the need for any further notice or
demand (in addition to its obligations under clause
23.2):
(a) pay to the Facility Agent for the account of
the Banks for their own use and benefit (and not
by way of security) an amount equal to the
aggregate Face Amount of all Bills outstanding
under the Bill Facility; and
(b) either:
(i) procure that each VPX Guarantee
in respect of which the Expiry Date has not
already occurred is cancelled and Returned
to the Facility Agent; or
(ii) pay to the VPX Guarantee Banks
pro rata their respective Shares (or, in
the case of a VPX Guarantee issued by the
Issuing Bank, the Issuing Bank) for their
(or its) own use and benefit (and not by
way of security) an amount equal to the
aggregate maximum Face Amount at any time
prior to the Expiry Date of all VPX
Guarantees in respect of which the Expiry
Date has not already occurred.
23.4 Cash Cover
If the Borrower makes a Cash Cover Payment:
(a) each Bank must on the earlier of the date
upon which a VPX Guarantee is Returned and its
Expiry Date pay to the Borrower an amount (the
"refund amount") equal to:
(i) that Bank's Share of the amount
of the Cash Cover Payment made in respect
of that VPX Guarantee; minus
(ii) the aggregate amount of
Qualifying Claims made in respect of that
VPX Guarantee and which have not been
indemnified in accordance with clause 6.7;
plus
(iii) interest on the refund amount
calculated on a daily basis at that Bank's
rate for overnight or call deposits offered
to similar customers for deposits of
similar amounts; and
(b) the amount of any payment which subsequently
becomes due by the Borrower under clauses 6.7 or
7.7 in respect of a VPX Guarantee or any Bill
shall be reduced by the amount of the Cash Cover
Payment made in respect of that VPX Guarantee or
Bill.
23.5 Breach of Historical DSCR
If the Borrower breaches clause 22.1, the Facility Agent
and the Banks must upon request by the Borrower, consult
with the Borrower in good faith during the period of
10 days (or such longer period as the Facility Agent
acting on the instructions of the Majority Banks may
agree) immediately following the date of delivery of the
relevant calculation of Historical DSCR pursuant to
clause 22.1(d), as to the basis and conditions upon which
the breach may be waived by the Facility Agent acting on
the instructions of the Majority Banks. Nothing in this
clause 23.5 obliges any Bank to agree to a waiver of the
breach or limits the exercise by the Facility Agent and
the Banks of their rights under the Transaction Documents
upon the expiry of that 10 day period.
24. INDEMNITY
The Borrower must on demand by the Facility Agent
indemnify the Facility Agent, the Arranger, and each Bank
against any loss, cost or expense which it may sustain or
incur as a consequence of:
(a) any sum payable by the Borrower not being
paid when due;
(b) the occurrence of any Event of Default;
(c) a Utilisation requested in a Utilisation
Notice not being provided for any reason including
failure to fulfil any condition precedent but
excluding any default by the Facility Agent or any
Bank claiming an indemnity pursuant to this
paragraph;
(d) the Facility Agent or any Bank receiving
payments of or in respect of principal other than
on the last day of an Interest Period for any
reason, including, without limitation, prepayment
in accordance with a Transaction Document;
(e) any person bringing proceedings or otherwise
alleging that any relevant information is or was
misleading or deceptive or likely to mislead or
deceive contrary to the Trade Practices Act 1974
(Cth) or the equivalent State or Territory
legislation. For the purposes of this paragraph,
"relevant information" means any information:
(i) contained in the Information
Memorandum; or
(ii) expressly authorised by the
Borrower or a Due Diligence Team Member to
be distributed or made available in
connection with the arrangement of the
Facilities or the assignment, transfer or
sub-participation by any Bank of its rights
or rights and obligations under this
Agreement,
but excluding any information for which the
Arranger, the Facility Agent or the Banks are
stated in the Information Memorandum to be
responsible; or
(f) the execution, delivery or performance of any
Transaction Document being in violation of any
document or agreement to which the Borrower is a
party or which is binding upon it or any of its
assets.
Such losses, costs or expenses shall include the amount
determined in good faith by the Facility Agent, the
Arranger or the relevant Bank as being any loss, cost or
expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or
contracted for by that Bank to fund or maintain its
participation in any such Utilisation or other amount and
shall, in the case of prepayments referred to in
paragraph (d) above, be calculated as follows:
where:
B is the amount of the losses, costs or
expenses (if a positive number).
P is the principal amount of the Utilisation
prepaid.
C is the accrued interest paid on the date of
early redemption pursuant to clause 8.4(d).
D is the amount of interest which would have
been payable in respect of that Utilisation if the
prepayment had been made on the last day of the
Interest Period.
N is the number of days from the date of
prepayment to the last day of the relevant
Interest Period.
R is the Bill Rate for deposits of amounts
similar to the amount prepaid for a term of N days
minus 0.15%.
Any demand in respect of such losses, costs or expenses
shall specify in reasonable detail the circumstances and
basis upon which such amount has been determined.
25. FACILITY AGENT AND SECURITY TRUSTEE
25.1 Appointment
Subject to the terms of this Agreement, each Bank
appoints and authorises the Facility Agent to perform
such obligations as are specifically imposed upon the
Facility Agent by this Agreement and to exercise such
rights, powers and discretions as are specifically
delegated to the Facility Agent under this Agreement,
together with such rights, remedies, powers and
discretions as are reasonably incidental thereto. The
Facility Agent does not have any duties, obligations or
liabilities to the Banks or any of them beyond those
expressly stated in this Agreement and the Transaction
Documents.
25.2 Relationships
(a) Nothing contained in this Agreement, and no
action taken by the Banks pursuant hereto, shall
be deemed to constitute the Banks a partnership,
association, joint venture or other entity.
(b) In performing its functions and duties as
Facility Agent under the Transaction Documents,
the Facility Agent will act solely on behalf of
the Banks and does not assume and will not be
deemed in any circumstances whatsoever to have
assumed any responsibility, liability or
obligation, towards, or relationship of agency or
trust with or for the Borrower.
25.3 Communications
Except where this Agreement otherwise expressly provides,
all communications to be made between the Borrower and
the Banks or any of them concerning or for the purposes
of the Facilities shall be made by or through the
Facility Agent.
25.4 Instructions of Majority
Subject to clauses 25.5(c) and 25.6, the Facility Agent
must, in relation to each Facility or the Facilities
generally (as the case may be), act or refrain from
acting in the exercise of any right or power, or as to
any matter not expressly provided for by this Agreement,
in accordance with the instructions of the Majority
Facility Banks or the Majority Banks (as the case may be)
and shall be fully protected in so doing. Any
such instructions shall be binding on all of the Facility
Banks or Banks (as the case may be). In the absence of
any such instructions, the Facility Agent may act or
refrain from acting as it sees fit, provided that it has
used reasonable endeavours to obtain such instructions.
In no event, however, shall the Facility Agent be
required to take any action which exposes, or is likely
to expose, it to personal liability unless it is
indemnified to its reasonable satisfaction, or which is
contrary to this Agreement or any law, regulation or
directive.
25.5 Amendments
(a) (Generally): if authorised by the Majority
Banks, the Facility Agent may (except where
otherwise expressly provided in this Agreement)
grant waivers or consents, or enter into
agreements with the Borrower to vary the terms of
the Transaction Documents, insofar as they relate
to all of the Facilities, and not a particular
Facility only. Any such waiver, consent or
variation so authorised and effected by the
Facility Agent shall be binding on all the Banks
and the Facility Agent shall be under no liability
whatsoever in respect of any such waiver, consent
or variation.
(b) (Facility Specific): if authorised by the
Majority Facility Banks, the Facility Agent may
subject to paragraph (c) grant waivers or
consents, or enter into agreements with the
Borrower to vary the terms of the Transaction
Documents, insofar as they relate to a particular
Facility only (and not all of the Facilities).
Any such waiver, consent or variation so
authorised and effected by the Facility Agent
shall be binding on all the relevant Facility
Banks and the Facility Agent shall be under no
liability whatsoever in respect of any such
waiver, consent or variation.
(c) (Exceptions): the Facility Agent may not
agree to any waiver of or other variation which
has the effect of waiving an Event of Default
which relates to an individual Facility (and not
to all of the Facilities equally) unless
authorised to do so by the Majority Banks.
Nothing in this paragraph (c) limits or affects
clause 25.4.
25.6 Matters Requiring Unanimity Among Banks
(a) (General Amendments): the Facility Agent must
not, except as permitted by and in accordance with
paragraph (b), without the prior written consent
of all of the Banks, agree to any amendment,
variation or waiver of any Transaction Document
which has the effect of:
(i) varying the definition
"Majority Banks" in clause 1.1; or
(ii) in relation to any payment of
an amount under any Transaction Document,
changing the amount payable, the date upon
which payable, the currency in which
payable, the order or basis of application
or appropriation of any such payments, or
the basis upon or circumstances in which
that payment becomes payable; or
(iii) varying or waiving this clause
25.6; or
(iv) varying any provision under
which (before such variation) it is
provided that certain things may not be
done without, or may be done only with, the
consent or approval of all of the Banks.
(b) (Facility Specific): subject to clause
25.5(c), the Facility Agent may, in relation to a
Facility, provided it first obtains the written
consent of all of the relevant Facility Banks,
agree to any amendment, variation or waiver of any
Transaction Document which has the effect of:
(i) varying, with respect to that
Facility, the definition of "Majority
Facility Banks" contained in clause 1.1;
(ii) varying the Margin, the fees
payable by the Borrower in respect of that
Facility under clause 14, the Availability
Period, or the Facility Commitments
relating to that Facility;
(iii) varying any of the provisions
of clauses 4, 5, 6, 7, or 8 which relate
only to that Facility; or
(iv) varying any provision under
which (before such variation) it is
provided that certain things may not be
done without, or may only be done with, the
consent or approval of all of the relevant
Facility Banks.
25.7 Determination of Majority
For the purpose of calculating the Majority Banks and
Majority Facility Banks under this Agreement:
(a) any Bank which enters into any
subparticipation agreement or otherwise assigns
any of its rights under this Agreement (without
also transferring its obligations) may, by written
notice to the Facility Agent, in relation to any
matter in respect of which the Facility Agent is
required to act on the instructions of all of the
Banks, notionally divide any or all of its
Commitments into separate amounts to reflect such
subparticipations or assignments and vote or
abstain from voting, with respect to any such
separate amount, on any such matter separately and
differently from its vote or abstention with
respect to any other such separate amount on such
matter;
(b) in relation to any matter in respect of which
the Facility Agent is required to act on the
instructions of all of the Banks or all of the
relevant Facility Banks, the Commitment of any
Bank from which approval, consent or instructions
have been requested by the Facility Agent, and
which has not responded to the Facility Agent
within 30 days (or such other reasonable period as
the Facility Agent may specify in its request),
shall be disregarded; and
(c) the Treasury Commitment of each Swap Bank
shall be:
(i) at all times while no Event of
Default has occurred which continues
unremedied, zero;
(ii) subject to paragraph (iv), at
all times after an Event of Default has
occurred which continues unremedied but
before the Facility Agent gives a notice
under clause 23.2(b), an amount equal to
10% of the net aggregate notional principal
amount of all Permitted Derivatives to
which that Swap Bank is a party;
(iii) subject to paragraph (iv), at
all times after the Facility Agent gives a
notice under clause 23.2(b), an amount
equal to the Secured Money Outstanding to
that Swap Bank under or in respect of those
Permitted Derivatives to which that Swap
Bank is a party, as determined by the
Facility Agent in accordance with paragraph
(c) of the definition "Secured Money
Outstanding" in clause 1.1 of the Security
Trust Deed (as if the Facility Agent were
the Security Trustee); and
(iv) if the Medium Term Commitment
of that Swap Bank is less than $25,000,000,
zero.
For the purposes of this paragraph (c), each
Swap Bank must give to the Facility Agent all
details necessary to enable the Facility Agent to
make any such determination and any such
determination is binding on all parties to this
Agreement in the absence of manifest error.
However, the Facility Agent will consult with each
Swap Bank in good faith on request as to the basis
of the calculation of the Treasury Commitment of
that Swap Bank.
25.8 No need for inquiries
The Borrower shall not be concerned to inquire as to
whether the Facility Agent has been given any
instructions by the Majority Banks or the Majority
Facility Banks (as the case may be) or as to the terms of
any instructions so given.
25.9 Facility Agent not bound to Enquire
The Facility Agent is not obliged to ascertain or
enquire:
(a) either initially or on a continuing basis, as
to the credit or financial condition or affairs of
the Borrower or any other person; or
(b) as to the performance or observance by the
Borrower or any other person of any of the terms
of any Transaction Document or Material Document;
or
(c) whether any Event of Default or Potential
Event of Default has occurred.
25.10 Notice of Default
If the Facility Agent has actual notice that an Event of
Default or Potential Event of Default has occurred, the
Facility Agent must promptly notify the Banks, requesting
their instructions as to what action (if any) the
Facility Agent should take consequent upon such
occurrence.
25.11 Copies of Communications
With the exception of documents which the Facility Agent
considers to be routine communications of an
administrative nature, the Facility Agent must, upon
receipt of any notice, document or other information from
the Borrower promptly send copies of, or details of the
contents of, any such notice, documents or other
information to each Bank.
25.12 Facility Agent as Bank
(a) As a Bank, the Facility Agent shall have the
same rights and powers under the Transaction
Documents as any other Bank, and may exercise the
same as though it were not the Facility Agent.
(b) The Facility Agent may:
(i) carry on any business with the
Borrower;
(ii) act as agent or trustee for, or
in relation to any financing involving, the
Borrower; and
(iii) retain for its own benefit any
profits or remuneration in connection with
its activities under the Transaction
Documents or in relation to any of the
foregoing.
25.13 Responsibility for Documentation
The Facility Agent is not responsible to any Bank or any
other person for:
(a) the execution, genuineness, validity,
enforceability or sufficiency of any Transaction
Document; or
(b) the accuracy of any statement, representation
or warranty (whether written or oral) made in or
in connection with any Transaction Document.
25.14 Reliance
The Facility Agent may (and shall not be liable to any
third party if it does so):
(a) rely on any notice or document believed by it
to be genuine and correct and to have been signed
by, or with the authority of, the person by or on
whose behalf it appears to have been signed;
(b) rely on any statement made by a director or
employee of any person regarding any matters which
may reasonably be assumed to be within the
knowledge or power of such director or employee to
verify; and
(c) engage, pay for and rely on legal or other
professional advisers selected by it (including
those in the Facility Agent's employment and those
representing a Bank other than the Facility Agent)
in connection with its duties under the
Transaction Documents.
25.15 Independent Investigation
Each Bank acknowledges that it:
(a) has made its own independent credit appraisal
of the Borrower and has not relied on any
statement made by the Facility Agent in entering
into this Agreement; and
(b) will continue to make its own independent
appraisal of the affairs and financial condition
of the Borrower.
25.16 Liability
The Facility Agent shall not be liable for any cost,
loss, damage or expense of whatsoever nature suffered or
incurred by any Bank except to the extent arising as a
direct result of the gross negligence or wilful
misconduct of the Facility Agent in performing its duties
under this Agreement.
25.17 Indemnities
Without limiting the liability of the Borrower under this
Agreement, each Bank must immediately on demand indemnify
the Facility Agent for that Bank's Share of any costs,
expenses, liabilities or losses incurred by the Facility
Agent in any way relating to or arising out of its acting
as the Facility Agent in connection with its duties under
this Agreement, except to the extent that such costs,
expenses, liabilities or losses arise directly from the
Facility Agent's gross negligence or wilful misconduct.
25.18 Observe Laws
The Facility Agent may refrain from doing anything which
would or might in its opinion either be contrary to any
relevant law of any relevant jurisdiction or any official
directive or render it liable to any person and may do
anything which in its opinion is necessary to comply with
any relevant law or official directive.
25.19 Replacement
(a) A Facility Agent (the "retiring Facility
Agent") may:
(i) resign at any time by giving
not less than 20 Business Days' written
notice thereof to the Banks and the
Borrower; and
(ii) be removed from office upon not
less than 20 Business Day's prior written
notice signed by or on behalf of the
Majority Banks.
(b) Upon receipt of a notice of resignation from
the retiring Facility Agent, or the giving of a
notice of removal of the retiring Facility Agent,
the Majority Banks shall have the right, with the
consent of the Borrower (such consent not to be
unreasonably withheld, delayed or conditioned), to
appoint a successor Facility Agent. In the case
only of resignation of the retiring Facility
Agent, if within 20 Banking Days after the giving
of a notice of resignation, no successor Facility
Agent has been appointed, the retiring Facility
Agent may, with the consent of the Borrower, (such
consent not to be unreasonably withheld, delayed
or conditioned) appoint a successor Facility Agent
which shall be a reputable and experienced
financier having an office in Melbourne.
(c) The resignation or removal of the retiring
Facility Agent and the appointment of the
successor Facility Agent shall both become
effective upon the successor Facility Agent
notifying the Banks and the Borrower of its
acceptance of such appointment, and specifying for
the purposes of this Agreement an office in
Melbourne. Upon giving such notification, the
successor Facility Agent shall succeed to and be
vested with all the rights, obligations, powers
and duties and privileges of the Facility Agent
under this Agreement in place of the retiring
Facility Agent and the retiring Facility Agent
shall be discharged from its duties and
obligations under this Agreement.
(d) The provisions of this clause 25 shall
continue in effect for the benefit of a retiring
Facility Agent in respect of any actions taken or
omitted to be taken while the retiring Facility
Agent was acting as Facility Agent.
(e) All costs and expenses (including legal costs
and expenses) suffered or incurred by the retiring
Facility Agent, the successor Facility Agent, the
Banks and the Borrower shall be reimbursed by the
retiring Facility Agent (in the case of its
resignation) or by the Banks according to their
respective Shares (in the case of the removal of
the retiring Agent from office).
25.20 No Individual Enforcement
Each Bank acknowledges and agrees that the rights and
remedies of the Banks under this Agreement are, subject
to the directions of the Majority Banks, vested in the
Facility Agent and that it will not, without the prior
written consent of the Facility Agent, exercise or
purport to exercise any of those rights or remedies.
25.21 Security Trust Deed Resolutions
A Resolution, as defined in and passed under the Security
Trust Deed, by all or some of the Banks constitutes a
consent, authority and direction of the relevant Banks to
the Facility Agent for the purposes of this Agreement in
terms of that Resolution, to the extent that any matter
to be done in connection with or for the purposes of this
Agreement requires the consent, authority or direction of
those Banks.
25.22 Security Trustee Undertakings
If and for so long as the Security Trustee is not the
same person as the Facility Agent, the Security Trustee
must:
(a) give to the Facility Agent a copy of each
notice or other communication which it gives to
the Secured Creditors (as defined in the Security
Trust Deed) under the Security Trust Deed, and
each Resolution (as defined in the Security Trust
Deed) passed in accordance with the Security Trust
Deed; and
(b) not agree to or grant any waiver or amendment
of any Transaction Document under the Security
Trust Deed without the prior written consent of
the Facility Agent given in accordance with this
Agreement.
25.23 Convening of Meetings by Security Trustee
The Security Trustee is not required to convene a meeting
under clause 6.1 of the Security Trust Deed until such
time as it has notice that the Facility Agent has given a
notice under clause 23.2(b).
25.24 Deed of Covenant and Transaction Documents
Each Bank authorises the Facility Agent to execute on its
behalf, the Deed of Covenant and any Transaction Document
(other than this Agreement) to which it is expressed to
be a party on behalf of the Banks or any of them and
ratifies and confirms any such execution.
26. SET-OFF
The Borrower authorises each Bank to apply, at any time
after an Event of Default has occurred and is continuing
unremedied, without prior notice any credit balance
(whether or not then due) to which that Bank is at any
time entitled on any account at any office of that Bank
in or towards satisfaction of any sum then due and unpaid
from the Borrower to the Bank, and to set-off any amount
owing (whether present or future, actual, contingent or
prospective and on any account whatsoever) by that Bank
to the Borrower against any liability (whether present,
future, actual, contingent or prospective) of the
Borrower to that Bank under this Agreement or on any
other account whatsoever. No Bank shall be obliged to
exercise any of its rights under this clause, which shall
be without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to
which it is at any time otherwise entitled (whether by
operation of law, contract or otherwise). Each Bank must
notify the Facility Agent immediately upon its exercise
of a right of set-off against the Borrower, giving full
details in relation thereto, and the Facility Agent shall
inform the other Banks.
27. PRO RATA SHARING
27.1 Sharing
If at any time a Bank (the "Overpaid Bank") receives or
recovers (whether by set-off or from any other source
whatsoever), a proportion of its Share of any sum due
from the Borrower to the Banks under this Agreement (the
"Due Amount") which is greater than the proportion of the
Share of the Due Amount received or recovered by the Bank
receiving or recovering the lowest or no proportion of
the Due Amount (the amount of the excess being herein
referred to as the "Excess Amount"), then (subject to
clause 27.2):
(a) the Overpaid Bank must promptly pay the
Excess Amount to the Facility Agent;
(b) the Facility Agent shall treat such payment
as if the relevant portion thereof were a payment
of the Due Amount by the Borrower; and
(c) as between the Borrower and the Overpaid
Bank, the Borrower shall remain or become again
indebted to the Overpaid Bank in an amount equal
to the Excess Amount (less any amount subsequently
paid to the Overpaid Bank by the Facility Agent
pursuant to paragraph (b) above);
27.2 Claw Back of Excess Amounts
If all or any part of an Excess Amount paid by an
Overpaid Bank to the Facility Agent under clause 27.1(a)
is subsequently required to be repaid to the Borrower,
the other Banks shall repay to the Facility Agent for the
account of the Overpaid Bank such amount as is necessary
to ensure that all of the Banks share rateably in any
part of the Excess Amount which the Overpaid Bank is
entitled to retain.
27.3 Recovery by Legal Action
(a) Subject to clause 25.20, if a Bank intends to
commence proceedings in respect of any of its
rights under any Transaction Document, it must
give notice of such intention to the Facility
Agent, which shall notify all of the Banks within
five Business Days of receipt of such notice. Any
Bank may within thirty Business Days of receipt of
such a notice advise the Bank commencing the
proceedings that it intends to be joined as a
party to and contribute to the cost of the
proceedings.
(b) If a Bank recovers any amount as the
consequence of the commencement of proceedings or
enforcement of a judgment obtained in any legal
proceedings to which it is a party and it has
given notice prior to the commencement of such
proceedings to the Facility Agent in accordance
with paragraph (a) above, clause 27.1 shall:
(i) not apply so as to benefit any
other Banks which (being entitled so to do)
did not either join with such Bank in such
proceedings or contribute to the cost of
such action or proceedings; and
(ii) apply for the benefit of any
Bank which joins in such proceedings or
contributes to the cost of such proceedings
but so that for the purposes of that
clause, a Bank's Share shall be calculated
as if the Total Commitment meant the
aggregate of the Commitments of those Banks
joining in such action or proceedings.
28. EXPENSES AND STAMP DUTIES
28.1 Expenses
The Borrower must within 10 days of demand by the
Facility Agent or, in the case of paragraph (a), the
Arranger (as the case may be) pay or reimburse the
Facility Agent all expenses including legal fees, costs
and disbursements (on a full indemnity basis) reasonably
incurred or payable by the Facility Agent or the Arranger
(as the case may be), and in the case of paragraph (b)
(but only in the circumstances provided for in that
paragraph) each Bank, in connection with:
(a) the preparation and execution of the
Transaction Documents and any subsequent consent,
agreement, approval or waiver thereunder or
amendment thereto or which is contemplated
thereby;
(b) the enforcement, contemplated enforcement
following the occurrence of a Potential Event of
Default, or preservation of any rights under the
Transaction Documents (including, without
limitation, any expenses incurred in the
evaluation of any matter of material concern to
the Facility Agent) provided that in relation to
any legal fees, costs and disbursements incurred
by Banks independently, such fees, costs and
disbursements are incurred in circumstances where
there is a conflict or potential conflict between
the interests of the Facility Agent and any group
of Banks, or between the interests of one group of
Banks and another group of Banks; or
(c) the performance by the Facility Agent of its
duties under the Transaction Documents.
28.2 Stamp duties
(a) (Payment of all duties): The Borrower must
pay all stamp, loan transaction, registration and
similar Taxes, including fines and penalties,
financial institutions duty and debits tax which
may be payable to or required to be paid by any
appropriate authority or determined to be payable
in connection with the execution, delivery,
performance or enforcement of the Transaction
Documents or any payment, receipt or other
transaction contemplated by them but excluding any
such Taxes which become payable as a result of:
(i) the place (being a place
outside Victoria, New South Wales and the
Australian Capital Territory) in which any
Transaction Document is physically kept by
the Facility Agent, the Arranger or any
Bank after execution; or
(ii) the place (being a place
outside Australia) in which any payment
made under this Agreement is received.
(b) (Indemnity): The Borrower must indemnify and
keep indemnified the Facility Agent and each Bank
against any loss or liability incurred or suffered
by it as a result of the delay or failure by the
Borrower to pay such Taxes.
29. ASSIGNMENTS AND CONFIDENTIALITY
29.1 Successors and assigns
This Agreement is binding on and is for the benefit of
each party to it and that party's successors and
permitted assigns.
29.2 Assignments by the Borrower
The rights of the Borrower under this Agreement are
personal to the Borrower. Accordingly, those rights are
not capable of assignment.
29.3 Assignments by Banks
A Bank may assign all or any of its rights or transfer
all or any of its rights and obligations under the
Transaction Documents to another bank or financial
institution at any time with the prior written consent of
the Borrower, such consent not to be unreasonably
withheld, delayed or conditioned and not to be withheld
in the case of an assignment of rights only provided
that:
(a) in the case of an assignment of rights only,
the Facility Agent has received notice of the
assignment under which the assignee irrevocably
authorises the assignor to act as the assignee's
agent with full power and authority to exercise
the rights assigned and to receive (and give valid
receipts for) all money payable under the
Transaction Documents in respect of those rights;
(b) in the case of a transfer of rights and
obligations, such transfer is effected by a
substitution in accordance with clause 29.4;
(c) it will be reasonable for the Borrower to
withhold its consent to an assignment or transfer
under this clause 29.3 if the assignee has a
beneficial interest in any company which carries
on as a material part of its business the
generation, sale or distribution of electricity in
Australia; and
(d) the principal amount of the rights or rights
and obligations assigned or transferred is not
less than $25,000,000 or such other amount as the
Facility Agent and the Borrower may agree from
time to time.
29.4 Substitution
(a) If a Bank wishes to transfer all or any of
its rights and obligations under the Transaction
Documents to a bank or financial institution, it
and the proposed transferee must, in Canberra or
outside Australia, execute and deliver:
(i) to the Facility Agent 4
counterparts of a Substitution Certificate;
and
(ii) to the Security Trustee the
information required under clause 3.3 of
the Security Trust Deed and an executed
Security Certificate for the transferee.
(b) On receipt of a duly executed Substitution
Certificate the Facility Agent shall (if it is
satisfied that the substitution complies with
clause 29.3) promptly:
(i) notify the Borrower, each other
Bank, the Issuing Bank and the Security
Trustee;
(ii) countersign in Canberra or
outside Australia the counterparts on
behalf of all other parties to this
Agreement;
(iii) enter the transfer in a
register kept by it (which shall be
conclusive); and
(iv) retain one counterpart and
deliver one counterpart to each of the
transferor, the transferee and the
Borrower.
(c) On any such certificate being countersigned
by the Facility Agent the transferor shall, with
effect from the date specified in that
certificate, be relieved of its obligations to the
extent specified in that certificate, and the
transferee shall, with effect from that date, be
bound by the Transaction Documents to the extent
so stated in the certificate, provided that
notwithstanding anything to the contrary contained
in this Agreement, no Substitution Certificate
shall be effective to release a Bank from any
obligations (whether actual or contingent) owed by
the Bank to the Issuing Bank under clause 6.3 in
respect of any VPX Guarantee issued prior to the
substitution unless the Issuing Bank has consented
in writing to such substitution).
(d) Each other party to this Agreement
irrevocably authorises the Facility Agent to sign
each such certificate on its behalf and
acknowledges that:
(i) upon such a certificate being
signed by the Facility Agent it shall be
deemed for all purposes to have consented
to the transfer of obligations provided for
in the certificate; and
(ii) it will continue to be bound by
the provisions of the Transaction Documents
accordingly.
(e) Unless the Facility Agent otherwise agrees,
no transfer of a Bank's obligations may be
effected while any Utilisation Notice is current.
(f) Where a Substitution Certificate has been
entered into and accepted by the Facility Agent in
accordance with paragraph (b) above then:
(i) any liability which the
transferor Bank may continue to have
(either directly or under clause 6.3) in
relation to any VPX Guarantee issued under
this Facility for which it is indemnified
by the transferee Bank shall be ignored;
and
(ii) any liability which the
transferee Bank may have under any such
indemnity shall be included,
for the purposes of the determination of the
transferor Bank's Share under any provision of
this Agreement and the definition of "Majority
Banks" and "Majority Facility Banks".
(g) If under a Substitution Certificate the
transferee accepts a transfer of rights and
obligations as a VPX Guarantee Bank, and any VPX
Guarantee has been issued severally by the
Facility Agent on behalf of all of the VPX
Guarantee Banks the Facility Agent in consultation
with the Company and the new Bank will notify VPX
and (unless such VPX Guarantee contains provision
for automatic substitution of Banks) will request
VPX to acknowledge the substitution or accept a
replacement VPX Guarantee executed by the Facility
Agent on behalf of all VPX Guarantee Banks
(including the transferee).
(h) (Security Certificates): Upon receipt of
Security Certificates from the Borrower under
paragraph (a) and of a notice from the Facility
Agent under paragraph (b), the Security Trustee
must:
(i) endorse its consent on those
Security Certificates and deliver them to
the transferee; and
(ii) make the appropriate entries in
the Register of Secured Creditors
maintained by it in accordance with the
Security Trust Deed.
29.5 Increased Costs and Illegality
If any assignment or substitution of or with respect to
all or any part of the rights or obligations of a Bank
under this Agreement pursuant to clause 29.3 or 29.4 is
made which results (or would but for this clause result)
at the time thereof in amounts becoming payable under
clauses 16 or 18, then the assignee or transferee shall
be entitled to receive such amounts only to the extent
that the assignor or transferor would have been so
entitled had there been no such assignment or transfer.
Nothing in this clause affects the rights of an assignee
or transferee under clauses 16 or 18 in relation to
amounts which become payable after the time of assignment
or transfer. No such assignment or transfer shall be
made if the assignee or transferee would be entitled
immediately afterwards to give notice under clause 17.
29.6 Sub-participations
Any Bank may, with the prior consent of the Borrower
(such consent not to be unreasonably withheld, delayed or
conditioned) shall be entitled freely to enter into any
sub-participation or other arrangement with any third
party relating to the Transaction Documents which does
not transfer to that third party any obligation and/or
any legal or equitable interest in any of the rights
arising under this Agreement, provided that the
Commitment sub-participated or subject to the arrangement
must not be less than $25,000,000 or such other amount as
the Facility Agent and the Borrower may agree from time
to time. It will be reasonable for the Borrower to
withhold its consent to an assignment or transfer under
this clause 29.6 if the third party has a beneficial
interest in any company which carries on as a material
part of its business the generation, sale or distribution
of electricity in Australia.
29.7 Confidentiality
(a) Subject to paragraph (b), no Bank shall
disclose any confidential or unpublished
information or documents supplied by the Borrower
in connection with the Transaction Documents which
are specifically indicated by the Borrower or
marked or stated to be confidential.
(b) A Bank shall be entitled to disclose any
confidential information or documents:
(i) in any judicial proceeding
arising out of or in connection with any
Transaction Document to the extent that
such disclosure is deemed by the Bank
necessary to protect its interests;
(ii) if required to do so under a
binding order of any Government Body or any
procedure for discovery in any judicial
proceedings;
(iii) if required to do so under any
law or any administrative guideline,
directive, request or policy whether or not
having the force of law and, if not having
the force of law, the observance of which
is in accordance with the practice of
responsible bankers or financial
institutions;
(iv) otherwise as required or
permitted by any Transaction Document;
(v) to its legal advisers and its
consultants as long as it advises them of
the confidential nature of the information
or documents or that nature is clear from
the circumstances of the disclosure;
(vi) to a proposed assignee or
transferee or sub-participant as long as it
advises them of the confidential nature of
the information or documents;
(vii) to the Facility Agent or any
other Bank;
(viii) with the prior written consent
of the Borrower; or
(ix) to any holding company (as
defined in the Corporations Law) of that
Bank.
(c) This clause 29.7 survives the cancellation,
expiration or termination of a Bank's Commitment,
and the termination of this Agreement.
(d) Any Bank which discloses information to a
person in accordance with paragraph (b)(v), (vi),
or (ix) is liable for any disclosure made by that
person which would, if that person were a party to
this Agreement, be a breach of this clause 29.7,
unless and until that person enters into an
undertaking in favour of the Borrower as to
confidentiality in the same terms as this
clause 29.7, or such other terms as the Borrower
and that person may agree.
30. GOVERNING LAW AND JURISDICTION
30.1 Governing law
This Agreement is governed by and construed in accordance
with the laws of the State of Victoria.
30.2 Jurisdiction
(a) (Acceptance of jurisdiction): the Borrower
irrevocably submits to and accepts, generally and
unconditionally, the non-exclusive jurisdiction of
the courts and appellate courts of the State of
Victoria with respect to any legal action or
proceedings which may be brought at any time
relating in any way to any Transaction Document.
(b) (No objection to inconvenient forum): the
Borrower irrevocably waives any objection it may
now or in the future have to the venue of any
action or proceedings relating to a Transaction
Document including any objection it may now or in
the future have that any such action or proceeding
has been brought in an inconvenient forum.
31. MISCELLANEOUS
31.1 Certificate of Agent
A certificate in writing signed by an officer of the
Facility Agent certifying the amount payable by the
Borrower under this Agreement or stating any other act,
matter or thing relating to any Transaction Document is
conclusive evidence of the matters stated in the
certificate unless proved to the contrary by the
Borrower.
31.2 Notices
Any notice or other communication which must be given,
served or made under or in connection with any
Transaction Document:
(a) must be in writing in order to be valid;
(b) is sufficient if executed by the party
giving, serving or making the same or on its
behalf by any attorney, director, secretary, other
duly authorised officer or solicitor of such
party;
(c) will be deemed to have been duly given,
served or made in relation to a person if it is
delivered or posted by prepaid post to the
address, or sent by fax to the number of that
person set out below, or in the case of the Banks,
in Schedule 1 (or to such other address or number
as is notified in writing by that person to the
other parties from time to time); and
(d) will be deemed to be given, served or made:
(i) (in the case of prepaid post)
on the fifth day after the date of posting;
(ii) (in the case of facsimile) on
receipt of a transmission report confirming
successful transmission; and
(iii) (in the case of delivery by
hand) on delivery.
Facility Agent
Address: 14th Floor
385 Bourke Street
Melbourne, Vic., 3000
Fax No: (03) 9675 7825
Attention: Associate Vice President,
Corporate Finance
The Borrower
Address: Level 15
624 Bourke Street
Melbourne Vic., 3000
Fax No: (03) 9297 8904
Attention: Chief Finance Officer
The Security Trustee
Address: 14th Floor
385 Bourke Street
Melbourne, Vic., 3000
Fax No: (03) 9675 7825
Attention: Associate Vice President,
Corporate Finance
31.3 Continuing obligation
Each Transaction Document constitutes a continuing
obligation regardless of any settlement of account,
intervening payment, express or implied revocation or any
other matter or thing, until a final discharge thereof
has been given to the Borrower.
31.4 Settlement conditional
Any settlement or discharge between the Facility Agent,
the Banks and the Borrower is conditional on any security
or payment given or made by the Borrower, not being
avoided, repaid or reduced by virtue of any Insolvency
Provision. If such security or payment is so avoided,
repaid or reduced, the Facility Agent and the Banks are
entitled to recover the value or amount of such security
or payment avoided, repaid or reduced from the Borrower
subsequently as if such settlement or discharge had not
occurred.
31.5 Further assurance
The Borrower must, on demand by the Facility Agent, and
at the entire cost and expense of the Borrower perform
all such acts and execute all such agreements, assurances
and other documents and instruments as the Facility Agent
reasonably requires to perfect or give effect to the
rights and powers afforded, created, or intended to be
afforded or created, by any Transaction Document or any
Bill.
31.6 Severability of provisions
Any provision of any Transaction Document which is
illegal, void or unenforceable will be ineffective to the
extent only of such illegality, voidness or
unenforceability without invalidating the remaining
provisions hereof or thereof.
31.7 Remedies cumulative
The rights and remedies conferred by each Transaction
Document on the Facility Agent and the Banks are
cumulative and in addition to all other rights or
remedies available to the Facility Agent and the Banks by
law or by virtue of any Transaction Document.
31.8 Waiver
A failure to exercise or enforce or a delay in exercising
or enforcing or the partial exercise or enforcement of
any right, remedy, power or privilege any Transaction
Document by the Facility Agent or the Banks will not in
any way preclude, or operate as a waiver of, any further
exercise or enforcement thereof or the exercise or
enforcement of any other right, remedy, power or
privilege thereunder or provided by law.
31.9 Consents and approvals
Where any act, matter or thing under any Transaction
Document depends on the consent or approval of the
Facility Agent or the Banks, then unless expressly
provided otherwise therein, that consent or approval may
be given or withheld in the absolute and unfettered
discretion of the Facility Agent or the Banks (as the
case requires) and may be given subject to such
conditions as the Facility Agent or the Banks (as the
case requires) thinks fit in their absolute and
unfettered discretion.
31.10 Written waiver, consent and approval
Any waiver, consent or approval given by the Facility
Agent under any Transaction Document will only be
effective and only binds the Banks if it is given in
writing, and executed by the Facility Agent or on its
behalf by an officer for the time being of the Facility
Agent.
31.11 Consultants fees
Where the Facility Agent has to make any determination
under or in respect of any Transaction Document, it may
employ such consultants or persons as it thinks fit to
assist in making such determination. The Borrower must
reimburse the Facility Agent for all reasonable fees paid
by the Facility Agent to any such consultants or persons
within 10 days after receipt of a written demand.
31.12 Moratorium legislation
To the fullest extent permitted by law, the provisions of
all laws whether existing now or in the future and
whether operating directly or indirectly to lessen or
otherwise to vary or affect in favour of the Borrower any
obligation under any Transaction Document, or to delay or
otherwise prevent or prejudicially affect the exercise of
any rights or remedies conferred on the Facility Agent or
any Bank under any Transaction Document, are hereby
expressly waived, negatived and excluded.
31.13 Counterparts
This Agreement may be executed in a number of
counterparts, all of which taken together will be deemed
to constitute one and the same document.
32. NO RELIANCE ON THE BANK OR FACILITY AGENT
The Borrower acknowledges that:
(a) except as expressly provided in any
Transaction Document, neither the Facility Agent
nor any Bank has any duty to supply the Borrower
with information in relation to or affecting
itself or any other person; and
(b) it has not entered into any Transaction
Document in reliance on or as a result of any
representation, promise, statement, conduct or
inducement to that party by or on behalf of the
Facility Agent or any Bank otherwise than as set
out in the Transaction Documents.
EXECUTED as an agreement.
SCHEDULE 1
The Banks
Name: ABN AMRO Australia Limited, ACN 000 862 797
Address: Level 33, 101 Collins Street,
Melbourne, Victoria 3000
Fax No: (03) 9228 7200
Attention: Mr M Goetz, Associate Director,
Corporate Finance
Name: Australia and New Zealand Banking Group Limited
Address: Level 5, 530 Collins Street,
Melbourne, Victoria 3000
Fax No: (03) 9273 3535
Attention: Government and Primary Markets
Institutional Banking
Name: BA Australia Limited,
ACN 004 617 341
Address: Level 18, 135 King Street,
Sydney, NSW 2000
Fax No: (02) 9931 4562
Attention: Australian Loans Administration
Name: Commonwealth Bank of Australia, ACN 123 123 124
Address: 14th Floor, 385 Bourke Street,
Melbourne, Victoria 3000
Fax No: (03) 9675 6855
Attention: Chief Manager, Corporate Banking Services
Name: Credit Suisse, ARBN 061 700 712
Address: Level 14, 101 Collins Street,
Melbourne, Victoria 3000
Fax No: (03) 9653 3443
Attention: Head of Risk Management
Name: IBJ Australia Bank Limited, ACN 009 150 109
Address: 16th Floor, 333 Collins Street,
Melbourne, Victoria 3000
Fax No: (03) 9613 0789
Attention: Senior Manager, Operations
SCHEDULE 2
Medium Term Banks
(1)
(2)
Medium Term Bank
Commitment ($)
ABN AMRO
Australia
Limited
$280,000,000
Australia and
New Zealand
Banking Group
Limited
$100,000,000
BA Australia
Limited
$280,000,000
Commonwealth
Bank of
Australia
$280,000,000
Credit Suisse
$160,000,000
IBJ Australia
Bank Limited
$100,000,000
SCHEDULE 3
Working Capital Banks
(1)
(2)
Working Capital Bank
Commitment ($)
Commonwealth Bank of
Australia
$25,000,000
SCHEDULE 4
VPX Guarantee Banks
(1)
(2)
VPX Guarantee Bank
Commitment ($)
Commonwealth
Bank of
Australia
$45,000,000
SCHEDULE 5
Utilisation Notice - Medium Term Cash
Advance Facility/Working Capital Facility
To: [Facility Agent]
From: CitiPower Limited,
ACN 064 651 056
Date: [ ]
UTILISATION NOTICE (ADVANCE)
Multi-Option Syndicated Facility Agreement dated [ ]
("Facility Agreement")
Dear Sirs
In accordance with clause 4.1 of the Facility Agreement we
hereby request an Advance to be made to us as follows:
(a) Facility: [specify either Medium Term Cash Advance
Facility or Working Capital Facility].
(b) Amount: [ ]
(c) Utilisation Date: [ ]
(d) Interest Period: [ ]
(e) Purpose: U[General Working
Capital or corporate purposes] and/or
U[Repayment of Utilisations due
on Utilisation Date, as follows:
]
Payment instructions with respect to the proceeds of the Advance
are as follows:
[ ]
Terms used in this Utilisation Notice and defined in the
Facility Agreement have the same meaning as in the Facility
Agreement.
We confirm that:
(i) the representations and warranties deemed to be repeated
by clause 20.5 of the Facility Agreement are true and
correct as though made at the date of this notice with
reference to the facts and circumstances then existing
(and will be so true and correct on the Utilisation Date
specified above); and
(ii) no Event of Default or, if clause 3.3(c) of the Facility
Agreement applies, Potential Event of Default has
occurred and continues unremedied or would result from
the making of the proposed Advance.
Yours faithfully
[Authorised Signatory] [Authorised Signatory]
For and on behalf of CitiPower Limited
SCHEDULE 6
Utilisation Notice - VPX Guarantee Facility
To: [Facility Agent]
From: CitiPower Limited, ACN
064 651 056
Date: [ ]
UTILISATION NOTICE (VPX GUARANTEE)
Multi-Option Syndicated Facility Agreement dated [ ]
("Facility Agreement")
Dear Sirs
In accordance with clause 4.1 of the Facility Agreement we
request that a VPX Guarantee be issued for our account under the
Facility Agreement, as follows:
(a) Face Amount: [ ]
(b) Beneficiary: Victorian Power Exchange Ltd
(c) Utilisation Date: [ ]
(d) Expiry Date: [ ]
The proposed form of the VPX Guarantee is attached.
Instructions with respect to the delivery of the VPX Guarantee
upon issue are as follows:
[ ]
Terms used in this Utilisation Notice and defined in the
Facility Agreement have the same meaning as in the Facility
Agreement.
We confirm that:
(i) the representations and warranties deemed to be repeated
by clause 20.5 of the Facility Agreement are true and
correct as though made at the date of this notice with
reference to the facts and circumstances then existing
(and will be so true and correct on the Utilisation Date
specified above); and
(ii) no Event of Default or, if clause 3.3(c) of the Facility
Agreement applies, Potential Event of Default has
occurred and continues unremedied or would result from
the issue of the proposed VPX Guarantee.
Yours faithfully
[Authorised Signatory] [Authorised Signatory]
For and on behalf of CitiPower Limited
SCHEDULE 7
Utilisation Notice - Bill Facility
To: [Facility Agent]
From: CitiPower Limited,
ACN 064 651 056
Date: [ ]
<PAGE>
UTILISATION NOTICE (DRAWDOWN)
Multi-Option Syndicated Facility Agreement dated [ ]
("Facility Agreement")
Dear Sirs
In accordance with clause 4.1 of the Facility Agreement we
hereby request a Drawdown to be made to us under the Bill
Facility as follows:
(a) Amount: [specify discounted proceeds of Bills
to be accepted and discounted]
(b) Utilisation Date: [ ]
(c) Interest Period: [ ]
(d) Purpose: [General Working Capital or corporate purposes]
and/or
[Repayment of Utilisations due on
Utilisation Date, as follows: ]
[We hereby request the Banks to prepare the Bills the subject of
the above Drawdown].
Payment instructions with respect to the proceeds of the
Drawdown are as follows:
[ ]
Terms used in this Utilisation Notice and defined in the
Facility Agreement have the same meaning as in the Facility
Agreement.
We confirm that:
(i) the representations and warranties deemed to be repeated
by clause 20.5 of the Facility Agreement are true and
correct as though made at the date of this notice with
reference to the facts and circumstances then existing
(and will be so true and correct on the Utilisation Date
specified above); and
(ii) no Event of Default or, if clause 3.3(c) of the Facility
Agreement applies, Potential Event of Default has
occurred and continues unremedied or would result from
the making of the proposed Drawdown.
Yours faithfully
[Authorised Signatory] [Authorised Signatory]
For and on behalf of CitiPower Limited
<PAGE>
SCHEDULE 8
Model (Pro-Forma)
SCHEDULE 9
Substitution Certificate
SUBSTITUTION CERTIFICATE made at [ ] on
[ ]
BETWEEN [ ] ("Existing Bank");
AND [ ] ("New Bank");
AND [ ] as facility
agent for the Banks under the Facility Agreement
("Facility Agent").
RECITALS
A. The Existing Bank and the New Bank presently have the
Commitments specified in Schedule 1 of this Certificate.
B. The New Bank wishes to assume [some/all] of the Existing
Bank's Commitments under the Facility Agreement.
C. After the Substitution Date the Existing Bank and the New
Bank will have the Commitments specified in Schedule 2 of
this Certificate.
6. DEFINITIONS AND INTERPRETATION
1 Definitions
In this Certificate:
"Facility Agreement" means the Multi-Option Syndicated
Facility Agreement dated [ ] between
CitiPower Limited, the banks and financial institutions
specified in Schedule 1 thereto, the Facility Agent, Bank
of America NT & SA as arranger and [ ]
as security trustee, together with and as supplemented by
all Substitution Certificates.
"Substituted Commitments" means the Commitments specified
in Schedule 2 of this Certificate.
"Substituted Obligations" means the obligations and
responsibilities identical to the obligations and
responsibilities under the Transaction Documents of the
Existing Bank in relation to the Substituted Commitments.
"Substituted Portion" means the amount of each
outstanding Utilisation specified as such in Schedule 3
of this Certificate.
"Substituted Rights" means rights, remedies and powers
identical to the rights, remedies and powers under the
Transaction Documents of the Existing Bank in relation to
the Substituted Commitments and the Substituted Portion.
"Substitution Date" means the later of:
(a) the date on which this Certificate is
executed on behalf of the Facility Agent; or
(b) such other date as the parties hereto may
agree in writing.
2 Interpretation
(a) A reference in this Certificate to "identical"
obligations and responsibilities or rights, remedies and powers
is a reference to the character of those obligations and
responsibilities, rights, remedies and powers rather than to the
identity of the person obliged to perform them or entitled to
them.
(b) Terms defined in the Facility Agreement have the
same meaning in this Certificate.
3 Transaction Document
This Certificate is a Transaction Document.
7. REPRESENTATION
The Existing Bank represents and warrants to the New Bank
that as at the date of this Certificate the Existing
Bank's present Commitments under the Facility Agreement
are as shown in Schedule 1 of this Certificate and the
Existing Bank's participation in outstanding Utilisations
is as shown in Schedule 3 of this Certificate.
8. SUBSTITUTED OBLIGATIONS
1 Release from Future Obligations
The Existing Bank is released from the Substituted
Obligations with effect on and from the Substitution
Date. The Existing Bank shall, however, remain bound by
its obligations and responsibilities under the
Transaction Documents which accrue prior to the
Substitution Date except as provided in clause 5 below.
2 Assumption of Obligations
The New Bank undertakes to the Existing Bank and the
Facility Agent that it shall assume the Substituted
Obligations on and from the Substitution Date.
9. SUBSTITUTED RIGHTS
The Existing Bank shall no longer be entitled to the
Substituted Rights or the Substituted Portion and the New
Bank shall become entitled to the Substituted Rights and
the Substituted Portion with effect on and from the
Substitution Date.
10. VPX GUARANTEES
1 Application of this Clause
The provisions of clauses 5.2 and 5.3 of this Certificate
only apply if the Substituted Portion includes a
Utilisation under the VPX Guarantee Facility.
2 Issuing Bank Consent
If the Issuing Bank has consented in writing to the
substitution effected by this Certificate, then with
effect on and from the Substitution Date (or such later
date as the Issuing Bank may agree) the Existing Bank
will be released from and the New Bank will assume a
proportion of the Existing Bank's liability to the
Issuing Bank under clause 6.3 of the Facility Agreement
in relation to VPX Guarantees issued by the Issuing Bank.
The proportion of liability to be substituted in relation
to each such VPX Guarantee shall be equal to the
proportion which the Substituted Commitments (as shown in
Schedule 2 of this Certificate) bears to the Existing
Bank's present Commitments (as shown in Schedule 1 of
this Certificate).
3 Indemnity
If the Issuing Bank has not consented in writing to the
substitution effected by this Certificate or if any VPX
Guarantees have been issued by the Facility Agent under
clause 6.1(b) of the Facility Agreement, then the New
Bank will indemnify the Existing Bank, and keep the
Existing Bank indemnified, against a proportion of the
Existing Bank's liability (either directly or under
clause 6.3 or 6.4(b) of the Facility Agreement) in
respect of VPX Guarantees issued under the Facility
Agreement. The proportion of liability to which the
indemnity will apply in relation to each such VPX
Guarantee shall be equal to the proportion which the
Substituted Commitments (as shown in Schedule 2 of this
Certificate) bears to the Existing Bank's present
Commitments (as shown in Schedule 1 of this Certificate).
11. EFFECT ON TRANSACTION DOCUMENTS
The Existing Bank, the New Bank and the Facility Agent
agree that with effect on and from the Substitution Date:
(a) the New Bank and each party to each Transaction
Document will assume obligations and responsibilities towards
each other, and have rights, remedies and powers in relation to
each other, determined on the basis that the obligations and
responsibilities of the New Bank are the Substituted Obligations
and the rights, remedies and powers of the New Bank are the
Substituted Rights;
(b) the Existing Bank will be released from its
obligations and responsibilities under each of the Transaction
Documents accruing on and after the Substitution Date to the
extent of the Substituted Obligations and it will cease to be
entitled to exercise any rights, remedies or powers under the
Transaction Documents arising on or after the Substitution Date
in respect of the Substituted Rights;
(c) the New Bank will be deemed a party to each
Transaction Document to which the Existing Bank is a party as a
Bank with Commitments equal to the Substituted Commitments; and
(d) the New Bank will have the benefit of and be
bound by the Deed of Covenant, as if it were an
original party to the Facility Agreement as a
Bank.
12. NO EFFECT ON ACCRUED RIGHTS AND OBLIGATIONS
Save as expressly provided herein this Certificate shall
not affect the Existing Bank's rights, remedies and
powers arising, and obligations and responsibilities
accrued, prior to the Substitution Date.
13. RELIQUEFYING BILLS
Nothing contained in this Certificate releases, relieves
or otherwise affects the obligations and responsibilities
and the rights, remedies and powers, of the Existing Bank
in respect of Bills drawn under clause 12 of the Facility
Agreement (including, without limitation, any obligation,
responsibility, right, remedy or power arising under such
clause 12). The New Bank will not assume any obligations
or responsibilities, or acquire any rights, remedies or
powers, in respect of such Bills.
14. PAYMENTS
1 Consideration
The Existing Bank and the New Bank shall agree separately
between themselves the amounts (if any) payable from one
to the other in relation to the substitution in respect
of principal, accrued interest and fees.
2 Facility Agent
On and from the Substitution Date the Facility Agent will
make all payments received by it in respect of the
Substituted Commitments, Substituted Obligations,
Substituted Rights and Substituted Portion to the New
Bank.
15. ACKNOWLEDGEMENTS
The New Bank acknowledges that it has received a complete
and current copy of each Transaction Document together
with such other documents and information as it has
required in connection therewith.
16. GOVERNING LAW
This Certificate is governed by the laws of the State of
Victoria.
Schedule 1: Present Commitments
Existing Bank's present Commitments $[ ]
New Bank's present Commitments $[ ]
Schedule 2: Substituted Commitments
Existing Bank's Commitments after substitution $[ ]
New Bank's Commitments after substitution $[ ]
Schedule 3: Utilisations
Total Outstanding $[ ]
Existing Bank's Participation $[ ]
Substituted Portion $[ ]
SIGNED as an agreement.
[To be executed by Existing Bank, New Bank and Facility Agent]
SCHEDULE 10
Due Diligence Team Members
Lawrence S. Folks
William R. Ford
Barry A. Weiss
Jonathon L. Glazer
Muriel W. Rice
R. Drake Keith
Miles P. Nelson
Placido J. Martinez
George H. Heintzen
John J. Harton
Thomas J. Wright.
SCHEDULE 11
Insurances
1. COMBINED LIABILITY
Insurer Utilities Insurance Company
Pty Ltd
Period of Insurance 30 September 1995 to 30
September 1996
Policy Number UICL9501-06
Interest Liability insurance in
respect of the Insured's
operations
Situation World Wide
Covering Public Liability:
$330,000,000
any one
occurrence
Product Liability:
$330,000,000
any one
occurrence and
in the annual
aggregate
Professional$90,000,000 any
one
Indemnity: and in the
annual event
aggregate
Interests of Other The interests of the
Parties Commonwealth Bank of
Australia as Security Trustee
and holder of a security
interest over the assets of
the Insured for the benefit
of providers of financial
accommodation to the Insured.
2. DIRECTORS AND OFFICERS LIABILITY
Period of Insurance 30 September 1995 to 30
September 1996
Insurer Utilities Insurance Company
Pty Ltd
Policy Number UICD09501-03
Interest Third party financial loss
against the Insured's
Directors and Officers
Covering $100,000 any one claim and in
the annual aggregate.
3. INDUSTRIAL SPECIAL RISKS
Period of Insurance 30 November 1995 to 30
November 1996
Insurer Utilities Insurance Company
Pty Ltd
Policy Number To be advised
Interest The property of the Insured
being both real and personal
Situation Australia Wide
Covering Combined Liability -
$100,000,000 any one loss any
one location.
Interests of Other The interests of the
Parties Commonwealth Bank of
Australia as Security Trustee
and holder of a security
interest over the assets of
the Insured for the benefit
of providers of financial
accommodation to the Insured.
4. MOTOR VEHICLE
Period of Insurance 11 April 1995 to 11 April
1996
Insurer Utilities Insurance Company
Pty Ltd
Policy Number MV424823
Interest Third party property damage
only
Situation Australia Wide
Covering $1,000,000 each and every
loss.
Interests of Other The interests of the
Parties Commonwealth Bank of
Australia as Security Trustee
and holder of a security
interest over the assets of
the Insured for the benefit
of providers of financial
accommodation to the Insured.
5. TRAVEL AND PERSONAL INJURY
Period of Insurance 30 June 1995 to 30 June 1996
Insurer Utilities Insurance Company
Pty Ltd
Policy Number TAPA0080
Interest Travel and personal injury of
the Insured's directors,
consultants, employees and
accompanying family members
while travelling intrastate,
interstate and overseas by
scheduled and charter
flights.
Covering As follows:
SECTION THE COMPENSATION
EACH TRAVELLER
1 PERSONAL INJURY
Capital Sum
Insured $500,000
Events 1- $200,000
16
Spouses $10,000
Events 1-16
Persons Under 18 NIL
Event 1 NIL WEEKS
Limited to NIL DAYS
Weekly Injury
Benefit $2,000
Event 17
Maximum Aggregate
Period
Elimination Period
Broken Bones
Benefit
Event 19
2 OVERSEAS MEDICAL $1,000,000
EXPENSES
2A AMERICAN INTERNATIONAL Included
ASSISTANCE SERVICE
3 ADDITIONAL/ $10,000
CANCELLATION/
CURTAILMENT EXPENSES
4 ALTERNATIVE EMPLOYEE $10,000
ADDITIONAL EXPENSES
5 LUGGAGE, PERSONAL $10,000
EFFECTS, TRAVEL
DOCUMENTS, MONEY AND
CREDIT CARDS
Specified Item(s):
Personal Computers
(including
hardware/software)
Excess $250 each and
every claim
6 PERSONAL LIABILITY $5,000,000
7 KIDNAP AND RANSOM $250,000
8 RENTAL VEHICLE - $5,000
COLLISION DAMAGE AND
THEFT EXCESS COVER
9 MISSED TRANSPORT $2,000
CONNECTION
10 EXTRA TERRITORIAL NOT INCLUDED
WORKERS' COMPENSATION
If no amount is inserted against any one or more of the above
Sections the Policy does not provide cover under that Section or
Sections.
SCHEDULE 12
Form of Accession Agreement
ACCESSION AGREEMENT made at [ ] on [ ]
BETWEEN [ ], ACN [ ] of [
] (the "Incoming Bank")
AND THE BANKS AND FINANCIAL INSTITUTIONS SPECIFIED in
the Schedule
AND CITIPOWER LTD, ACN 064 651 056 incorporated in
Victoria and having its registered office at [
] (the "Borrower")
AND COMMONWEALTH BANK OF AUSTRALIA, ARBN 123 123 124
of 14th Floor, 385 Bourke street, Melbourne, Victoria,
3000 (the "Facility Agent")
RECITALS
A. This Accession Agreement is entered into pursuant to clause
13.5 of the Facility Agreement (the "Facility Agreement")
dated [ ] 1996 made between the Borrower, the
banks and financial institutions specified therein, the
Facility Agent, Bank of America NT & SA as Arranger, and
Commonwealth Bank of Australia as Security Trustee.
B. The Incoming Bank has agreed to make available the [Working
Capital Facility] [VPX Guarantee Facility] under and in
accordance with the Facility Agreement and the [Working
Capital Terms and Conditions] [VPX Terms and Conditions]
(if any) entered into between the Borrower and the Incoming
Bank.
1. DEFINED TERMS
Words and expressions which are defined in the Facility
Agreement have the same meaning when used in this Agreement
unless otherwise defined herein or unless the context
otherwise requires.
2. ACCESSION OF INCOMING BANK
It is agreed that with effect from the date of this
Agreement, the Incoming Bank shall become a party to, have
the benefit of and be bound by the Facility Agreement as a
[Working Capital Bank] [VPX Guarantee Commitment] of $[
], provided that the Incoming Bank shall have no liability
under any Transaction Document in respect of any matter or
thing prior to the date of this Agreement.
3. NOTICES
For the purposes of clause 31.2 of the Facility Agreement,
the address and fax number of the Incoming Bank are as
follows:
Address:
Fax No:
Attention:
4. CONTINUANCE OF TRANSACTION DOCUMENTS
The Transaction Documents otherwise continue in full force
and effect.
5. GOVERNING LAW
This Agreement is governed by the laws of the State of
Victoria.
EXECUTED as an Agreement.
Schedule
The Banks
SCHEDULE 13
Form of Entergy Undertaking
THIS IS A MACRO - COMMON SEAL CLAUSE FOR USE WITH AGREEMENTS AND
DEEDS. USE [ENTER] AFTER TYPING - DO NOT F9 IN A MACROSIGNED
as an agreement.
The Borrower
THE COMMON SEAL of )
CITIPOWER LIMITED was affixed )
by the authority of the Board )
of Directors in the presence )
of:
L S Folks (sgd)
W Ford (sgd) .............................
............................. ..............
................ (Signature of Director)
(Signature of
Secretary/Director) L S Folks
.............................
William R Ford, Jnr ...............
............................. (Name of Director in Full)
.................
(Name of Secretary/Director
in Full)
The Facility Agent
SIGNED for and on behalf of ) Loretta Venten (sgd)
COMMONWEALTH BANK OF ) .............................
AUSTRALIA by LORETTA MARY ) ........................
VENTEN, its Attorney pursuant ) (Signature)
to a Power of Attorney dated )
16 March 1994 and who )
declares that he has not )
received any notice of the )
revocation of such Power of
Attorney in the presence of:
Daniel Fitts (sgd)
.............................
.................
(Signature of Witness)
Daniel Gregory David Fitts
.............................
..................
(Name of Witness in Full)
The Banks
SIGNED for and on behalf of ) Michael W Goetz (sgd)
ABN AMRO AUSTRALIA LIMITED by ) .............................
its Authorised Signatoriesy ) ........................
in the presence of: ) M W Goetz
Geoff Rae (sgd)
............................. .............................
........................ ........................
(Signature of Witness) R J Long
Geoffrey Rae
.............................
........................
(Name of Witness in Full)
SIGNED for and on behalf of )
AUSTRALIA AND NEW ZEALAND ) G J Riley (sgd)
BANKING GROUP LIMITED by ) .............................
G. J. RILEY its ) .
Attorney pursuant to a Power ) (Signature)
of Attorney dated 9 October )
1992 and who declares that he )
has not received any notice )
of the revocation of such
Power of Attorney in the
presence of:
L Hsu (sgd)
.............................
........................
(Signature of Witness)
LYNDON HSU
.............................
........................
(Name of Witness in Full)
SIGNED for and on behalf of ) A Huse (sgd)
BA AUSTRALIA LIMITED by ) .............................
Alan Huse its ) ........................
Attorney pursuant to a Power ) (Signature)
of Attorney dated )
and who declares that he has )
not received any notice of
the revocation of such Power
of Attorney in the presence
of:
Elizabeth Edmonds (sgd)
.............................
........................
(Signature of Witness)
Elizabeth V Edmonds
.............................
........................
(Name of Witness in Full)
SIGNED for and on behalf of ) I Linsell (sgd)
COMMONWEALTH BANK OF ) .............................
AUSTRALIA by ) ........................
IAN RONALD LINSELL, its ) (Signature)
Attorney pursuant to a Power )
of Attorney dated 16 March )
1994 and who declares that he )
has not received any notice )
of the revocation of such )
Power of Attorney in the
presence of:
Daniel Fitts (sgd)
.............................
........................
(Signature of Witness)
Daniel Gregory David Fitts
.............................
........................
(Name of Witness in Full)
SIGNED by BRAD GLYNNE and ) B Glynne (sgd)
MICHAEL TIERNEY ) .............................
each as an authorised ) ........................
representative for CREDIT ) (Signature)
SUISSE and who by executing )
this Agreement warrants that )
the signatory is duly ) M Tierney (sgd)
authorised to execute this ) .............................
Agreement on behalf of Credit ........................
Suisse, in the presence of: (Signature)
Daniel Fitts (sgd)
.............................
........................
(Signature of Witness)
Daniel Gregory David Fitts
.............................
........................
(Name of Witness in Full)
SIGNED for and on behalf of ) A Dessewffy (sgd)
IBJ AUSTRALIA BANK LIMITED by ) .............................
its Attorney pursuant to a ) ........................
Power of Attorney dated 3rd ) (Signature)
May 1995 and who declares ) A E DESSEWFFY
that he has not received any ) G.M. Corporate & Project
notice of the revocation of ) Finance
such Power of Attorney in the
presence of: P R Deans (sgd)
P R DEANS
Daniel Fitts (sgd) Manager, Corporate Finance
.............................
........................
(Signature of Witness)
Daniel Gregory David Fitts
.............................
........................
(Name of Witness in Full)
The Arranger
SIGNED for and on behalf of ) A Huse (sgd)
BANK OF AMERICA NT & SA by ) .............................
ALAN HUSE its ) ........................
Attorney pursuant to a Power ) (Signature)
of Attorney dated )
2/1/96 and who declares )
that he has not received any )
notice of the revocation of
such Power of Attorney in the
presence of:
Elizabeth Edmonds (sgd)
.............................
........................
(Signature of Witness)
Elizabeth V Edmonds
.............................
........................
(Name of Witness in Full)
The Security Trustee
SIGNED for and on behalf of ) Loretta Venten (sgd)
COMMONWEALTH BANK OF ) .............................
AUSTRALIA by IAN RONALD ) ........................
LINSELL LORETTA MARY VENTEN, ) (Signature)
its Attorney pursuant to a )
Power of Attorney dated )
16 March 1994 and who )
declares that he has not )
received any notice of the
revocation of such Power of
Attorney in the presence of:
Daniel Fitts (sgd)
.............................
........................
(Signature of Witness)
Daniel Gregory David Fitts
.............................
........................
(Name of Witness in Full)
<PAGE>
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 20
1.3 Borrower's Liability 22
2. THE COMMITMENTS 22
2.1 Facilities 22
2.2 Working Capital and VPX Terms and Conditions 23
2.3 Extent of Each Bank's Liability 23
2.4 The VPX Guarantee Facility and the Issuing Banks 23
2.5 Several obligations 24
2.6 Several interests 24
2.7 Purpose 24
3. CONDITIONS PRECEDENT 25
3.1 Conditions Precedent to First Utilisation 25
3.2 Fee Letters 27
3.3 Conditions precedent to all Utilisations 27
3.4 Waiver of Conditions Precedent 27
3.5 Facility Agent to Notify Banks 27
4. UTILISATION NOTICES 28
4.1 Notice 28
4.2 Utilisation Notice - Advances and Drawdowns 28
4.3 Utilisation Notice - VPX Guarantees 29
4.4 Requirements of Utilisation Notice 29
4.5 Approved Form of VPX Guarantees 30
4.6 Agent to Notify Banks 30
4.7 Facility Agent's right to vary 30
4.8 Orderly Approach to Utilisations 31
5. MAKING OF ADVANCES 31
6. VPX GUARANTEE FACILITY 31
6.1 The Issuing Bank 31
6.2 Issue of VPX Guarantees 31
6.3 Indemnity to Issuing Bank and Facility Agent 32
6.4 Liabilities under VPX Guarantees Issued by Facility
Agent 32
6.5 Issuing Bank's Position 32
6.6 Qualifying Claims 33
6.7 General Indemnity 33
6.8 Obligations Unconditional 33
7. BILL FACILITY 34
7.1 Bills 34
7.2 Delivery to Medium Term Banks 34
7.3 Preparation of Bills by Banks 35
7.4 Completion of Bills 35
7.5 Completion of Blank Bills 35
7.6 Acceptance and Discount 35
7.7 Indemnity in Respect of Bills 36
7.8 Variation of Procedures 36
8. REPAYMENT, PREPAYMENT AND CANCELLATION 36
8.1 Expiry Date 36
8.2 Repayment of Advances 36
8.3 Revolving Advances 36
8.4 Voluntary Prepayment 37
8.5 Facility Agent to notify Banks 37
8.6 Voluntary Cancellation 38
38
8.7 Cancellations Permanent 38
9. SUPPORT LETTER OF CREDIT AND ENTERGY UNDERTAKING 38
9.1 Issue of Support Letter of Credit 38
9.2 Claims and Application under Support Letter of Credit 39
9.3 Replacement of Support Letter of Credit -
Overcollaterilisation 40
9.4 Replacement of Support Letter of Credit -
Undercollateralisation 40
10. MARGIN, INTEREST AND INTEREST PERIODS 41
10.1 Determination of Margin - Medium Term Facilities 41
10.2 Interest Periods 41
10.3 Calculation of Interest 42
10.4 Payment of Interest 42
10.5 Interest on Overdue Amounts 42
10.6 Notification of Interest Rate 42
11. DISTRIBUTIONS 42
11.1 Distributions 42
11.2 Manner of Distributions 43
11.3 Amount to be Distributed 43
11.4 Accumulation of Surplus Cash Flow 45
11.5 Release of Funds from Accumulation Account 45
11.6 Limit on Distributions from Accumulation Account 46
11.7 Repayments from Accumulation Account 46
12. BILL RELIQUIFICATION 47
12.1 Drawing of Bills 47
12.2 Attorney 47
12.3 Appointment Revoked 47
12.4 Indemnity 47
12.5 Notice 48
13. REVIEW, EXPIRY DATE 48
13.1 Expiry Date 48
13.2 Request for Extension 48
13.3 Response to Request 48
13.4 Acceptance by Borrower 48
13.5 Substitution of Working Capital and VPX Guarantee
Banks 49
13.6 Accession of Working Capital and VPX Guarantee Banks 49
13.7 No Obligation to Extend 50
14. FEES 50
14.1 Underwriting Fee 50
14.2 Agency Fee 50
14.3 Commitment Fee - Medium Term Facilities 50
14.4 VPX Guarantee Facility Fees 51
14.5 Working Capital Facilities Fees 51
15. PAYMENTS 51
15.1 Manner of Payment 51
15.2 Specific Duties 52
15.3 Application of Payments 52
15.4 Time and place 52
15.5 Merger 53
15.6 Conversion of Foreign Currency receipts to Dollars 53
15.7 Costs of Conversion 53
15.8 Foreign Currency indemnity 53
15.9 Payments in Reliance on Receipt 53
15.10Rounding 54
16. TAXES 54
16.1 No deduction for Taxes and no set-off or counterclaim 54
16.2 Payment net of Taxes 54
16.3 Termination 55
16.4 Tax Credits 55
16.5 No Disclosure of Tax Affairs 56
16.6 Right to Prepay Individual Bank 56
17. ILLEGALITY 56
18. INCREASED COST 57
18.1 Obligation to Indemnify 57
18.2 Right to Prepay Individual Bank 58
19. MITIGATION 58
19.1 Mitigation 58
19.2 No Liability for Banks 59
19.3 Costs and Expenses 59
20. REPRESENTATIONS AND WARRANTIES 59
20.1 General representations and warranties 59
20.2 Information representations and warranties 61
20.3 Corporate representations and warranties 62
20.4 The CitiPower Trust Representations and Warranties 62
20.5 Representations and warranties repeated 63
21. UNDERTAKINGS 63
21.1 Duration and Benefit 63
21.2 Information 63
21.3 General Undertakings 65
22. FINANCIAL UNDERTAKINGS 70
22.1 Historical DSCR and Support Letter of Credit 70
22.2 Future DSCR 71
22.3 Gearing Ratio 72
22.4 Total Debt 72
22.5 Verification of Model 72
23. DEFAULT AND TERMINATION 72
23.1 Events of Default 72
23.2 Facility Agent's rights upon Event of Default 75
23.3 Effect of Termination 75
23.4 Cash Cover 76
23.5 Breach of Historical DSCR 76
24. INDEMNITY 77
25. FACILITY AGENT AND SECURITY TRUSTEE 78
25.1 Appointment 78
25.2 Relationships 78
25.3 Communications 79
25.4 Instructions of Majority 79
25.5 Amendments 79
25.7 Determination of Majority 80
25.8 No need for inquiries 82
25.9 Facility Agent not bound to Enquire 82
25.10Notice of Default 82
25.11Copies of Communications 82
25.12Facility Agent as Bank 82
25.13Responsibility for Documentation 83
25.14Reliance 83
25.15Independent Investigation 83
25.16Liability 83
25.17Indemnities 84
25.18Observe Laws 84
25.19Replacement 84
25.20No Individual Enforcement 85
25.21Security Trust Deed Resolutions 85
25.22Security Trustee Undertakings 85
25.23Convening of Meetings by Security Trustee 85
25.24Deed of Covenant and Transaction Documents 85
26. SET-OFF 86
27. PRO RATA SHARING 86
27.1 Sharing 86
27.2 Claw Back of Excess Amounts 87
27.3 Recovery by Legal Action 87
28. EXPENSES AND STAMP DUTIES 87
28.1 Expenses 87
28.2 Stamp duties 88
29. ASSIGNMENTS AND CONFIDENTIALITY 88
29.1 Successors and assigns 88
29.2 Assignments by the Borrower 88
29.3 Assignments by Banks 89
29.4 Substitution 89
29.5 Increased Costs and Illegality 91
29.6 Sub-participations 91
29.7 Confidentiality 91
30. GOVERNING LAW AND JURISDICTION 92
30.1 Governing law 92
30.2 Jurisdiction 93
31. MISCELLANEOUS 93
31.1 Certificate of Agent 93
31.2 Notices 93
31.3 Continuing obligation 94
31.4 Settlement conditional 94
31.5 Further assurance 95
31.6 Severability of provisions 95
31.7 Remedies cumulative 95
31.8 Waiver 95
31.9 Consents and approvals 95
31.10Written waiver, consent and approval 95
31.11Consultants fees 96
31.12Moratorium legislation 96
31.13Counterparts 96
32. NO RELIANCE ON THE BANK OR FACILITY AGENT 96
SCHEDULE 1 97
SCHEDULE 2 99
SCHEDULE 3 100
SCHEDULE 4 101
SCHEDULE 5 102
SCHEDULE 6 104
SCHEDULE 7 106
SCHEDULE 8 108
SCHEDULE 9 109
SCHEDULE 10 114
SCHEDULE 11 115
SCHEDULE 12 119
SCHEDULE 13 122
<PAGE>
Multi-Option Syndicated Facility Agreement
$1,270,000,000
Dated: 5 January, 1996
CitiPower Ltd
Borrower
Commonwealth Bank of Australia
The Facility Agent
The Banks
Bank of America NT & SA
Arranger
Commonwealth Bank of Australia
Security Trustee
Exhibit C-1(q)
THIS AGREEMENT is made on 7 March 1996 between:
1. COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) of 14th
Floor, 385 Bourke Street, Melbourne, 3000, as Facility Agent
pursuant to the Facility Agreement (the FacilityAgent);
2. ENTERGY CORPORATION, of Poydras Plaza, 639 Loyola Avenue,
New Orleans LA 70161 (Entergy).
RECITALS
A. Citipower Pty (the Borrower), the Facility Agent and
certain other banks and financial institutions have on or about
the date of this Agreement entered into a multi-option
syndicated facility agreement (the Facility Agreement) which
sets out the terms and conditions upon which the Banks have
agreed to make the Facilities available to the Borrower.
B. It is a condition of the Facility Agreement that Entergy
provides the undertaking contained in this Agreement in support
of the obligations of the Borrower under the Medium Term
Facility.
C. The undertaking contained in this Agreement is given in
consideration of the Medium Term Banks providing and continuing
to provide financial accommodation to the Borrower in
accordance with the Facility Agreement.
D. This Agreement is the Entergy Undertaking defined as such
in the Facility Agreement.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Facility Agreement definitions
Words and Expressions which are defined in the Facility
Agreement have the same meanings when used in this Agreement
(unless otherwise defined in this Agreement, or unless the
context otherwise requires).
1.2 Interpretation
Clause 1.2 of the Facility Agreeme applies to the
interpretation of this Agreement (with such consequential
changes as are necessary to give effect to such interpretation)
as if set out in full in this Agreement.
1.3 Benefit of provisions
Without limiting the operation of any provision of this
Agreement in accordance with its terms, the representations,
warranties, undertakings, covenants or other obligations given
by Entergy enure to the Facility Agent for the benefit of the
Medium Term Banks.
2. ENTERGY UNDERTAKING
2.1 Undertaking
If:
(a) at any time the Facility Agent makes a claim under
the Support Letter of Credit under Clause 9.2(a) of the
Facility Agreement and the Support Letter of Credit is
denominated in US$; and
(b) the Equivalent in Dollars of the US$ proceeds of any
such claim are (before application in accordance with Clause
9.2(b) of the Facility Agreement) less than the Required
Support LC Amount,
Entergy irrevocably and unconditionally undertakes to the
Facility Agent for the benefit of the Medium Term Banks that it
will pay to the Facility Agent on demand an amount in US$ equal
to the lesser of:
(c) the Equivalent in US$ of the amount of the
deficiency; and
(d) US$7,367,000.
2.2 Liability unaffected by other events
The liability of Entergy under this Agreement is not
affected by any act, omission or thing which, but for this
provision, might in any way operate to release or otherwise
exonerate or discharge Entergy from any of its obligations
including (without limitation) the grant to the Borrower or any
other person of any time, waiver or other indulgence in
connection with a Transaction Document or the discharge or
release of the Borrower or any other person from any obligation
under a Transaction Document.
2.3 Continuing obligation
This Clause is a continuing obligation of Entergy and
remains in full force and effect for so long as the Borrower
has any liability or obligation to the Banks in respect of the
Medium Term Facilities under the Facility Agreement and until
all of those liabilities or obligations have been fully
discharged.
2.4 No withholdings
Entergy shall make all payments due under this Clause free
and clear and without deduction of any taxes, duties, levies,
imposts, deductions, charges and withholdings of the
Commonwealth of Australia or any other country or jurisdiction.
If Entergy is compelled by law to deduct any such tax, duty,
levy, impost, deduction, charge or withholding, it shall pay to
t the Facility Agent such additional amounts as may be necessary
so that the net payment of the amount due under this Clause
after that deduction is not less than the payment would have
been had there been no deduction.
2.5 Currency
Agent under this Clause is due and payable in US$ free of any
commissions and expenses relating to foreign currency
conversion or any other charges or expenses.
3. REPRESENTATIONS AND WARRANTIES
Entergy represents and warrants to the Facility Agent that:
(a) (Due incorporation): it is duly incorporated and
has the corporate power to own its own property and to carry on
its own business as is now being conducted;
(b) (Memorandum and Articles): the execution, delivery
and performance of this Agreement does not violate its
constituent document or any other document or agreement which
is binding on it or its assets or any order or decree of any
Governmental Body which is binding on it;
(c) (Corporate Power): it has the power, and has taken
all corporate and other action required, to enter into this
Agreement and to authorise the execution and delivery of this
Agreement and the performance of its obligations under this
Agreement; and
(d) (Legally binding obligation): this Agreement
constitutes a valid and legally binding obligation of Entergy,
enforceable in accordance with its terms except to the extent
that enforcement may be limited by generally applicable
principles of law or equity.
4. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise or delay in exercising any
right, power or remedy under this Agreement operates as a
waiver. A single or partial exercise of any right, power or
remedy does not preclude any other or further exercise of that
or any other right, power or remedy.
(b) The rights, powers and remedies provided in this
Agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
5. SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction is ineffective as to that
jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining
provisions of this Agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
6. ASSIGNMENTS
No party may assign or transfer any of its rights or
obligations under this Agreement without the prior written
consent of each of the other parties to this Agreement.
7. NOTICES
Any notices or other communication which must be given,
served or made under or in connection with this Agreement:
(a) must be in writing in order to be valid;
(b) is sufficient if executed by the party giving,
serving or making the same or on its behalf by any attorney,
director, secretary, other duly authorised officer or solicitor
of such party;
(c) will be deemed to have been duly given, served or
made in relation to a person if it is delivered or posted by
prepaid post to the address, or sent by fax to the number of
that person set out in Schedule 1 (or to such other address or
number as is notified in writing by that person to the other
parties from time to time); and
(d) will be deemed to be given, served or made:
(i) (in the case of prepaid post) on the fifth
day after the date of posting;
(ii) (in the case of facsimile) on receipt of a
transmission report confirming successful transmission; and
(iii) (in the case of delivery by hand) on
delivery.
8. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of the Australian
Capital Territory. Any legal action or proceedings which may
be brought at any time relating to any alleged breach of this
Agreement shall be subject to the non-exclusive jurisdiction of
the courts and appellate courts of the Australian Capital
Territory and Entergy waives any objection it may have now or
in the future to the venue of any such action or proceeding,
including any objection it may have now or in the future that
any such action or proceeding has been brought in an
inconvenient forum.
9. COUNTERPARTS
This Agreement may be executed in any number of
counterparts. All counterparts together will be taken to
constitute one instrument.
SCHEDULE 1
(1) Facility Agent
Address: 14th Floor
385 Bourke Street, Melbourne, Vic, 3000
Fax No: 613 9675 7825
Attention: Associate Vice President, Corporate
Finance
(2) Entergy
(i) Address: Poydras Plaza
639 Loyola Avenue, New Orleans
LA 70161
Fax No: 1 504 576 4455
Attention: Treasurer
(ii) Copy to Entergy Enterprises Inc
Address: 18401 Von Karman Avenue, Suite 330
Irvine CA 92715 USA
Fax No: 1 714 251 9833
Attention: Vice President
EXECUTED
FACILITY AGENT
SIGNED for and on behalf of )
COMMONWEALTH BANK OF AUSTRALIA )
by its attorney in the presence )
of: )
Signature
Signature
Print Name
Print Name
SIGNED for and on behalf of )
ENTERGY CORPORATION by its )
authorised officer in the )
presence of: )
Signature
Signature
Print Name
Print Name
Print Position
COMMONWEALTH BANK OF AUSTRALIA
ACN 123 123 124
(Facility Agent)
ENTERGY CORPORATION
(Entergy)
UNDERTAKING
Arthur Robinson & Hedderwicks
Melbourne
Ref PRH:NAT
Tel 9614 1011
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
2. ENTERGY UNDERTAKING 2
3. REPRESENTATIONS AND WARRANTIES 3
4. WAIVERS, REMEDIES CUMULATIVE 3
5. SEVERABILITY OF PROVISIONS 3
6. ASSIGNMENTS 3
7. NOTICES 4
8. GOVERNING LAW AND JURISDICTION 4
9. COUNTERPARTS 4
Exhibit C-2
ARKANSAS POWER & LIGHT COMPANY
TO
BANKERS TRUST COMPANY
(successor to Morgan Guaranty Trust Company of New York)
AND
STANLEY BURG
(successor to Henry A. Theis, Herbert E. Twyeffort,
Grainger S. Greene and John W. Flaherty)
AND
(as to property, real or personal, situated or being in Missouri)
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
(successor to Marvin A. Mueller)
As Trustees under Arkansas Power & Light Company's Mortgage and
Deed of Trust, dated as of October 1, 1944
____________________________
FIFTY-THIRD SUPPLEMENTAL INDENTURE
Providing among other things for
First Mortgage Bonds, 8_% Series due March 1, 2026
(Sixtieth Series)
____________________________
Dated as of March 1, 1996
<PAGE>
FIFTY-THIRD SUPPLEMENTAL INDENTURE
INDENTURE, dated as of March 1, 1996, between ARKANSAS POWER
& LIGHT COMPANY, a corporation of the State of Arkansas, whose
post office address is 425 West Capitol, Little Rock, Arkansas
72201 (hereinafter sometimes called the "Company"), and BANKERS
TRUST COMPANY (successor to Morgan Guaranty Trust Company of New
York), a corporation of the State of New York, whose post office
address is 4 Albany Street, New York, New York 10006 (hereinafter
sometimes called the "Corporate Trustee"), and STANLEY BURG
(successor to John W. Flaherty, Henry A. Theis, Herbert E.
Twyeffort and Grainger S. Greene), and (as to property, real or
personal, situated or being in Missouri) THE BOATMEN'S NATIONAL
BANK OF ST. LOUIS, a national banking association existing under
the laws of the United States of America (successor to Marvin A.
Mueller), whose post office address is 510 Locust Street, St.
Louis, Missouri 63101, (said Stanley Burg being hereinafter
sometimes called the "Co-Trustee", and The Boatmen's National
Bank of St. Louis being hereinafter sometimes called the
"Missouri Co-Trustee", and the Corporate Trustee, the Co-Trustee
and the Missouri Co-Trustee being hereinafter together sometimes
called the "Trustees"), as Trustees under the Mortgage and Deed
of Trust, dated as of October 1, 1944 (hereinafter sometimes
called the "Mortgage"), which Mortgage was executed and delivered
by the Company to secure the payment of bonds issued or to be
issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is hereby made, this
indenture (hereinafter called the "Fifty-third Supplemental
Indenture") being supplemental thereto.
WHEREAS, the Mortgage was appropriately filed or recorded in
various official records in the States of Arkansas, Missouri,
Tennessee and Wyoming; and
WHEREAS, an instrument, dated as of July 7, 1949, was
executed by the Company appointing Herbert E. Twyeffort as Co-
Trustee in succession to Henry A. Theis (resigned) under the
Mortgage, and by Herbert E. Twyeffort accepting said appointment,
and said instrument was appropriately filed or recorded in
various official records in the States of Arkansas, Missouri,
Tennessee and Wyoming; and
WHEREAS, an instrument, dated as of March 1, 1960, was
executed by the Company appointing Grainger S. Greene as Co-
Trustee in succession to Herbert E. Twyeffort (resigned) under
the Mortgage, and by Grainger S. Greene accepting said
appointment, and said instrument was appropriately filed or
recorded in various official records in the States of Arkansas,
Missouri, Tennessee and Wyoming; and
WHEREAS, by the Twenty-first Supplemental Indenture
mentioned below, the Company, among other things, appointed John
W. Flaherty as Co-Trustee in succession to Grainger S. Greene
(resigned) under the Mortgage, and John W. Flaherty accepted said
appointment; and
WHEREAS, by the Thirty-third Supplemental Indenture
mentioned below, the Company, among other things, appointed
Marvin A. Mueller as Missouri Co-Trustee, and Marvin A. Mueller
accepted said appointment; and
WHEREAS, by the Thirty-fifth Supplemental Indenture
mentioned below, the Company, among other things, appointed The
Boatmen's National Bank of St. Louis as Missouri Co-Trustee in
succession to Marvin A. Mueller (resigned) under the Mortgage,
and The Boatmen's National Bank of St. Louis accepted said
appointment; and
WHEREAS, an instrument, dated as of September 1, 1994, was
executed by the Company appointing Bankers Trust Company as
Trustee, and Stanley Burg as Co-Trustee, in succession to Morgan
Guaranty Trust Company of New York (resigned) and John W.
Flaherty (resigned), respectively, under the Mortgage and Bankers
Trust Company and Stanley Burg accepted said appointments, and
said instrument was appropriately filed or recorded in various
official records in the States of Arkansas, Missouri, Tennessee
and Wyoming; and
WHEREAS, by the Mortgage the Company covenanted that it
would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as might be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the lien of the
Mortgage any property thereafter acquired and intended to be
subject to the lien thereof; and
WHEREAS, the Company executed and delivered to the Trustees
the following supplemental indentures:
Designation Dated as of
First Supplemental Indenture July 1, 1947
Second Supplemental Indenture August 1, 1948
Third Supplemental Indenture October 1, 1949
Fourth Supplemental Indenture June 1, 1950
Fifth Supplemental Indenture October 1, 1951
Sixth Supplemental Indenture September 1, 1952
Seventh Supplemental Indenture June 1, 1953
Eighth Supplemental Indenture August 1, 1954
Ninth Supplemental Indenture April 1, 1955
Tenth Supplemental Indenture December 1, 1959
Eleventh Supplemental Indenture May 1, 1961
Twelfth Supplemental Indenture February 1, 1963
Thirteenth Supplemental Indenture April 1, 1965
Fourteenth Supplemental Indenture March 1, 1966
Fifteenth Supplemental Indenture March 1, 1967
Sixteenth Supplemental Indenture April 1, 1968
Seventeenth Supplemental Indenture June 1, 1968
Eighteenth Supplemental Indenture December 1, 1969
Nineteenth Supplemental Indenture August 1, 1970
Twentieth Supplemental Indenture March 1, 1971
Twenty-first Supplemental Indenture August 1, 1971
Twenty-second Supplemental Indenture April 1, 1972
Twenty-third Supplemental Indenture December 1, 1972
Twenty-fourth Supplemental Indenture June 1, 1973
Twenty-fifth Supplemental Indenture December 1, 1973
Twenty-sixth Supplemental Indenture June 1, 1974
Twenty-seventh Supplemental Indenture November 1, 1974
Twenty-eighth Supplemental Indenture July 1, 1975
Twenty-ninth Supplemental Indenture December 1, 1977
Thirtieth Supplemental Indenture July 1, 1978
Thirty-first Supplemental Indenture February 1, 1979
Thirty-second Supplemental Indenture December 1, 1980
Thirty-third Supplemental Indenture January 1, 1981
Thirty-fourth Supplemental Indenture August 1, 1981
Thirty-fifth Supplemental Indenture February 1, 1982
Thirty-sixth Supplemental Indenture December 1, 1982
Thirty-seventh Supplemental Indenture February 1, 1983
Thirty-eighth Supplemental Indenture December 1, 1984
Thirty-ninth Supplemental Indenture December 1, 1985
Fortieth Supplemental Indenture July 1, 1986
Forty-first Supplemental Indenture July 1, 1989
Forty-second Supplemental Indenture February 1, 1990
Forty-third Supplemental Indenture October 1, 1990
Forty-fourth Supplemental Indenture November 1, 1990
Forty-fifth Supplemental Indenture January 1, 1991
Forty-sixth Supplemental Indenture August 1, 1992
Forty-seventh Supplemental Indenture November 1, 1992
Forty-eighth Supplemental Indenture June 15, 1993
Forty-ninth Supplemental Indenture August 1, 1993
Fiftieth Supplemental Indenture October 1, 1993
Fifty-first Supplemental Indenture October 1, 1993
Fifty-second Supplemental Indenture June 15, 1994
which supplemental indentures were appropriately filed or
recorded in various official records in the States of Arkansas,
Missouri, Tennessee and Wyoming; and
WHEREAS, in addition to the property described in the
Mortgage, as heretofore supplemented, the Company has acquired
certain other property, rights and interests in property; and
WHEREAS, the Company has heretofore issued, in accordance
with the provisions of the Mortgage,
as supplemented, the following series of First Mortgage Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
3 1/8% Series due 1974 $ 30,000,000 None
2 7/8% Series due 1977 11,000,000 None
3 1/8% Series due 1978 7,500,000 None
2 7/8% Series due 1979 8,700,000 None
2 7/8% Series due 1980 6,000,000 None
3 5/8% Series due 1981 8,000,000 None
3 1/2% Series due 1982 15,000,000 None
4 1/4% Series due 1983 18,000,000 None
3 1/4% Series due 1984 7,500,000 None
3 3/8% Series due 1985 18,000,000 None
5 5/8% Series due 1989 15,000,000 None
4 7/8% Series due 1991 12,000,000 None
4 3/8% Series due 1993 15,000,000 None
4 5/8% Series due 1995 25,000,000 None
5 3/4% Series due 1996 25,000,000 None
5 7/8% Series due 1997 30,000,000 $30,000,000
7 3/8% Series due 1998 15,000,000 15,000,000
9 1/4% Series due 1999 25,000,000 None
9 5/8% Series due 2000 25,000,000 None
7 5/8% Series due 2001 30,000,000 None
8% Series due August 1, 2001 30,000,000 None
7 3/4% Series due 2002 35,000,000 None
7 1/2% Series due December 1, 2002 15,000,000 None
8% Series due 2003 40,000,000 None
8 1/8% Series due December 1, 2003 40,000,000 None
10 1/2% Series due 2004 40,000,000 None
9 1/4% Series due November 1, 1981 60,000,000 None
10 1/8% Series due July 1, 2005 40,000,000 None
9 1/8% Series due December 1, 2007 75,000,000 None
9 7/8% Series due July 1, 2008 75,000,000 None
10 1/4% Series due February 1, 2009 60,000,000 None
16 1/8% Series due December 1, 1986 70,000,000 None
4 1/2% Series due September 1, 1983 1,202,000 None
5 1/2% Series due January 1, 1988 598,310 None
5 5/8% Series due May 1, 1990 1,400,000 None
6 1/4% Series due December 1, 1996 3,560,000 560,000
9 3/4% Series due September 1, 2000 4,600,000 1,600,000
8 3/4% Series due March 1, 1998 9,800,000 3,400,000
17 3/8% Series due August 1, 1988 75,000,000 None
16 1/2% Series due February 1, 1991 80,000,000 None
13 3/8% Series due December 1, 2012 75,000,000 None
13 1/4% Series due February 1, 2013 25,000,000 None
14 1/8% Series due December 1, 2014 100,000,000 None
Pollution Control Series A 128,800,000 None
10 1/4% Series due July 1, 2016 50,000,000 None
9 3/4% Series due July 1, 2019 75,000,000 75,000,000
10% Series due February 1, 2020 150,000,000 150,000,000
10 3/8% Series due October 1, 2020 175,000,000 23,818,000
Solid Waste Disposal Series A 21,066,667 21,066,667
Solid Waste Disposal Series B 28,440,000 28,440,000
7 1/2% Series due August 1, 2007 100,000,000 100,000,000
7.90% Series due November 1, 2002 25,000,000 25,000,000
8.70% Series due November 1, 2022 25,000,000 25,000,000
Pollution Control Series B 46,875,000 46,875,000
6.65% Series due August 1, 2005 115,000,000 115,000,000
6% Series due October 1, 2003 155,000,000 155,000,000
7% Series due October 1, 2023 175,000,000 175,000,000
Pollution Control Series C 20,319,000 20,319,000
Pollution Control Series D 9,586,400 9,586,400
which bonds are also hereinafter sometimes called bonds of the
First through Fifty-ninth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of
each series of bonds (other than the First Series) issued
thereunder and of the coupons to be attached to coupon bonds of
such series shall be established by Resolution of the Board of
Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof,
and may also contain such provisions not inconsistent with the
provisions of the Mortgage as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or referring
to the terms and conditions upon which such bonds are to be
issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly
reserved to or in any way conferred upon the Company by any
provision of the Mortgage, whether such power, privilege or right
is in any way restricted or is unrestricted, may be in whole or
in part waived or surrendered or subjected to any restriction if
at the time unrestricted or to additional restriction if already
restricted, and the Company may enter into any further covenants,
limitations or restrictions for the benefit of any one or more
series of bonds issued thereunder, or the Company may cure any
ambiguity contained therein or in any supplemental indenture, or
may establish the terms and provisions of any series of bonds
other than said First Series, by an instrument in writing
executed and acknowledged by the Company in such manner as would
be necessary to entitle a conveyance of real estate to record in
all of the states in which any property at the time subject to
the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series of
bonds and (pursuant to the provisions of Section 120 of the
Mortgage) to add to its covenants and agreements contained in the
Mortgage, as heretofore supplemented, certain other covenants and
agreements to be observed by it and to alter and amend in certain
respects the covenants and provisions contained in the Mortgage,
as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this
Fifty-third Supplemental Indenture, and the terms of the bonds of
the Sixtieth Series, hereinafter referred to, have been duly
authorized by the Board of Directors of the Company by
appropriate Resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One
Dollar to it duly paid by the Trustees at or before the ensealing
and delivery of these presents, the receipt whereof is hereby
acknowledged, and in further evidence of assurance of the estate,
title and rights of the Trustees and in order further to secure
the payment of both the principal of and interest and premium, if
any, on the bonds from time to time issued under the Mortgage,
according to their tenor and effect and the performance of all
the provisions of the Mortgage (including any instruments
supplemental thereto and any modifications made as in the
Mortgage provided) and of said bonds, hereby grants, bargains,
sells, releases, conveys, assigns, transfers, mortgages,
hypothecates, affects, pledges, sets over and confirms (subject,
however, to Excepted Encumbrances as defined in Section 6 of the
Mortgage) unto The Boatmen's National Bank of St. Louis (as to
property, real or personal, situated or being in Missouri) and
Stanley Burg (but, as to property, real or personal, situated or
being in Missouri, only to the extent of his legal capacity to
hold the same for the purposes hereof) and (to the extent of its
legal capacity to hold the same for the purposes hereof) to
Bankers Trust Company, as Trustees under the Mortgage, and to
their successor or successors in said trust, and to them and
their successors and assigns forever, all property, real,
personal or mixed, of any kind or nature acquired by the Company
after the date of the execution and delivery of the Mortgage
(except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned or, subject to the
provisions of Section 87 of the Mortgage, hereafter acquired by
the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing
or of any general description contained in this Fifty-third
Supplemental Indenture) all lands, power sites, flowage rights,
water rights, water locations, water appropriations, ditches,
flumes, reservoirs, reservoir sites, canals, raceways, dams, dam
sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all street and interurban railway and transportation
lines and systems, terminal systems and facilities; all bridges,
culverts, tracks, railways, sidings, spurs, wyes, roadbeds,
trestles and viaducts; all overground and underground trolleys
and feeder wires; all telephone, radio and television systems,
air-conditioning systems and equipment incidental thereto, water
works, water systems, steam heat and hot water plants,
substations, lines, service and supply systems, ice or
refrigeration plants and equipment, offices, buildings and other
structures and the equipment thereof, all machinery, engines,
boilers, dynamos, electric, gas and other machines, regulators,
meters, transformers, generators, motors, electrical, gas and
mechanical appliances, conduits, cables, water, steam heat, gas
or other pipes, gas mains and pipes, service pipes, fittings,
valves and connections, pole and transmission lines, wires,
cables, tools, implements, apparatus, furniture and chattels; all
municipal and other franchises, consents or permits; all lines
for the transmission and distribution of electric current, gas,
steam heat or water for any purpose including towers, poles,
wires, cables, pipes, conduits, ducts and all apparatus for use
in connection therewith; all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of
way and other rights in or relating to real estate or the
occupancy of the same and (except as herein or in the Mortgage,
as heretofore supplemented, expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property hereinbefore or in
the Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in
anywise appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income,
product and profits thereof and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which
the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel
thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, all the property,
rights and franchises acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or in any
other way) after the date hereof, except any herein or in the
Mortgage, as heretofore supplemented, expressly excepted, shall
be and are as fully granted and conveyed hereby and by the
Mortgage and as fully embraced within the lien hereof and the
lien of the Mortgage, as heretofore supplemented, as if such
property, rights and franchises were now owned by the Company and
were specifically described herein or in the Mortgage and
conveyed hereby or thereby.
PROVIDED THAT the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this Fifty-third
Supplemental Indenture and from the lien and operation of the
Mortgage, as heretofore supplemented, viz: (1) cash, shares of
stock, bonds, notes and other obligations and other securities
not hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, materials or supplies held for the purpose of sale in
the usual course of business or for the purpose of repairing or
replacing (in whole or in part) any street cars, rolling stock,
trolley coaches, motor coaches, buses, automobiles or other
vehicles or aircraft, and fuel, oil and similar materials and
supplies consumable in the operation of any properties of the
Company; street cars, rolling stock, trolley coaches, motor
coaches, buses, automobiles and other vehicles and all aircraft;
(3) bills, notes and accounts receivable, judgments, demands and
choses in action, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage, as
heretofore supplemented, or covenanted so to be; the Company's
contractual rights or other interest in or with respect to tires
not owned by the Company; (4) the last day of the term of any
lease or leasehold which may hereafter become subject to the lien
of the Mortgage; (5) electric energy, gas, ice, and other
materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the
ordinary course of its business; all timber, minerals, mineral
rights and royalties; (6) the Company's franchise to be a
corporation; (7) the properties heretofore sold or in the process
of being sold by the Company and heretofore released from the
Mortgage and Deed of Trust dated as of October 1, 1926 from
Arkansas Power & Light Company to Guaranty Trust Company of New
York, trustee, and specifically described in a release instrument
executed by Guaranty Trust Company of New York, as trustee, dated
October 13, 1938, which release has heretofore been delivered by
the said trustee to the Company and recorded by the Company in
the office of the Recorder for Garland County, Arkansas, in
Record Book 227, Page 1, all of said properties being located in
Garland County, Arkansas; and (8) any property heretofore
released pursuant to any provisions of the Mortgage and not
heretofore disposed of by the Company; provided, however, that
the property and rights expressly excepted from the lien and
operation of the Mortgage, as heretofore supplemented, and this
Fifty-third Supplemental Indenture in the above subdivisions (2)
and (3) shall (to the extent permitted by law) cease to be so
excepted in the event and as of the date that any or all of the
Trustees or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XIII of the Mortgage by reason of the
occurrence of a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed by the Company as aforesaid, or intended so to be,
unto The Boatmen's National Bank of St. Louis (as to property,
real or personal, situated or being in Missouri), and unto
Stanley Burg (but, as to property, real or personal, situated or
being in Missouri, only to the extent of his legal capacity to
hold the same for the purposes hereof) and (to the extent of its
legal capacity to hold the same for the purposes hereof) unto
Bankers Trust Company, as Trustees, and their successors and
assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage, as
heretofore supplemented, this Fifty-third Supplemental Indenture
being supplemental to the Mortgage.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Mortgage, as heretofore supplemented, shall affect and
apply to the property hereinbefore described and conveyed and to
the estate, rights, obligations and duties of the Company and
Trustees and the beneficiaries of the trust with respect to said
property, and to the Trustees and their successors in the trust
in the same manner and with the same effect as if said property
had been owned by the Company at the time of the execution of the
Mortgage, and had been specifically and at length described in
and conveyed to said Trustees, by the Mortgage as a part of the
property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustees and their successors in said trust under the Mortgage,
as follows:
ARTICLE I
SIXTIETH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "8_%
Series due March 1, 2026" (herein sometimes called the "Sixtieth
Series"), each of which shall also bear the descriptive title
"First Mortgage Bond", and the form thereof, which shall be
established by Resolution of the Board of Directors of the
Company, shall contain suitable provisions with respect to the
matters hereinafter in this Section specified. Bonds of the
Sixtieth Series (which shall be initially issued in the aggregate
principal amount of $85,000,000) shall mature on March 1, 2026,
shall be issued as fully registered bonds in the denomination of
One Thousand Dollars and, at the option of the Company, in any
multiple or multiples of One Thousand Dollars (the exercise of
such option to be evidenced by the execution and delivery
thereof), shall bear interest at the rate of 8_% per annum, the
first interest payment to be made on September 1, 1996 for the
period from March 27, 1996 to September 1, 1996 with subsequent
interest payments payable semi-annually on March 1 and September
1 of each year, shall be dated as in Section 10 of the Mortgage
provided, and the principal of and interest on each said bond
shall be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts.
(I) Bonds of the Sixtieth Series shall not be redeemable
prior to March 1, 2001. On and after March 1, 2001, bonds of the
Sixtieth Series shall be redeemable at the option of the Company
in whole at any time, or in part from time to time, prior to
maturity, upon notice, as provided in Section 52 of the Mortgage,
mailed at least 30 days prior to the date fixed for redemption,
at the following general redemption prices, expressed in
percentages of the principal amount of the bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12-month period ending the last day of
February,
2002 106.563% 2015 100.875%
2003 106.125% 2016 100.438%
2004 105.688% 2017 100.000%
2005 105.250% 2018 100.000%
2006 104.813% 2019 100.000%
2007 104.375% 2020 100.000%
2008 103.938% 2021 100.000%
2009 103.500% 2022 100.000%
2010 103.063% 2023 100.000%
2011 102.625% 2024 100.000%
2012 102.188% 2025 100.000%
2013 101.750% 2026 100.000%
2014 101.313%
in each case together with accrued interest to the date fixed for
redemption.
(II) On and after March 1, 2001, bonds of the Sixtieth Series
shall also be redeemable in whole at any time, or in part from
time to time, prior to maturity, upon like notice, by the
application (either at the option of the Company or pursuant to
the requirements of the Mortgage) of cash delivered to or
deposited with the Corporate Trustee pursuant to the provisions
of Section 39 or Section 64 of the Mortgage or with the Proceeds
of Released Property at the special redemption price of 100% of
the principal amount of the bonds to be redeemed together with
accrued interest to the date fixed for redemption.
(III) At the option of the registered owner, any bonds of the
Sixtieth Series, upon surrender thereof for cancellation at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, shall be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized
denominations.
Bonds of the Sixtieth Series shall be transferable, upon the
surrender thereof for cancellation, together with a written
instrument of transfer in form approved by the registrar duly
executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Sixtieth
Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge,
as provided in Section 12 of the Mortgage, but the Company hereby
waives any right to make a charge in addition thereto for any
exchange or transfer of bonds of said Series.
Upon the delivery of this Fifty-third Supplemental Indenture
and upon compliance with the applicable provisions of the
Mortgage, as heretofore supplemented, there shall be an initial
issue of bonds of the Sixtieth Series for the aggregate principal
amount of $85,000,000.
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants that, so long as any of the
bonds of the Sixtieth Series are Outstanding, it will not declare
any dividends on its Common Stock (other than (a) a dividend
payable solely in shares of its Common Stock, or (b) a dividend
payable in cash in cases where, concurrently with the payment of
such dividend, an amount in cash equal to such dividend is
received by the Company as a capital contribution or as the
proceeds of the issue and sale of shares of its Common Stock) or
make any distribution on outstanding shares of its Common Stock
or purchase or otherwise acquire for value any outstanding shares
of its Common Stock (otherwise than in exchange for or out of the
proceeds from the sale of other shares of its Common Stock) if,
after such dividend, distribution, purchase or acquisition, the
aggregate amount of such dividends, distributions, purchases and
acquisitions paid or made subsequent to February 29, 1996 exceeds
(without giving effect to (i) any of such dividends,
distributions, purchases or acquisitions, or (ii) any net
transfers from retained earnings to stated capital accounts) the
sum of (a) the aggregate amount credited subsequent to February
29, 1996 to retained earnings, (b) $350,000,000 and (c) such
additional amount as shall be authorized or approved, upon
application by the Company, by the Securities and Exchange
Commission, or by any successor commission thereto, under the
Public Utility Holding Company Act of 1935.
For the purposes of this Section 2 the aggregate amount
credited subsequent to February 29, 1996 to retained earnings
shall be determined in accordance with generally accepted
accounting principles and practices after making provision for
dividends upon any preferred stock of the Company, accumulated
subsequent to such date, but in such determination there shall
not be considered charges to retained earnings applicable to the
period prior to February 29, 1996, including, but not limited to,
charges to retained earnings for write-offs or write-downs of
book values of assets owned by the Company on February 29, 1996.
ARTICLE III
THE COMPANY RESERVES THE RIGHT TO AMEND
CERTAIN PROVISIONS OF THE MORTGAGE
SECTION 3. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any subsequent series, to amend the Mortgage, as
heretofore amended and supplemented, as follows:
To amend clause (c) of subdivision (4) of Section 59 of the
Mortgage to read substantially as follows:
"(c) the principal amount of each bond or fraction of
bond to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 26 or X%,
as hereinafter defined, of the principal amount of each bond
or fraction of bond to the authentication and delivery of
which the Company shall be entitled under the provisions of
Section 29 hereof, by virtue of compliance with all
applicable provisions of said Section 26 or Section 29, as
the case may be (except as hereinafter in this Section
otherwise provided); provided, however, that (except as
hereinafter in this Section otherwise provided) the
application for such release shall operate as a waiver by
the Company of such right to the authentication and delivery
of each such bond or fraction thereof on the basis of which
right such property is released and to such extent no such
bond or fraction thereof may thereafter be authenticated and
delivered hereunder, and any Corresponding Retired Bonds or
Corresponding Qualified Lien Bonds, as hereinafter defined,
shall be deemed to have been made the basis of the release
of such property; for purposes of this clause (c), the
following definitions shall apply:
The term "X%" shall mean the reciprocal of the
percentage appearing in Section 25 of the Mortgage at the
time that the Corresponding Retired Bond, as hereinafter
defined, was originally authenticated and delivered;
provided that if Section 5 of the Mortgage is amended as
provided in Section 6 of this Supplemental Indenture, then
X% shall mean 10/8;
The term "Corresponding Retired Bond" shall mean the
bond or fraction of a bond selected by the Company to serve
as the basis under the provisions of Section 29 of the
Mortgage for such right to the authentication and delivery
of bond(s) or fraction of a bond so waived; and
The term "Corresponding Qualified Lien Bond" shall mean
the Qualified Lien Bond selected by the Company to serve as
the basis under the provisions of Section 26 of the Mortgage
for such right to the authentication and delivery of bond(s)
or fraction of a bond so waived."
SECTION 4. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Section 60 of the Mortgage by inserting "(I)" before
the word "Unless" in the first line thereof, and by adding a
subsection (II) at the end of Section 60 to read substantially as
follows:
"(II) Unless the Company is in default in the payment
of the interest on any bonds then Outstanding hereunder or
one or more of the Defaults defined in Section 65 hereof
shall have occurred and be continuing, the Company may
obtain the release of any of the Mortgaged and Pledged
Property that is not Funded Property, except cash then held
by the Corporate Trustee (provided, however, that Qualified
Lien Bonds deposited with the Corporate Trustee shall not be
released or surrendered except as provided in Article IX
hereof and obligations secured by purchase money mortgage
deposited with the Corporate Trustee shall not be released
except as provided in Section 61 hereof), and the Corporate
Trustee shall release all its right, title and interest in
and to the same from the Lien hereof upon application of the
Company and receipt by the Corporate Trustee of the
following (in lieu of complying with the requirements of
Section 59 hereof):
(1) an Officers' Certificate complying with
the requirements of Section 121 hereof and describing
in reasonable detail the property to be released and
requesting such release, and stating:
(a) that the Company is not in
default in the payment of interest on any bonds
then Outstanding hereunder and that no Default has
occurred and is continuing;
(b) that the Company has decided
to release from the Lien hereof the property to be
released;
(c) that the property to be
released is not Funded Property;
(d) that (except in any case where
a governmental body or agency has exercised a
right to order the Company to divest itself of
such property) such release is in the opinion of
the signers desirable in the conduct of the
business of the Company; and
(e) the amount of cash and/or
principal amount of obligations secured by
purchase money mortgage received or to be received
for any portion of said property sold to any
Federal, State, County, Municipal or other
governmental bodies or agencies or public or semi-
public corporations, districts, or authorities;
(2) an Engineer's Certificate, made and
dated not more than ninety (90) days prior to the date
of such application, stating:
(a) the fair value, in the opinion
of the signers, of the property (or securities) to
be released;
(b) that in the opinion of the
signers such release will not impair the security
under this Indenture in contravention of the
provisions hereof; and
(c) that the Company has Property
Additions constituting property that is not Funded
Property (not including the Property Additions
then being released) of a Cost or fair value to
the Company (whichever is less) of not less than
one dollar ($1) (after making any deductions and
any additions pursuant to the provisions of
Section 4 hereof) after deducting the Cost of the
property then being released;
(3) an Opinion of Counsel complying with the
requirements of Section 121 hereof and stating that all
conditions precedent provided for in this Indenture
relating to the release of the property in question
have been complied with; and
(4) in case the Corporate Trustee is
requested to release any franchise, an Opinion of
Counsel complying with the requirements of Section 121
hereof and stating that in his or their opinion such
release will not impair to any material extent the
right of the Company to operate any of its remaining
properties."
To amend clause (a) of subdivision (3) of Section 59 to read
substantially as follows:
"(a) that the Company has decided to release from the
Lien hereof the property to be released;"
To amend clause (b) of subdivision (4) of Section 59 to
delete the words "that no such application for release may be
based in whole or in part upon Property Additions acquired, made
or constructed more than five years prior to the last day of the
calendar month immediately preceding the date of such
application, and provided, further,"
SECTION 5. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Article XIX of the Mortgage to read substantially as
follows:
ARTICLE XIX.
Meetings and Consents of Bondholders.
SECTION 107. Modifications and alterations of this
Indenture and/or of any indenture supplemental hereto and/or
of the rights and obligations of the Company and/or of the
rights of the holders of bonds and coupons issued hereunder
may be made as provided in this Article XIX.
SECTION 108. The Corporate Trustee may at any time
call a meeting of the holders of bonds of one or more, or
all, series and it shall call such a meeting on written
request of the Company, given pursuant to a Resolution of
its Board of Directors, or a resolution of the holders of a
majority or more in principal amount of the bonds of such
series Outstanding hereunder, considered as one class, at
the time of such request. In the event of the Corporate
Trustee's failing for ten (10) days to call a meeting after
being thereunto requested by the Company or bondholders as
above set forth, holders of Outstanding bonds in the amount
above specified in this Section or the Company, pursuant to
Resolution of its Board of Directors, may call such meeting.
Every such meeting called by and at the instance of the
Corporate Trustee shall be held in the Borough of Manhattan,
The City of New York, or with the written approval of the
Company, at any other place in the United States of America,
and written notice thereof, stating the place and time
thereof and in general terms the business to be submitted,
shall be mailed by the Corporate Trustee not less than
thirty (30) days before such meeting (a) to each registered
holder of bonds of the series in respect of which such
meeting is being called then Outstanding hereunder addressed
to him at his address appearing on the registry books, (b)
to all other holders of bonds of such series then
Outstanding hereunder the names and addresses of whom are
preserved by the Corporate Trustee as required by the
provisions of Section 43 hereof and (c) to the Company
addressed to it at _____________________ (or at such other
address as may be designated by the Company from time to
time), and, if any bonds of such series shall not be in
fully registered form, shall be published by the Corporate
Trustee at least once a week for four (4) successive calen
dar weeks immediately preceding the meeting, upon any
secular day of each such calendar week, which need not be
the same day of each week, in a Daily Newspaper, printed in
the English language, and published and of general
circulation in The City of New York; provided, however,
that, if such notice by publication shall have been given,
the mailing of such notice to any bondholders shall in no
case be a condition precedent to the validity of any action
taken at such meeting. Any meeting of holders of the bonds
of one or more, or all, series shall be valid without notice
if the holders of all bonds of such series then Outstanding
hereunder are present in person or by proxy and if the
Company and the Corporate Trustee are present by duly author
ized representatives, or if notice is waived in writing
before or after the meeting by the Company, the holders of
all bonds of such series Outstanding hereunder and by the
Corporate Trustee, or by such of them as are not present in
person or by proxy.
SECTION 109. Officers and nominees of the Corporate
Trustee and of the Company and of the Co-Trustee or their or
its nominees may attend such meeting, but shall not as such
be entitled to vote thereat. Attendance by bondholders may
be in person or by proxy. In order that the holder of any
bond payable to bearer and his proxy may attend and vote
without producing his bond, the Corporate Trustee, with
respect to any such meeting, may make and from time to time
vary such regulations as it shall think fit for deposit of
bonds with, (i) any bank or trust or insurance company, or
(ii) any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization, or similar
fund or funds, or (iii) the United States of America, any
Territory thereof, the District of Columbia, any State of
the United States, any municipality in any State of the
United States or any public instrumentality of the United
States, any State or Territory, or (iv) any other person or
corporation satisfactory to the Corporate Trustee, and for
the issue to the persons depositing the same of certificates
by such depositaries entitling the holders thereof to be
present and vote at any such meeting and to appoint proxies
to represent them and vote for them at any such meeting in
the same way as if the persons so present and voting, either
personally or by proxy, were the actual bearers of the bonds
in respect of which such certificates shall have been issued
and any regulations so made shall be binding and effective.
In lieu of or in addition to providing for such deposit, the
Corporate Trustee may, in its discretion, permit such
institutions to issue certificates stating that bonds were
exhibited to them, which certificates shall entitle the
holders thereof to vote at any meeting only if the bonds
with respect to which they are issued are not produced at
the meeting by any other person and are not at the time of
the meeting registered in the name of any other person.
Each such certificate shall state the date on which the bond
or bonds in respect of which such certificate shall have
been issued were deposited with or exhibited to such
institution and the series, maturities and serial numbers of
such bonds. A bondholder in any of the foregoing categories
may sign such a certificate in his own behalf. In the event
that two or more such certificates shall be issued with
respect to any bond or bonds, the certificate bearing the
latest date shall be recognized and be deemed to supersede
any certificate or certificates previously issued with
respect to such bond or bonds. If any such meeting shall
have been called under the provisions of Section 108 hereof,
by bondholders or by the Company, and the Corporate Trustee
shall fail to make regulations as above authorized, then
regulations to like effect for such deposit, or exhibition
of bonds and the issue of certificates by (i) any bank or
trust or insurance company, or (ii) any trustee, secretary,
administrator or other proper officer of any pension,
welfare, hospitalization, or similar fund or funds, or (iii)
by the United States of America, any Territory thereof, the
District of Columbia, any State of the United States, any
municipality in any State of the United States or any public
instrumentality of the United States, any State or Territory
shall be similarly binding and effective for all purposes
hereof if adopted or approved by the bondholders calling
such meeting or by the Board of Directors of the Company, if
such meeting shall have been called by the Company, provided
that in either such case copies of such regulations shall be
filed with the Corporate Trustee. A bondholder in any of
the foregoing categories may sign such a certificate in his
own behalf.
SECTION 110. Subject to the restrictions specified in
Sections 109 and 113 hereof, any registered holder of bonds
Outstanding hereunder and any holder of a certificate (not
superseded) provided for in Section 109 hereof relating to
bonds Outstanding hereunder, in either case of the series in
respect of which a meeting shall have been called, shall be
entitled in person or by proxy to attend and vote at such
meeting as a holder of the bonds registered or certified in
the name of such holder without producing such bonds. All
others seeking to attend or vote at such meeting in person
or by proxy must, if required by any authorized
representative of the Corporate Trustee or the Company or by
any other bondholder, produce the bonds claimed to be owned
or represented at such meeting and every one seeking to
attend or vote shall, if required as aforesaid, produce such
further proof of bond ownership or personal identity as
shall be satisfactory to the authorized representative of
the Corporate Trustee, or if none be present then to the
Inspectors of Votes hereinafter provided for. Proxies shall
be witnessed or in the alternative may (a) have the
signature guaranteed by a bank or trust company or a
registered dealer in securities participating in a
recognized signature guarantee medallion program, (b) be
acknowledged before a Notary Public or other officer
authorized to take acknowledgements, or (c) have their gen
uineness otherwise established to the satisfaction of the
Inspector of Votes. All proxies and certificates presented
at any meeting shall be delivered to said Inspectors of
Votes and filed with the Corporate Trustee.
SECTION 111. Persons nominated by the Corporate
Trustee if it is represented at the meeting shall act as
temporary Chairman and Secretary, respectively, of the
meeting, but if the Corporate Trustee shall not be
represented or shall fail to nominate such persons or if any
person so nominated shall not be present, the bondholders
and proxies present shall by a majority vote of bonds
represented elect another person or other persons from those
present to act as temporary Chairman and/or Secretary. A
permanent Chairman and a permanent Secretary of such meeting
shall be elected from those present by the bondholders and
proxies present by a majority vote of bonds represented.
The Corporate Trustee, if represented at the meeting, shall
appoint two Inspectors of Votes who shall decide as to the
right of anyone to vote and shall count all votes cast at
such meeting, except votes on the election of a Chairman and
Secretary, both temporary and permanent, as aforesaid, and
who shall make and file with the permanent Secretary of the
meeting their verified written report in duplicate of all
such votes so cast at said meeting. If the Corporate
Trustee shall not be represented at the meeting or shall
fail to nominate such Inspectors of Votes or if either
Inspector of Votes fails to attend the meeting, the vacancy
shall be filled by appointment by the permanent Chairman of
the meeting.
SECTION 112. The holders of a majority in aggregate
principal amount of the bonds Outstanding hereunder of the
series with respect to which a meeting shall have been
called as hereinbefore provided, considered as one class,
shall constitute a quorum for a meeting of holders of bonds
of such series; provided, that if any action is to be taken
at such meeting which this Indenture expressly provides may
be taken by the holders of a specified percentage which is
less than a majority in principal amount of the bonds of
such series Outstanding hereunder, considered as one class,
then the holders of such specified percentage in principal
amount of the bonds of such series Outstanding hereunder,
considered as one class, shall constitute a quorum. In the
absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of holders of bonds of such series, be dissolved.
In any other case the meeting may be adjourned for such
period or periods as may be determined and announced by the
chairman of the meeting prior to the adjournment thereof.
SECTION 113. Any modification or alteration of this
Indenture and/or of any indenture supplemental hereto and/or
of the rights and obligations of the Company and/or the
rights of the holders of bonds and/or coupons issued
hereunder in any particular may be made at a meeting of
bondholders duly convened and held in accordance with the
provisions of this Article, but only by resolution duly
adopted by the affirmative vote of the holders of a majority
in principal amount of the bonds Outstanding hereunder,
considered as one class (or, if such modification or
alteration shall directly affect the holders of bonds of one
or more, but less than all, series then Outstanding
hereunder, then the affirmative vote only of the holders of
a majority in aggregate principal amount of the bonds of the
series directly affected then Outstanding hereunder,
considered as one class), when such meeting is held, and in
every case approved by Resolution of the Board of Directors
of the Company as hereinafter specified; provided, however,
that no such modification or alteration shall, without the
consent of the holder of any bond issued hereunder affected
thereby, permit (1) the extension of the maturity of the
principal of, or interest on, such bond, or (2) the
reduction in such principal or the rate of interest thereon
or any other modification in the terms of payment of such
principal or interest, or (3) the creation of any lien rank
ing prior to, or on a parity with, the Lien of this
Indenture with respect to any of the Mortgaged and Pledged
Property, or (4) the deprivation of any non-assenting
bondholder of a lien upon the Mortgaged and Pledged Property
for the security of his bonds (subject only to Excepted
Encumbrances) or (5) the reduction of the percentage
required by the provisions of this Section for the taking of
any action under this Section with respect to any bond
Outstanding hereunder. For all purposes of this Article,
the Trustees shall be entitled to rely upon an Opinion of
Counsel with respect to the extent, if any, as to which any
action taken at such meeting affects the rights under this
Indenture or under any indenture supplemental hereto of any
holders of bonds then Outstanding hereunder.
Bonds owned and/or held by and/or for account of and/or
for the benefit or interest of the Company, or any
corporation of which the Company shall own twenty-five per
centum (25%) or more of the outstanding voting stock, shall
not be deemed Outstanding for the purpose of any vote or of
any calculation of bonds Outstanding in Article XVI hereof
or in this Article XVIII or for the purpose of the quorum
provided for in Section 112 of this Article; provided,
however, that bonds so owned or held which have been pledged
in good faith may be regarded as Outstanding for purposes of
this paragraph if the pledgee establishes to the
satisfaction of the Corporate Trustee the pledgee's right to
vote or give consents with respect to such bonds and that
the pledgee is not the Company or a corporation of which the
Company shall own twenty-five per centum (25%) or more of
the outstanding voting stock. For all purposes of this
Indenture, the Corporate Trustee, the Chairman and Secretary
of any meeting held pursuant to the provisions of this
Article XIX and the Inspectors of Votes at any such meeting
shall (unless the fact is challenged at such meeting by any
holder of bonds Outstanding hereunder entitled to vote at
such meeting and a contrary fact is established) be entitled
conclusively to rely upon a notification in writing by an
officer of the Company, specifying the principal amount of
bonds Outstanding hereunder owned by or held by or for the
account of or for the benefit or interest of the Company or
any corporation of which the Company shall own twenty-five
per centum (25%) or more of the outstanding voting stock, or
stating that no such bonds are so owned or held. In case
the meeting shall have been called otherwise than on the
written request of the Company, the Corporate Trustee shall
be entitled conclusively to assume that none of the bonds
Outstanding hereunder is so owned or held unless a
notification by the Company is furnished as in this
paragraph provided or unless the fact is challenged at such
meeting by any holder of bonds Outstanding hereunder and a
contrary fact is established.
SECTION 114. A record in duplicate of the proceedings
of each meeting of bondholders shall be prepared by the
permanent Secretary of the meeting and shall have attached
thereto the original reports of the Inspectors of Votes, and
affidavits by one or more persons having knowledge of the
facts showing a copy of the notice of the meeting, and
showing that said notice was mailed and published as
provided in Section 108 hereof. Such record shall be signed
and verified by the affidavit of the permanent Chairman and
the permanent Secretary of the meeting, and one duplicate
thereof shall be delivered to the Company and the other to
the Corporate Trustee for preservation by the Corporate
Trustee. Any record so signed and verified shall be proof
of the matters therein stated, and if such record shall also
be signed and verified by the affidavit of a duly authorized
representative of the Corporate Trustee, such meeting shall
be deemed conclusively to have been duly convened and held
and such record shall be conclusive, and any resolution or
proceeding stated in such record to have been adopted or
taken, shall be deemed conclusively to have been duly
adopted or taken by such meeting. A true copy of any
resolution adopted by such meeting shall be mailed by the
Corporate Trustee (a) to each registered holder of bonds of
the series directly affected by such resolution then
Outstanding addressed to him at his address appearing on the
registry books and (b) to all other holders of bonds then
Outstanding hereunder, the names and addresses of whom are
then preserved by the Corporate Trustee pursuant to the
provisions of Section 43 hereof, and proof of such mailing
by the affidavit of some person having knowledge of the fact
shall be filed with the Corporate Trustee, but failure to
mail copies of such resolution as aforesaid shall not affect
the validity thereof. No such resolution shall be binding
until and unless such resolution is approved by Resolution
of the Board of Directors of the Company, of which such
Resolution of approval, if any, it shall be the duty of the
Company to file a copy certified by the Secretary or an
Assistant Secretary of the Company with the Corporate
Trustee, but if such Resolution of the Board of Directors of
the Company is adopted and a certified copy thereof is filed
with the Corporate Trustee, the resolution so adopted by
such meeting shall (to the extent permitted by law) be
deemed conclusively to be binding upon the Company, the
Trustees and the holders of all bonds and coupons issued
hereunder, at the expiration of sixty (60) days after such
filing, except in the event of a final decree of a court of
competent jurisdiction setting aside such resolution, or
annulling the action taken thereby in a legal action or
equitable proceeding for such purposes commenced within such
sixty (60) day period; provided, however, that no such
resolution of the bondholders, or of the Company, shall in
any manner be so construed as to change or modify any of the
rights, immunities, or obligations of the Trustees or either
of them without their, its or his written assent thereto.
SECTION 115. Bonds authenticated and delivered after
the date of any bondholders' meeting may bear a notation in
form approved by the Corporate Trustee as to the action
taken at meetings of bondholders theretofore held, and upon
demand of the holder of any bond Outstanding at the date of
any such meeting and presentation of his bond for the
purpose at the principal office of the Corporate Trustee,
the Company shall cause suitable notation to be made on such
bond by endorsement or otherwise as to any action taken at
any meeting of bondholders theretofore held. If the Company
or the Corporate Trustee shall so determine, new bonds so
modified as in the opinion of the Corporate Trustee and the
Board of Directors of the Company to conform to such
bondholders' resolution shall be prepared, authenticated and
delivered, and upon demand of the holder of any bond then
Outstanding and affected thereby shall be exchanged without
cost to such bondholders for bonds then Outstanding
hereunder upon surrender of such bonds with all unmatured
coupons, if any, appertaining thereto. The Company or the
Corporate Trustee may require bonds Outstanding to be
presented for notation or exchange as aforesaid if either
shall see fit to do so. Instruments supplemental to this
Indenture embodying any modification or alteration of this
Indenture or of any indenture supplemental hereto made at
any bondholders' meeting and approved by Resolution of the
Board of Directors of the Company, as aforesaid, may be
executed by the Trustees and the Company and upon demand of
the Corporate Trustee, or if so specified in any resolution
adopted by any such bondholders' meeting, shall be executed
by the Company and the Trustees.
Any instrument supplemental to this Indenture executed
pursuant to the provisions of this Section or otherwise,
shall comply with all applicable provisions of the Trust
Indenture Act of 1939 as in force on the date of the
execution of such supplemental indenture.
SECTION 116. (A) Anything in this Article XIX
contained to the contrary notwithstanding, the Corporate
Trustee shall receive the written consent (in any number of
instruments of similar tenor executed by bondholders or by
their attorneys appointed in writing or in the supplemental
indenture or supplemental indentures creating such series of
bonds) of the holders of a majority in principal amount of
the bonds Outstanding hereunder, considered as one class
(or, if any action proposed to be taken shall directly
affect the holders of bonds of one or more, but less than
all, series then Outstanding hereunder, then the consent
only of the holders of a majority in aggregate principal
amount of bonds of the series so directly affected then
Outstanding hereunder, considered as one class), at the time
the last such needed consent is delivered to the Corporate
Trustee, in lieu of the holding of a meeting pursuant to
this Article XIX and in lieu of all action at such a meeting
and with the same force and effect as a resolution duly
adopted in accordance with the provisions of Section 113
hereof.
(B) Instruments of consent shall be witnessed or in
the alternative may (a) have the signature guaranteed by a
bank or trust company or a registered dealer in securities
participating in a recognized signature guarantee medallion
program, (b) be acknowledged before a Notary Public or other
officer authorized to take acknowledgments, or (c) have
their genuineness otherwise established to the satisfaction
of the Corporate Trustee.
The amount of bonds payable to bearer, and the series
and serial numbers thereof, held by a person executing an
instrument of consent (or whose attorney has executed an
instrument of consent in his behalf), and the date of his
holding the same, may be proved by exhibiting the bonds to
and obtaining a certificate executed by (i) any bank or
trust or insurance company organized under the laws of the
United States of America or of any State thereof, or (ii)
any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization or similar
fund or funds, or (iii) the United States of America, any
Territory thereof, the District of Columbia, any State of
the United States, any municipality in any State of the
United States or any public instrumentality of the United
States, or of any State or of any Territory, or (iv) any
other person or corporation satisfactory to the Corporate
Trustee. A bondholder in any of the foregoing categories
may sign a certificate in his own behalf.
Each such certificate shall be dated and shall state in
effect that as of the date thereof a coupon bond or bonds
bearing a specified serial number or numbers was exhibited
to the signer of such certificate. The holding by the
person named in any such certificate of any bonds specified
therein shall be presumed to continue unless (1) any
certificate bearing a later date issued in respect of the
same bond shall be produced, (2) the bond specified in such
certificate (or any bond or bonds issued in exchange or
substitution for such bond) shall be produced, or (3) the
bond specified in such certificate shall be registered as to
principal in the name of another holder or shall have been
surrendered in exchange or a fully registered bond
registered in the name of another holder. The Corporate
Trustee may nevertheless in its discretion require further
proof in cases where it deems further proof desirable. The
ownership of registered bonds shall be proved by the
registry books.
(C) Until such time as the Corporate Trustee shall
receive the written consent of the necessary per centum in
principal amount of the bonds required by the provisions of
subsection (A) above for action contemplated by such
consent, any holder of a bond, the serial number of which is
shown by the evidence to be included in the bonds the
holders of which have consented to such action, may, by
filing written notice with the Corporate Trustee at its
principal office and upon proof of holding as provided in
subsection (B) above, revoke such consent so far as it con
cerns such bond unless such consent states that it shall be
irrevocable or is set forth in the supplemental indenture
creating such series of bonds. Except as aforesaid, any
such action taken by the holder of any bond shall be con
clusive and binding upon such holder and upon all future
holders of such bond (and any bond issued in lieu thereof or
exchanged therefor), irrespective of whether or not any
notation of such consent is made upon such bond, and in any
event any action taken by the holders of the percentage in
aggregate principal amount of the bonds specified in
subsection (A) above in connection with such action shall be
conclusively binding upon the Company, the Corporate Trustee
and the holders of all the bonds."
SECTION 6. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Section 5 of the Mortgage to replace the first two
paragraphs thereof with three paragraphs reading substantially as
follows:
"The term "Funded Property Certificate" shall mean an
Independent Engineer's Certificate delivered to the
Corporate Trustee, within ninety days after the date
thereof,
(A) stating the aggregate principal amount of
bonds then Outstanding under this Indenture;
(B) stating the aggregate principal amount of
bonds which the Company is then entitled to have
authenticated and delivered by compliance with the
provisions of Section 29 hereof;
(C) stating an amount equal to 10/8 of the
sum of the amounts stated in clauses (A) and (B) above;
(D) describing all or any portion of the
Mortgaged and Pledged Property which, in the opinion of
the signers, has an aggregate Fair Value not less than
the amount stated in clause (C) above.
The term "Funded Property" shall mean:
(1) all Mortgaged and Pledged Property
described in the most recent Funded Property
Certificate delivered to the Corporate Trustee;
(2) all Property Additions to the extent that
the same shall have been made the basis of the
authentication and delivery of bonds under this
Indenture after the date of the most recent Funded
Property Certificate delivered to the Corporate
Trustee;
(3) all Property Additions to the extent that
the same shall have been made the basis of the release
of property from the Lien of this Indenture after the
date of the most recent Funded Property Certificate
delivered to the Corporate Trustee, subject, however,
to the provisions of Section 59 hereof;
(4) all Property Additions to the extent that
the same shall have been substituted (otherwise than
under the release or cash withdrawal provisions hereof)
for Funded Property retired after the date of the most
recent Funded Property Certificate delivered to the
Corporate Trustee; and
(5) all Property Additions to the extent that
the same shall have been made the basis of the
withdrawal of any Funded Cash as hereinafter defined
after the date of the most recent Funded Property
Certificate delivered to the Corporate Trustee, except
to the extent that any such Property Additions shall no
longer be deemed to be Funded Property in accordance
with the provisions of other Sections of this
Indenture.
In the event that in any certificate filed with the
Corporate Trustee in connection with any of the transactions
referred to in clauses (2), (3) and (5) of this Section only
a part of the Cost or fair value of the Property Additions
described in such certificate shall be required for the
purposes of such certificate, then such Property Additions
shall be deemed to be Funded Property only to the extent so
required for the purpose of such certificate."
The foregoing amendment shall not become effective until the
Company shall have delivered a Funded Property Certificate to the
Corporate Trustee.
SECTION 7. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Section 25 of the Mortgage to change the words
"sixty per centum (60%)" to "eighty per centum (80%)."
SECTION 8. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend subparagraph (A) of the first paragraph of Section 7
of the Mortgage to substitute the words "eighteen (18)" for the
words "fifteen (15)" in the second line.
To amend clause (1) of clause (A) of Section 7 of the
Mortgage to add after the word "revenues" substantially the
following text:
"(which may include revenues subject when collected or
accrued to possible refund at a future date)"
To amend clause (8) of subparagraph (A) of the first
paragraph of Section 7 of the Mortgage to add after the word
"(net)" substantially the following text:
", which may include any portion of the allowance for funds
used during construction or any portion of the allowance for
funds used for conservation expenditures (or any analogous
amount), in either case, which is not included in "other
income" (or any analogous item) in the Company's books of
account"
To amend the second paragraph in Section 7 of the Mortgage
(which begins with the words "In calculating such Adjusted Net
Earnings ..." to add at the end of the first sentence thereof
substantially the following text:
"and provided further that no deduction from revenues or
income shall be made for expenses or provisions for any non-
recurring charge to income of whatever kind or nature
(including without limitation the recognition of expense due
to the non-recoverability of investment), whether or not
recorded as an extraordinary item in the Company's books of
account, and no deduction from revenues or income shall be
made for provisions for any refund of revenues previously
collected or accrued subject to possible refund."
To add a new paragraph at the end of Section 7 of the
Mortgage to read substantially as follows:
"In calculating such Annual Interest Requirements (A)
if any bonds issued hereunder, Qualified Lien Bonds and/or
other indebtedness bear interest at a variable rate or
rates, the Annual Interest Requirements thereon shall be
determined by reference to the rate or rates in effect on
the date next preceding the date of the initial
authentication and delivery of the bonds then applied for in
the application in connection with which the Net Earning
Certificate is made, (B) if such bonds then applied for
and/or any bonds applied for in any other pending
application are to bear interest at a variable rate or
rates, the Annual Interest Requirements thereon shall be
determined by reference to the rate or rates to be in effect
at the time of the initial authentication and delivery
thereof, and (C) the Annual Interest Requirements on bonds
issued or to be issued hereunder, Qualified Lien Bonds and
any other indebtedness shall be determined by reference to
the rate or rates at which such obligations are stated by
their terms to bear simple interest, without regard to the
effective interest cost to the Company of such obligations
and without regard to the stated interest rate or rates
upon, or the effective cost to the Company of, other
obligations for which such obligations are or are to be
pledged or otherwise delivered as security."
SECTION 9. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Section 86 of the Mortgage to add a new paragraph at
the end reading substantially as follows:
"In case the Company, as permitted by Section 85
hereof, shall convey or transfer, subject to the Lien of
this Indenture, all or substantially all of the Mortgaged
and Pledged Property as an entirety to a successor
corporation, the indenture described above in this Section
may also provide for the release and discharge of the
Company from all obligations under this Indenture or any
bonds issued hereunder which are assumed by such successor
corporation."
SECTION 10. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Section 120 of the Mortgage to read substantially as
follows:
"SECTION 120. Anything in this Indenture to the
contrary notwithstanding, without the consent of any holders
of bonds, the Company and the Trustees, at any time and from
time to time, may enter into one or more indentures supple
mental hereto, in form satisfactory to the Trustees, for any
of the following purposes:
(a) to evidence the succession of another
corporation to the Company and the assumption by any
such successor of the covenants of the Company herein
and in the bonds, all as provided in Article XVI
hereof, or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
holders of the bonds or for the benefit of the holders
of, or to remain in effect only so long as there shall
be Outstanding, bonds of one or more specified series,
and to make the occurrence of a default in the
performance of any of such additional covenants an
additional "Default" under Section 65 permitting the
enforcement of all or any of the several remedies
provided in this Indenture, as herein set forth; pro
vided, however, that in respect of any such additional
covenant, such supplemental indenture may provide for a
particular period of grace after default (which period
may be shorter or longer than those allowed in the case
of other defaults) or may provide for an immediate
enforcement upon such default, or may (subject to the
provisions of applicable law) limit the remedies
available to the Trustees upon such default; or to
provide that the occurrence of one or more specified
events shall constitute additional "Defaults" under
Section 65 as if set forth therein, or to surrender any
right or power herein conferred upon the Company, which
additional "Default" or surrender may be limited so as
to remain in effect only so long as bonds of one or
more specified series shall remain Outstanding; or
(c) to correct or amplify the description of
any property at any time subject to the Lien of this
Indenture, or better to assure, convey and confirm unto
the Trustees any property subject or required to be
subjected to the Lien of this Indenture, or to subject
to the Lien of this Indenture additional property; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that no such change,
elimination or addition shall adversely affect the
interests of the holders of bonds of any series in any
material respect; or
(e) to establish the form or terms of bonds
of any series as contemplated by Article II; or
(f) to provide for the procedures required
to permit the Company to utilize, at its option, a non-
certificated system of registration for all or any
series of bonds; or
(g) to change any place or places (within
the United States of America) where (1) the principal
of and premium, if any, and interest, if any, on all or
any series of bonds shall be payable, (2) all or any
series of bonds may be surrendered for registration of
transfer, (3) all or any series of bonds may be
surrendered for exchange and (4) notices and demands to
or upon the Company in respect of all or any series of
bonds and this Indenture may be served; or
(h) to cure any ambiguity, to correct or
supplement any provision herein which may be defective
or inconsistent with any other provision herein; or to
make any other changes to the provisions hereof or to
add other provisions with respect to matters or ques
tions arising under this Indenture, provided that such
other changes or additions shall not adversely affect
the interests of the holders of bonds of any series in
any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act of 1939, as in effect at any time
and from time to time,
(x) shall require one or more
changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes
or incorporate such provisions by reference or
otherwise, this Indenture shall be deemed to have
been amended so as to conform to the Trust
Indenture Act of 1939 as then in effect, and the
Company and the Trustees may, without the consent
of any holders of bonds, enter into an indenture
supplemental hereto to evidence such amendment
hereof; or
(y) shall permit one or more
changes to, or the elimination of, any provisions
hereof which shall theretofore have been required
by the Trust Indenture Act of 1939 to be contained
herein or are contained herein to reflect any pro
visions of the Trust Indenture Act of 1939, this
Indenture shall be deemed to have been amended to
effect such changes or elimination, and the
Company and the Trustees may, without the consent
of any holders of bonds, enter into an indenture
supplemental hereto to evidence such amendment
hereof."
SECTION 11. The Company reserves the right, without any
consent, vote or other action by holders of bonds of the Sixtieth
Series, or of any other subsequent series, to amend the Mortgage,
as heretofore amended and supplemented, as follows:
To amend Section 59 of the Mortgage to delete the clause at
the end of subdivision (4) beginning with the words "provided,
however, that (i) no obligations ...." and ending with the words
"... at such time Outstanding under this Indenture" and
substituting therefor substantially the following:
"provided, however, that no obligations secured by purchase
money mortgage upon any property being released from the
Lien hereof shall be used as a credit in any application for
such release unless the Company shall deliver to the Trustee
a certificate or opinion of an engineer, appraiser or other
expert as to the fair value of such purchase money mortgage
obligations to the Company, and provided further, that if
the fair value to the Company of such purchase money
mortgage obligations and of all other securities (other than
bonds authenticated and delivered hereunder) made the basis
of any authentication and delivery of bonds hereunder, the
withdrawal of any cash constituting part of the trust estate
hereunder, or the release of any property or securities from
the Lien hereof since the commencement of the then calendar
year, as set forth in the certificates or opinions required
by this clause, is ten per centum (10%) or more of the
aggregate principal amount of the bonds at the time
Outstanding under this Indenture, such certificate or
opinion shall be made by an independent engineer, appraiser,
or other expert; but such a certificate of an independent
engineer, appraiser, or other expert shall not be required
with respect to any purchase money mortgage obligations so
deposited, if the fair value thereof to the Company as set
forth in the certificate or opinion required by this clause
is less than twenty-five thousand Dollars ($25,000) or less
than one per centum (1%) of the aggregate principal amount
of bonds at the time Outstanding under this Indenture."
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 12. The Company hereby exercises the right,
reserved in Section 7 of the Nineteenth Supplemental Indenture to
the Mortgage, to make the amendments described in such section,
viz. to restate Sections 107 through 116 of Article XIX
("Meetings and Consents of Bondholders") of the Mortgage, as
supplemented, effective when all bonds of the First through
Eighteenth Series are no longer Outstanding.
SECTION 13. The holders of the bonds of the Sixtieth Series
shall be deemed to have consented and agreed that the Company
may, but shall not be obligated to, fix a record date for the
purpose of determining the holders of the bonds of the Sixtieth
Series entitled to consent to any amendment or supplement to the
Mortgage or the waiver of any provision thereof or any act to be
performed thereunder. If a record date is fixed, those persons
who were holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be
holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
SECTION 14. Subject to the amendments provided for in this
Fifty-third Supplemental Indenture, the terms defined in the
Mortgage and the First through Fifty-second Supplemental
Indentures shall, for all purposes of this Fifty-third
Supplemental Indenture, have the meanings specified in the
Mortgage and the First through
Fifty-second Supplemental Indentures.
SECTION 15. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform
the same upon the terms and conditions herein and in the Mortgage
and in the First through Fifty-second Supplemental Indentures set
forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifty-third Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general each and every term and condition
contained in Article XVII of the Mortgage, as heretofore amended,
shall apply to and form part of this Fifty-third Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fifty-third Supplemental
Indenture.
SECTION 16. Whenever in this Fifty-third Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVI and XVII of
the Mortgage, as heretofore amended, be deemed to include the
successors and assigns of such party, and all the covenants and
agreements in this Fifty-third Supplemental Indenture contained
by or on behalf of the Company, or by or on behalf of the
Trustees, or either of them, shall, subject as aforesaid, bind
and inure to the respective benefits of the respective successors
and assigns of such parties, whether so expressed or not.
SECTION 17. Nothing in this Fifty-third Supplemental
Indenture, expressed or implied, is intended, or shall be
construed, to confer upon, or give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-third
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises or agreements in this Fifty-third
Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and of the coupons
Outstanding under the Mortgage.
SECTION 18. This Fifty-third Supplemental Indenture shall be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 19. This Fifty-third Supplemental Indenture shall be
construed in accordance with and governed by the laws of the
State of New York.
<PAGE>
IN WITNESS WHEREOF, ARKANSAS POWER & LIGHT COMPANY has caused
its corporate name to be hereunto affixed, and this instrument to
be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its
Secretary or one of its Assistant Secretaries for and in its
behalf, and BANKERS TRUST COMPANY has caused its corporate name
to be hereunto affixed, and this instrument to be signed and
sealed by, one of its Vice Presidents or one of its Assistant
Vice Presidents, and its corporate seal to be attested by one of
its Assistant Secretaries or one of its Assistant Treasurers for
and in its behalf, and STANLEY BURG has hereunto set his hand and
affixed his seal, and THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by, one of its Vice Presidents
or one of its Trust Officers, and its corporate seal to be
attested by one of its Assistant Secretaries or one of its
Assistant Trust Officers for and in its behalf, as of the day and
year first above written.
ARKANSAS POWER & LIGHT COMPANY
By: ........................
Vice President
Attest:
..........................................
Assistant Secretary
Executed, sealed and delivered by
ARKANSAS POWER & LIGHT COMPANY
in the presence of:
..........................................
..........................................
<PAGE>
BANKERS TRUST COMPANY,
As Corporate Trustee
By:............................
Vice President
Attest:
...................................... Stanley Burg
Assistant Treasurer
......................................[L.S.]
Executed, sealed and delivered by
BANKERS TRUST COMPANY
and STANLEY BURG
in the presence of:
......................................
......................................
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
As Co-Trustee as to property,
real or personal, situated or
being in Missouri
By: .......................
Trust Officer
Attest:
..........................
Trust Officer
Executed, sealed and delivered by
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS in the presence of:
.............................................................
.............................................................
<PAGE>
STATE OF LOUISIANA )
) SS.:
PARISH OF ORLEANS )
On this 20th day of March, 1996, before me, Denise Redmann
Krouse, a Notary Public duly commissioned, qualified and acting
within and for said County and State, appeared in person the
within named WILLIAM J. REGAN, JR. and CHRISTOPHER T. SCREEN, to
me personally well known, who stated that they were Vice
President and Treasurer, and Assistant Secretary, respectively,
of ARKANSAS POWER & LIGHT COMPANY, a corporation, and were duly
authorized in their respective capacities to execute the
foregoing instrument for and in the name and behalf of said
corporation, and further stated and acknowledged that they had so
signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
On the 20th day of March, 1996, before me personally came
WILLIAM J. REGAN, JR., to me known, who, being by me duly sworn,
did depose and say that he resides at 104 English Turn, New
Orleans, Louisiana 70131; that he is Vice President and Treasurer
of ARKANSAS POWER & LIGHT COMPANY, one of the corporations
described in and which executed the above instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
On the 20th day of March, 1996, before me appeared WILLIAM J.
REGAN, JR., to me personally known, who, being by me duly sworn,
did say that he is Vice President and Treasurer of ARKANSAS POWER
& LIGHT COMPANY, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and he
acknowledged said instrument to be the free act and deed of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in said County and State the day
and year last above written.
/s/Denise Redmann Krouse
Denise Redmann Krouse
Notary Public
Parish of Orleans, State of Louisiana
My Commission is Issue for Life
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 22nd day of March, 1996, before me, Carol Allen, a
Notary Public duly commissioned, qualified and acting within and
for said County and State, appeared ROBERT CAPORALE and SHAFIQ
JADAVJI, to me personally well known, who stated that they were a
Vice President and Assistant Treasurer, respectively, of BANKERS
TRUST COMPANY, a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and
in the name and behalf of said corporation; and further stated
and acknowledged that they had so signed, executed and delivered
said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On the 22nd day of March, 1996, before me personally came
ROBERT CAPORALE, to me known, who, being by me duly sworn, did
depose and say that he resides at 35 Meadowbrook Lane, Mount
Kisco, New York 10549; that he is a Vice President of BANKERS
TRUST COMPANY, one of the corporations described in and which
executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
On the 22nd day of March, 1996, before me appeared ROBERT
CAPORALE, to me personally known, who, being by me duly sworn,
did say that he is a Vice President of BANKERS TRUST COMPANY, and
that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of
its Board of Directors, and she acknowledged said instrument to
be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in said County and State the day
and year last above written.
/s/Carol Allen
Carol Allen
Notary Public, State of New York
No. 24-4920187
Qualified in Kings County
Commission Expires February 16, 1998
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 22nd day of March, 1996, before me, Carol Allen, the
undersigned, personally appeared STANLEY BURG, known to me to be
the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained.
On the 22nd day of March, 1996, before me personally appeared
STANLEY BURG, to me known to be the person described in and who
executed the foregoing instrument, and acknowledged that he
executed the same as his free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/Carol Allen
Carol Allen
Notary Public, State of New York
No. 24-4920187
Qualified in Kings County
Commission Expires February 16, 1998
<PAGE>
STATE OF MISSOURI )
) SS.:
COUNTY OF ST. LOUIS )
On this 20th day of March, 1996, before me, Joy Marie
Lincoln, a Notary Public duly commissioned, qualified and acting
within and for said County and State, appeared ROBERT A. CLASQUIN
and P.C. QUIBELLE, to me personally well known, who stated that
they were Trust Officers of THE BOATMEN'S NATIONAL BANK OF ST.
LOUIS, a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and
in the name and behalf of said corporation, and further stated
and acknowledged that they had so signed, executed and delivered
said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On the 20th day of March, 1996, before me personally came
ROBERT A. CLASQUIN, to me known, who, being by me duly sworn, did
depose and say that he resides at Highland, Illinois; that he is
a a Trust Officer of THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
one of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation, and that he signed his name by like order.
On the 20th day of March, 1996, before me appeared ROBERT A.
CLASQUIN, to me personally known, who, being by me duly sworn,
did say that he is a Trust Officer of THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and he
acknowledged said instrument to be the free act and deed of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in said County and State the day
and year last above written.
/s/Joy Marie Lincoln
Joy Marie Lincoln
Notary Public, State of Missouri
St. Louis County
My Commission Expires October 16, 1998
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of September 1, 1977,
is by and between Gulf States Utilities Company, a corporation
duly organized and existing under the laws of the State of Texas
(herein called the "Guarantor"), and the Hibernia National Bank
in New Orleans, located in New Orleans, Louisiana, a national
banking association, as trustee (herein, together with any
successor trustee at the time serving as such under the Indenture
of Trust and Pledge, as supplemented by the First Supplemental
Indenture of Trust and Pledge, dated as of the date hereof,
between the Industrial Development Board of the Parish of
Calcasieu, Inc. and said Hibernia National Bank in New Orleans,
as trustee, called the "Trustee").
W I T N E S S E T H:
WHEREAS, arrangements have been made for the issuance
and sale, pursuant to the aforesaid Indenture of Trust and Pledge
(herein, as supplemented by the First Supplemental Indenture of
Trust and Pledge, collectively called the "Indenture"), by the
Industrial Development Board of the Parish of Calcasieu, Inc.
(herein, together with any successor to its functions, called the
"Issuer"), of its Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series 1977, in the aggregate
principal amount of $23,000,000 herein called the "Series 1977
Bonds"); and
WHEREAS, $20,000,000 aggregate principal amount of
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) Series 1974, dated December 1, 1974 (the "Series 1974
Bonds") were issued by the Issuer for the purpose of defraying
the costs incurred in connection with certain air and water
pollution control facilities (herein, having the same meaning as
in the Indenture, called the "Project") at the Roy S. Nelson
Station of the Guarantor located at Lake Charles in the Parish of
Calcasieu, Louisiana; and
WHEREAS, the Issuer is authorized pursuant to the
Indenture to issue and sell additional revenue bonds of the
Issuer for the purpose of refunding the Series 1974 Bonds under
the Indenture (the Series 1977 Bonds and the Series 1974 Bonds,
and any additional bonds being herein called the "Bonds", such
term having the same meaning as in the Indenture); and
WHEREAS, the Guarantor desires that the Issuer issue
and sell the Series 1977 Bonds and apply the proceeds for the
purpose of retiring the Series 1974 Bonds and apply the proceeds
for the purpose of retiring the Series 1974 Bonds outstanding at
the earlier of their maturities or the first date on which they
may be redeemed and to pay interest on such Series 1974 Bonds to
their maturities or redemption dates, any redemption premiums and
expenses incidental to the issuance of such bonds; and
WHEREAS, in order to provide an inducement to the
Issuer to issue and sell the Series 1977 Bonds and an inducement
to the purchase of the Series 1977 Bonds and interest coupons
appertaining thereto by all who shall at any time become holders
thereof, the Guarantor is willing to enter into this Guaranty;
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the Guarantor does hereby
covenant and agree with the Trustee as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 1.1. Guarantor does hereby represent and
warrant that:
(a) it is a corporation duly incorporated and in
good standing under the laws of the State of Texas, is
duly qualified and admitted to do business in the State
of Louisiana, is not in violation of any provisions of
its Articles of Incorporation or its By-Laws, has not
received notice and has no reasonable grounds to
believe that is in violation of any of the laws of
Texas or Louisiana, has power to enter into this
Guaranty, has duly authorized the execution and
delivery of this Guaranty by proper corporate action
and neither this Guaranty nor the agreements herein
contained contravene or constitute a default under any
agreement, instrument or indenture or any provision of
its Articles of Incorporation or any other requirement
of law; and
(b) the assumption by Guarantor of its
obligations hereunder will result in a direct financial
benefit to it.
ARTICLE II
COVENANTS AND AGREEMENTS
SECTION 2.1. Guarantor hereby unconditionally
guarantees to Trustee for the benefit of the holders from time to
time of the Series 1977 Bonds and of the interest coupons
appertaining thereto (a) the full and prompt payment of the
principal of and premium, if any, on each of the Series 1977
Bonds when and as the same shall become due in accordance with
the terms and provisions of each such Series 1977 Bond and the
Indenture, whether at the stated maturity of any Series 1977
Bond, by acceleration, call for redemption or otherwise, and (b)
the full and prompt payment of any interest on each of the Series
1977 Bonds when and as the same shall become due in accordance
with the terms and provisions of each such Series 1977 Bond and
the Indenture. All payments by Guarantor shall be paid in lawful
money of the United States of America. Each and every default of
the principal of, premium, if any, or interest on any Bond shall
give rise to a separate cause of action hereunder, and separate
suits may be brought hereunder as each cause of action arises.
SECTION 2.2 The obligations of the Guarantor under
this Guaranty shall be absolute and unconditional and shall
remain in full force and effect until the entire principal of,
premium, if any, and interest on the Series 1977 Bonds shall have
been paid or provided for, and such guaranty obligations shall
not be affected, modified or impaired upon the happening from
time to time of any event, including without limitation of any of
the following, whether or not with notice to, or the consent of,
Guarantor:
(a) the compromise, settlement, release or
termination of any or all of the obligations, covenants
or agreements of Issuer under the Indenture;
(b) the failure to give notice to Guarantor of
the occurrence of an event of default under the terms
and provisions of this Guaranty or the Indenture;
(c) the assignment or mortgaging of all or any
part of the leasehold or easement interest of Issuer in
the Project or any failure of title with respect to
Issuer's interests in the Project;
(d) the waiver by Trustee or Issuer of the
payments, performance or observance by Issuer or
Guarantor of any of the obligations, covenants or
agreements of any of them contained in the Indenture or
this Guaranty;
(e) the extension of the time for payment of any
principal of, premium, if any, or interest on any
Series 1977 Bond or under this Guaranty or of the time
for performance of any other obligations, covenants or
agreements under or arising out of the Indenture or
this Guaranty or the extension or the renewal of either
thereof;
(f) the modification or amendment (whether
material or otherwise) of any obligation, covenant or
agreement set forth in the Indenture, provided that the
obligations of the Guarantor are not thereby changed,
increased, or expanded without its prior written
consent as provided for in the Indenture;
(g) the taking or the omission of any of the
actions referred to in the Indenture and any actions
under this Guaranty;
(h) any failure, omission, delay or lack on the
part of Issuer or Trustee to enforce, assert or
exercise any right, power or remedy conferred on Issuer
or Trustee in this Guaranty or the Indenture, or any
other act or acts on the part of Issuer, Trustee or any
of the holders from time to time of the Series 1977
Bonds or of the interest coupons appertaining thereto;
(i) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors
or readjustment of, or other similar proceedings
affecting Issuer or Guarantor or any of the assets of
any of them, or any allegation or contest of the
validity of this Guaranty in any such proceeding;
(j) to the extent permitted by law, the release
or discharge of Guarantor from the performance or
observance of any obligation, covenant or agreement
contained in this Guaranty by operation of law; or
(k) the default or failure of Guarantor to
perform fully any of its obligations set forth in this
Guaranty.
SECTION 2.3 No set-off, counterclaim, reduction or
diminution of an obligation, or any defense of any kind or nature
which Guarantor has or may come to have against Issuer or Trustee
shall be available hereunder to Guarantor against Trustee;
provided, that nothing contained in this Guaranty shall prohibit
or limit Guarantor from asserting any separate or related claim
against either Issuer or Trustee in a separate proceeding or from
enforcing any obligations of Issuer or Trustee, and, where
appropriate, recovering damages from Trustee in a separate
proceeding, which separate proceeding shall in no way delay the
prompt performance by Guarantor of its respective obligations
hereunder, and that neither the creation of this Guaranty nor any
action or payments Guarantor may make pursuant to this Guaranty
shall operate as a waiver, in whole or in part, of any
obligations or duty of the Issuer or Trustee to Guarantor.
SECTION 2.4. In the event of a default in the payment
of principal of or premium, if any, on any Series 1977 Bond when
and as the same shall become due, whether at the stated maturity
thereof, by acceleration, call for redemption or otherwise, or in
the event of a default in the payment of any interest on any
Series 1977 Bond when and as the same shall become due, Trustee
may, and if requested so to do by the holders of not less than
25% in aggregate principal amount of the Series 1977 Bonds then
outstanding, and upon indemnification as hereinafter provided,
shall be obligated to proceed hereunder and Trustee, in its sole
discretion, shall have the right to proceed first and directly
against Guarantor under this Guaranty without proceeding against
or exhausting any other remedies which it may have and without
resorting to any other security held by Issuer or Trustee.
Before taking any action hereunder, the Trustee may
require that a satisfactory indemnity bond be furnished for the
reimbursement of all expenses and to protect against all
liability, except liability which is adjudicated to have resulted
from its negligence or willful default by reason of any action so
taken.
SECTION 2.5 Guarantor hereby expressly waives notice
from Trustee or the holders from time to time of any of the
Series 1977 Bonds or of the interest coupons appertaining thereto
of their acceptance and reliance on this Guaranty. Guarantor
agrees to pay all costs, expenses and fees, including all
reasonable attorneys' fees, which may be incurred by Trustee in
enforcing or attempting to enforce this Guaranty following any
default on its part hereunder, whether the same shall be enforced
by suit or otherwise.
SECTION 2.6. Guarantor agrees that except in the event
of a transfer of all or substantially all of its assets, a merger
or a consolidation expressly permitted by this Section 2.6, it
will maintain its corporate existence, will not dispose of all or
substantially all of its assets, or will not consolidate with or
merge into another corporation, unless the transferee of such
assets or the resulting or surviving corporation shall be
incorporated and existing under the laws of one of the States of
the Untied States of America, shall be qualified to do business
in the State of Louisiana or Texas (provided that if it is not
qualified to do business in Louisiana it shall take all necessary
actions to designate an agent for service of process in
Louisiana) and shall assume in writing all of the obligations of
Guarantor herein.
SECTION 2.7. This Guaranty is entered into by
Guarantor for the benefits of Trustee and the holders from time
to time of the Series 1977 Bonds and any successor Trustee or
trustees under the Indenture, all of whom shall be entitled to
enforce performance and observance of this Guaranty to the same
extent as if they were parties signatory hereto subject to and in
accordance with the terms of the Indenture, including but not
limited to the limitations on the right of the Bondholders to
institute direct action for enforcement hereof contained in
Section 9.09 of the Indenture.
SECTION 2.8 This Guaranty shall terminate with respect
to each Series 1977 Bond and Guarantor shall have no further
liability hereunder with respect to such Series 1977 Bonds from
and after the time the liability of Issuer thereon is terminated
and discharged under Section 5.09 of the Indenture or such Series
1977 Bond is deemed to have been paid under the provisions of
Article VIII of the Indenture.
ARTICLE III
NOTICE AND SERVICE OF PROCESS,
PLEADINGS AND OTHER PAPERS
SECTION 3.1. Guarantor covenants that it is and,
except in the event of a transfer of all or substantially all of
its assets, a merger or a consolidation expressly permitted by
Section 2.6 hereof, will remain qualified to do business and be
subject to service of process in the State of Louisiana so long
as any of the Series 1977 Bonds are outstanding. If for any
reason Guarantor shall not remain so qualified, Guarantor hereby
designates and appoints, with power of revocation, George F.
Cannon and William E. Richard, as its agents for service, upon
whom may be served all process, pleadings, notices or other
papers which may be served upon Guarantor as a result of any of
its obligations under this Guaranty, which agents may be changed
from time to time by Guarantor by advance written notice to
Trustee designating and appointing a successor agent or agents.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. The obligations of Guarantor hereunder
shall arise absolutely and unconditionally when the Series 1977
Bonds shall have been issued, sold and delivered by Issuer and
the proceeds thereof paid to the Trustee.
SECTION 4.2 No remedy herein conferred upon or
reserved to Trustee is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other
remedy given under this Guaranty or now or hereafter existing at
law or in equity. No delay or omission to exercise any right or
power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle Trustee to exercise any
remedy reserved to it in this Guaranty, it shall not be necessary
to give any notice other than such notice as may be herein
expressly required. In the event any provision contained in this
Guaranty shall be breached by Guarantor and thereafter duly
waived by Trustee, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other
breach hereunder. No waiver, amendment, release or modification
of this Guaranty shall be established by conduct, custom or
course of dealing, but solely by an instrument in writing duly
executed by Trustee.
Trustee shall not consent to any amendment or
modification of this Guaranty without publication of notice and
the written approval or consent of the holders of not less than
60% in aggregate principal amount of the Series 1977 Bonds at the
time outstanding given as herein provided. If at any time,
Guarantor shall request the consent of the Trustee to any such
proposed amendment, change or modification of this Guaranty,
Trustee shall, upon being satisfactorily indemnified with respect
to expenses, cause notice of such proposed amendment, change or
modification to be published in the same manner as provided in
Section 11.02 of the Indenture with respect to supplemental
indentures. Such notice shall briefly set forth the nature of
such proposed amendment, change or modification and shall state
that copies of the instrument embodying the same are on file at
the principal office of Trustee for inspection by all holders of
the Series 1977 Bonds. Nothing contained herein shall permit, or
be construed as permitting any amendment, change or modification
of this Guaranty which would (a) reduce the amount payable by the
Guarantor hereunder, (b) change the time for payment of the
amounts payable by the Guarantor hereunder, or (c) change the
unconditional nature of the Guaranty herein contained.
SECTION 4.3 The agreements contained herein on the
part of Guarantor shall inure to and be binding upon its
respective successors and assigns, including without limitation,
any successor or assign in any transaction expressly permitted by
Section 2.6 hereof.
SECTION 4.4 This Guaranty constitutes the entire
agreement, and supersedes all prior agreements and
understandings, both written and oral, between Guarantor and
Trustee with respect to the subject matter hereof; provided,
however, that this Guaranty shall not repeal or supersede the
Guaranty Agreement dated December 1, 1974, relating to the Series
1974 Bonds (nor operate to continue such Guaranty Agreement after
the termination thereof), and may be executed simultaneously in
several counterparts, each of which shall be deemed an original,
and all of which together shall constitute one and the same
instrument.
SECTION 4.5 The invalidity or unenforceability of any
one or more phrases, sentences, clauses or Sections in this
Guaranty shall not affect the validity or enforceability of the
remaining portions of this Guaranty, or any part thereof.
SECTION 4.6 This Guaranty shall be governed by and
construed in accordance with the laws of the State of Louisiana.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty
to be executed in its name and behalf and its corporate seal to
be affixed hereto and attested by its duly authorized officers as
of the date first above written.
GULF STATES UTILITIES COMPANY
(Corporate Seal)
By: /s/ R. W. Jackson
Title: Vice President
ATTEST:
By: /s/ R. E. Eyler
Title: Assistant Secretary
WITNESSES:
/s/ J.A. Stultz
/s/ Alyce S. Schneider
ACCEPTED THIS 31st day of
August, 1977,
by Hibernia National Bank in
New Orleans, Trustee.
By: /s/ James A. Ouale
Title: Corporate Trust Officer
WITNESSES:
/s/ David R. Buttrey, Jr. Attest:
By: /s/ Gerard J. Krieger
/s/ Phillip J. David Title: Assistant Trust Officer
STATE OF TEXAS
COUNTY OF JEFFERSON
I, Alice D. Simon, a Notary Public in and for said
County and said State, hereby certify that R.W. Jackson and R.E.
Eyler, whose names as Vice President and Assistant Secretary of
Gulf States Utilities Company are signed to the foregoing
instrument and who are known to me, acknowledged before me on
this day that, being informed of the contents of the within
mentioned instrument, they, as such officers and with full
authority, executed the same voluntarily for and as the act of
said Company.
Given under my hand and official seal of office this
25th day of August, 1977.
(Notarial Seal)
/s/ Alice D. Simon
Notary Public
STATE OF LOUISIANA
PARISH OF ORLEANS
I, Edward J. Gay III, a Notary Public in and for said
Parish and State, hereby certify that James A. Ouale and Gerard
J. Krieger, whose names as Corporate Trust Officer and Assistant
Trust Officer of the Hibernia National Bank in New Orleans are
signed to the foregoing instrument and who are known to me,
acknowledged before me on this day that, being informed of the
contents of the within instrument, they, as such officers and
with full authority, executed the same voluntarily for and as the
act of said Bank.
Given under my hand and official seal of office this
31st day of August, 1977.
(Notarial Seal)
/s/ Edward J. Gay III
Notary Public
EXHIBIT C-8(h)
AGREEMENT
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT, dated as of
September 8, 1993 (this "Agreement") among GULF STATES UTILITIES
COMPANY, a Texas corporation (the "Company"), CANADIAN IMPERIAL
BANK OF COMMERCE, NEW YORK AGENCY ("CIBC") and WESTPAC BANKING
CORPORATION, CHICAGO BRANCH ("Westpac").
W I T N E S S E T H:
WHEREAS, the Company and Westpac are parties to that certain
Letter of Credit and Reimbursement Agreement dated December 27,
1985, as amended as of October 20, 1992 (the "Reimbursement
Agreement") which provides for, among other things, the issuance
by Westpac of a letter of credit in favor of The Bank of New
York, as Trustee (the "Trustee"), in connection with the Parish
of West Feliciana, State of Louisiana Variable Rate Demand
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) Series 1985-D in the aggregate principal amount of
$28,400,000 (the "Bonds");
WHEREAS, subject to the terms and conditions hereof, Westpac
wishes to assign and transfer to CIBC, and CIBC wishes to accept
and assume, in each case as hereinafter provided, the rights and
obligations of Westpac under the Reimbursement Agreement;
WHEREAS, subject to the terms and conditions hereof, the
Company and CIBC wish to amend the terms of the Reimbursement
Agreement in accordance with the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements herein contained, the parties hereto agree as
follows:
SECTION I
DEFINITIONS
SECTION I.1 Terms Defined in Reimbursement Agreement. As
used herein, unless otherwise defined herein, capitalized terms
defined in the Reimbursement Agreement shall have the respective
meaning set forth therein.
SECTION I.2 Other Defined Terms. As used herein:
(a) Terms defined in the preamble and the recitals
hereto have the meanings set forth therein; and
(b) The following terms have the following meanings:
"Effective Date" shall be the day on which all the
conditions precedent listed in Section V shall be satisfied.
"New Letter of Credit" has meaning set forth in Section 2.2.
"Original Letter of Credit" means Irrevocable Letter of
Credit No. CH468680 dated December 27, 1985, as amended, and
issued by Westpac to the Trustee pursuant to the Reimbursement
Agreement.
SECTION II
ASSIGNMENT AND ASSUMPTION
SECTION II.1 Assignment and Assumption. On the Effective
Date, subject to the terms and conditions of this Agreement,
including, without limitation, Section V,
(a) Except as provided in Section 2.4, Westpac hereby
sells, assigns, conveys and transfers to CIBC, without recourse,
warranty or (except as expressly provided in Section 4.3)
representation, all of its right, title and interest in, to and
under the Reimbursement Agreement and transfers to CIBC all of
Westpac's obligations under the Reimbursement Agreement;
(b) CIBC hereby purchases and accepts Westpac's rights
under the Reimbursement Agreement and accepts and assumes its
obligations thereunder and agrees to be bound by and perform the
terms of the Reimbursement Agreement, as amended, substituted or
otherwise modified pursuant to this Agreement, as if it were the
Bank originally party thereto.
SECTION II.2 Delivery of Letter of Credit. On the
Effective Date, subject to the applicable conditions precedent
set forth in Section V,
(a) CIBC will execute and deliver to the Trustee a
replacement Letter of Credit, dated the Effective Date, in the
stated maximum amount equal to $28,978,894 substantially in the
form of Annex I (the "New Letter of Credit"); and
(b) simultaneously therewith, the Trustee will
surrender for cancellation to Westpac the Original Letter of
Credit.
SECTION II.3 Consent to Assignment and Assumption; Release
of Westpac. Subject to the terms and conditions hereof,
including, without limitation, Section 2.2 and Section V, the
Company hereby
(a) consents to and approves the transactions
contemplated by Sections 2.1, 2.2 and 2.4; and
(b) agrees that, upon the Effective Date, Westpac
shall be released from all its obligations under the
Reimbursement Agreement other than those arising thereunder prior
to the Effective Date; and
(c) agrees that upon the Effective Date, Westpac shall
be released from all its obligations under the Original Letter of
Credit and that the Company shall cause the Trustee to surrender
the Original Letter of Credit to Westpac on such date.
SECTION II.4 Reservation of Certain Rights.
Notwithstanding Section 2.1 and Section 2.3, (a) Westpac does not
sell, assign, convey or transfer to CIBC and reserves to itself
any right of indemnification which runs to Westpac pursuant to
the terms of the Reimbursement Agreement and (b) CIBC does not
accept or assume, and shall not be bound by or liable in respect
of, any claim, loss or liability of any person to the extent
arising from any failure by Westpac to perform any of its
obligations arising under the Reimbursement Agreement prior to
the Effective Date or the Original Letter of Credit prior to its
surrender by the Trustee pursuant to Section 2.3(c).
SECTION III
AMENDMENTS TO REIMBURSEMENT AGREEMENT
SECTION III.1 Amendments. Effective on and as of the
Effective Date, the Reimbursement Agreement is hereby amended as
follows:
(a) Section 1.01 of the Reimbursement Agreement is
amended as follows:
(i) A definition of "Bank" is added in the appropriate
alphabetical position reading as follows:
"Bank" means Canadian Imperial Bank of
Commerce acting through its New York Agency.
(ii) The definition of "Disclosure Documents" is
amended to read in its entirety as follows:
"Disclosure Documents" means the
following documents, each in the form distributed
to the Bank prior to September 8, 1993:
(a) The Company's Annual Report on
Form 10-K for the year ended December 31, 1992.
(b) The Company's Quarterly
Reports on Form 10-Q for the quarters ended March
31, 1993 and June 30, 1993.
(c) The Company's Current Reports
on Form 8-K dated March 22, 1993, April 27, 1993,
June 21, 1993, July 22, 1993 and August 23, 1993.
(d) The Company's definitive Proxy
Statement for its Annual Meeting of Shareholders
Held May 6, 1993.
(e) The Prospectus dated March 23,
1993 relating to the offering of $50,000,000 of
the Company's First Mortgage Bonds, 6.75% Series A
due 2003.
(f) The Prospectus Supplement
dated May 27, 1993 relating to the offering of
6,000,000 shares of the Company's $1.75 Dividend
Preference Stock.
(g) The Prospectus Supplement
dated July 28, 1993 relating to the offering of
$290,000,000 of the Company's First Mortgage
Bonds, Medium Term Note Series, consisting of
$170,000,000 6.41% Sub-series A due 2001 and
$120,000,000 6.77% Sub-series B due 2005.
(iii) The definitions of "Domestic Lending Office" and
"Euro-Dollar Lending Office" are amended to read in their
entirety as follows:
"Domestic Lending Office" means the
office of the Bank located at Two Paces West, 2727
Paces Ferry Road, Atlanta, Georgia 30339, or such
other branch (or affiliate) as the Bank may
hereafter designate as its Domestic Lending
Office.
"Euro-Dollar Lending Office" means the
office of the Bank located at Two Paces West, 2727
Paces Ferry Road, Atlanta, Georgia 30339, or such
other branch (or affiliate) as the Bank may
hereafter designate as its Euro-Dollar Lending
Office.
(iv) The definition of "Fee Agreement" is deleted.
(v) The definition of "Prime Rate" is amended to read
in its entirety as follows:
"Prime Rate" for any day shall mean the
United States "Prime Rate" of the Bank as
announced by the Bank from time to time (said rate
to change on the date of each change of such prime
rate). The Prime Rate is not necessarily intended
to be the lowest rate of interest charged by the
Bank in connection with extensions of credit.
(b) Section 2.02 of the Reimbursement Agreement is
deleted and the following is substituted in its place:
SECTION 2.02 [Intentionally deleted.]
(c) Section 2.03 of the Reimbursement Agreement is
amended to read in its entirety as follows:
SECTION 2.03 Commission. (a) The Company
hereby agrees to pay to the Bank a letter of credit
commission on the Commission Amount in effect from time
to time from the date of issuance of the Letter of
Credit to and including the Credit Termination Date,
payable quarterly in arrears on the first day of
October, 1993 and on the first day of each July,
October, January and April thereafter until the Credit
Termination Date, and on the Credit Termination Date,
at the rate of 0.65% per annum (computed for actual
days elapsed on the basis of a 360-day year).
(b) The Company hereby agrees to pay to the
Bank, upon each transfer of the Letter of Credit in
accordance with its terms, the Banks then customary
transfer fees.
(c) The Company hereby agrees to pay to the
Bank on the date of each draw under the Letter of
Credit, a drawing fee in the amount of $100.
(d) Section 2.05(d) of the Reimbursement Agreement is
amended by deleting the phrase "to the Continental Illinois
National Bank and Trust Company of Chicago, Illinois, for credit
to the account of the Bank, Account No. 6012795" and substituting
in its place the following "to the Domestic Lending Office of the
Bank".
(e) Section 4.01(e) and (o) of the Reimbursement
Agreement are amended by replacing the date "December 31, 1984"
with the date "December 31, 1992" wherever it occurs therein and
by deleting from Section 4.01(o) of the Reimbursement Agreement
the phrase "the parity obligation contained in Section 6.02 of
the Debenture Indenture".
(f) Section 4.01(i) of the Reimbursement Agreement is
amended by substituting "1992 annual report" for "1984 annual
report".
(g) Section 4.01(k) of the Reimbursement Agreement is
amended by replacing "and Gulf States Overseas Finance N.V." with
"GSG & T Inc., and Southern Gulf Railway Company".
(h) Section 7.02 of the Reimbursement Agreement is
amended by deleting the address for the Bank therein and
substituting the following therefor: "Two Paces West, 2727 Paces
Ferry Road, Atlanta, Georgia 30339, telephone no. (404) 319-4836,
facsimile no. (404) 319-4950, telex no. 54-2413 (Answerback:
CANBANK ATL), Attention: Claire C. Coyne, Credit Operations,
with a copy to: CIBC Inc., 200 West Madison Street, Suite 2300,
Chicago, Illinois 60606, telephone no. (312) 855-3123, facsimile
no. (312) 750-0927, Attention: Utilities Group".
(i) The Reimbursement Agreement is further amended by
deleting Exhibit A thereto in its entirety and substituting
therefor a new Exhibit A in the form of Annex I to this
Agreement.
SECTION IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1 Representations and Warranties of the
Company. The Company hereby represents and warrants that the
execution, delivery and performance by the Company of this
Agreement are within the Company's corporate powers, have been
duly authorized by all necessary corporate action and do not
contravene or conflict with any law, rule or regulation
applicable to the Company or require any action by or any filing
with any governmental or public body or authority or result in a
breach of or constitute a default under its charter or by-laws or
any agreement, indenture or instrument binding upon it including,
without limitation, the Related Documents; this Agreement and the
Reimbursement Agreement as amended hereby constitute the legal,
valid and binding obligation of the Company enforceable against
the Company in accordance with their respective terms except as
enforceability may be limited by applicable reorganization,
insolvency, liquidation, readjustment of debt, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity; the
representations and warranties set forth in Article IV of the
Reimbursement Agreement as amended hereby are true and correct in
all material respects as of the Effective Date; and no Event of
Default or event which with the giving of notice or passage of
time or both would become an Event of Default has occurred and is
continuing. The Company further represents and warrants that,
except as provided in the Reimbursement Agreement, the Company
has not granted any collateral to CIBC to secure the Company's
obligations under the Reimbursement Agreement and no other person
has provided a guaranty or collateral with respect thereto.
SECTION IV.2 Representations and Warranties of CIBC. (a)
CIBC hereby represents and warrants that the execution and
delivery by CIBC of this Agreement, the acceptance and assumption
of the rights and obligations assigned hereunder, the issuance
pursuant hereto of the New Letter of Credit and the performance
by CIBC of its obligations under the Reimbursement Agreement are
within its powers, have been duly authorized by all necessary
action, if any, do not contravene or conflict with any law, rule
or regulation applicable to CIBC or require any action by or
filing with any governmental or public body or authority or
result in a breach of or constitute a default under its charter
or by-laws or any agreement, indenture or instrument binding upon
it; this Agreement constitutes, and on the Effective Date, the
Reimbursement Agreement, as amended hereby and the New Letter of
Credit will constitute, the legal, valid and binding obligations
of CIBC, enforceable against CIBC in accordance with their
respective terms except as enforceability may be limited by
applicable reorganization, insolvency, liquidation, readjustment
of debt, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity.
(b) CIBC hereby represents and warrants that, except
to the extent it has rights under the Reimbursement Agreement, it
has not received any collateral from the Company to secure the
Company's obligations under the Reimbursement Agreement and that
no other person has guaranteed the obligations of the Company
under the Reimbursement Agreement or provided collateral with
respect thereto.
(c) CIBC hereby confirms to Westpac that it has
entered into this Agreement and the Reimbursement Agreement, as
amended hereby, on the basis of its own credit evaluation of the
Company and that Westpac has not made any representations or
warranties to CIBC (other than as set forth in Section 4.3).
SECTION IV.3 Representations and Warranties of Westpac.
(a) Westpac hereby represents and warrants on and as of the date
hereof and on as of the Effective Date that the execution,
delivery and performance by Westpac of this Agreement are within
its powers, have been duly authorized by all necessary action, if
any, do not contravene or conflict with any law, rule or
regulation applicable to Westpac or require any action by or
filing with any governmental or public body or authority or
result in a breach of or constitute a default under its charter
or by-laws; this Agreement constitutes, and on the Effective Date
will constitute, the legal, valid and binding obligation of
Westpac, enforceable against Westpac in accordance with its terms
except as enforceability may be limited by applicable
reorganization, insolvency, liquidation, readjustment of debt,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(b) Westpac represents and warrants that it owns all
of the right, title and interest of the Bank under the
Reimbursement Agreement free and clear of any adverse claims and
that to the best of its knowledge, having made no independent
investigation, no Event of Default or event which with the
passage of time or giving of notice or both would become an Event
of Default has occurred and is continuing.
SECTION V
CONDITIONS PRECEDENT
SECTION V.1 Conditions Precedent. The effectiveness of the
transactions contemplated by Section II and the amendments
provided in Section III of this Agreement shall be subject to the
fulfillment of the following conditions precedent:
(a) The Company, CIBC and Westpac as the case may be,
shall have received counterparts of this Agreement executed by
each of the other parties hereto.
(b) CIBC shall have received:
(i) the original executed Reimbursement
Agreement, including, without limitation, all amendments
thereto, certified as complete by the Company and Westpac;
(ii) copies of all of the Related Documents
(other than the Original Letter of Credit, the Bonds, the
Fee Agreement and the Reimbursement Agreement), including,
without limitation, all amendments thereto, certified as
complete by the Company;
(iii) a certificate of the Secretary or an
Assistant Secretary of the Company as to authorizing
resolutions of the Company's board of directors, the
incumbency and signatures of officers and such other matters
as the Bank may reasonably request; and
(iv) an opinion of Orgain, Bell & Tucker, L.L.P.,
counsel for the Company, in substantially the form of
Exhibit A hereto and as to such other matters as the Bank
may reasonably request.
(c) Westpac shall have received:
(i) the Original Letter of Credit; and
(ii) payment in full of all fees payable by the
Company pursuant to Section 2.03 of the Reimbursement
Agreement accrued through the Effective Date.
(d) The Trustee shall have received:
(i) an opinion of Mayer, Brown & Platt, counsel
to CIBC, and an opinion of Canadian counsel to CIBC, as to
the enforceability of the New Letter of Credit;
(ii) an opinion of Foley & Judell, Bond Counsel,
stating that the delivery of the New Letter of Credit to the
Trustee is authorized under the Indenture and complies with
the terms thereof;
(iii) an opinion of Morgan, Lewis & Bockius as to
certain bankruptcy law matters;
(iv) written evidence from each of Moody's
Investors Service Inc. and Standard & Poor's Corporation to
the effect that such rating agency has reviewed the proposed
New Letter of Credit and that the substitution of the
proposed New Letter of Credit will not, by itself, result in
either a withdrawal of its rating of the Bonds or the then
current rating of the Bonds being reduced; and
(v) the New Letter of Credit.
SECTION VI
MISCELLANEOUS
SECTION VI.1 Effective Amendment; Ratification. Except as
expressly amended and modified by this Agreement, the
Reimbursement Agreement is and shall continue to be in full force
and effect in accordance with the terms thereof and are hereby
ratified and confirmed by the parties thereto. From and after
the Effective Date (i) each reference to the Reimbursement
Agreement in any other instrument or document shall be deemed to
be a reference to the Reimbursement Agreement as amended hereby,
(ii) the Reimbursement Agreement, as amended hereby shall be
deemed to be the "Reimbursement Agreement" for purposes of the
Indenture and (iii) CIBC shall be the "Bank" for purposes of the
Indenture.
SECTION VI.2 Change of Address for Notices. Each party
hereto agrees that this Agreement shall constitute a change of
address for purposes of notice to the Bank and/or the "Bank" (as
defined in the Indenture) and that from and after the Effective
Date notices to the Bank and/or the "Bank" shall be sent to the
addresses set forth in Section 3.1(a), provided, however, that
drawings under the New Letter of Credit shall be sent in
accordance with the terms thereof.
SECTION VI.3 Further Assurances. Each party hereto agrees
that, from time to time, it will promptly execute and deliver all
further instruments and documents, and take all further action,
that may be necessary or desirable, as requested by any other
party hereto, in order to implement the transactions contemplated
hereby.
SECTION VI.4 Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
the respective successors and assigns.
SECTION VI.5 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 when taken together
shall constitute one and the same agreement.
SECTION VI.6 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the internal laws
of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by the respective officers thereunto duly
authorized as of the day first above written.
GULF STATES UTILITIES COMPANY
By:
Its:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
By:
Its:
WESTPAC BANKING CORPORATION
By:
Its:
<PAGE>
ANNEX I
IRREVOCABLE LETTER OF CREDIT
No. U-93-0006
September 8, 1993
The Bank of New York
One Wall Street
New York, New York 10015
Attention: Corporate Trust Department
Gentlemen:
We hereby establish, at the request and for the account of
Gulf States Utilities Company, a Texas corporation (the
"Company"), in your favor, as Trustee under the Indenture of
Trust and Pledge, dated as of December 1, 1985 (the "Indenture")
between the Parish of West Feliciana, State of Louisiana (the
"Issuer") and you, pursuant to which $28,400,000 in aggregate
principal amount of the Issuer's Variable Rate Demand Pollution
Control Revenue Bonds (Gulf States Utilities Company Project)
Series 1985-D (the "Bonds"), have been issued, our Irrevocable
Letter of Credit No. U-93-0006, in the amount of $28,978,894 (as
more fully described below), effective immediately and expiring
at the close of banking business at our Atlanta, Georgia office
hereinafter referred to on September 30, 1996 (the "Stated
Termination Date"). Of the total amount of this Letter of
Credit, (i) $28,400,000 shall support the payment of principal of
the Bonds and (ii) $578,894 shall support the payment of up to 62
days' interest on the Bonds computed at 12% per annum on the
principal thereof. All drawings under this Letter of Credit will
be paid with our own funds.
We hereby irrevocably authorize you to draw on us, in an
aggregate amount not to exceed the amount of this Letter of
Credit set forth above and in accordance with the terms and
conditions and subject to the reductions in amount as hereinafter
set forth, (1) in a single drawing (subject to the provisions
contained in the next following paragraph) by your demand for
payment, accompanied by your written and completed certificate
signed by you in the form of Annex A attached hereto (such demand
for payment accompanied by such certificate being your "Interest
Demand"), an amount not exceeding $326,795; (2) in one or more
drawings by one or more of your demands for payment, accompanied
by your written and completed certificate signed by you in the
form of Annex B attached hereto (any such demand for payment
accompanied by such certificate being your "Tender Demand"), an
aggregate amount not exceeding $28,726,795; (3) in a single
drawing by your demand for payment, accompanied by your written
and completed certificate signed by you in the form of Annex C
attached hereto (any such demand for payment accompanied by such
certificate being your "Conversion Demand"), an aggregate amount
not exceeding $28,726,795; (4) in one or more drawings by one or
more of your demands for payment, accompanied by your written and
completed certificate signed by you in the form of Annex D
attached hereto (any such demand for payment accompanied by such
certificate being your "Partial Redemption Demand"), an aggregate
amount not exceeding $28,726,795; (5) in a single drawing by your
demand for payment, accompanied by your written and completed
certificate signed by you in the form of Annex E attached hereto
(any such demand for payment accompanied by such certificate
being your "Purchase Demand"), an aggregate amount not exceeding
$28,726,795; and (6) in a single drawing by your demand for
payment, accompanied by your written and completed certificate
signed by you in the form of Annex F attached hereto (such demand
for payment accompanied by such certificate being your "Final
Demand"), an amount not exceeding $28,978,894. All such demands
for payment shall be presented to our Atlanta, Georgia office to
which we hereinafter refer and shall be payable at sight on a
banking day. Banking day, for purposes of this Letter of Credit,
shall mean any day except a Saturday, Sunday or other day on
which commercial banks located in the City of New York, New York
or the City of Chicago, Illinois are required by law, regulation
or executive order to close or on which such banks are generally
voluntarily closed for business in such locations. Each demand
for payment shall be in writing and signed by you in the form of
Annex J attached hereto.
If you shall draw on us by your Interest Demand under clause
(1) of the immediately preceding paragraph and you shall not have
received within ten calendar days from the date of such drawing a
notice from us to the effect that we have not been reimbursed for
such drawing, your right to draw on us in a single drawing by
your Interest Demand under said clause (1) shall be automatically
reinstated effective the 11th calendar day from the date of such
drawing; and this automatic reinstatement of your right to draw
on us by your Interest Demand shall be applicable to successive
drawings by your Interest Demands under clause (1) of the
immediately preceding paragraph so long as this Letter of Credit
shall not have terminated as set forth below.
Upon our honoring any Tender Demand or Partial Redemption
Demand presented by you hereunder, the amount of this Letter of
Credit and the amounts available to be drawn hereunder by you by
any subsequent Tender Demand, Conversion Demand, Partial
Redemption Demand, Purchase Demand and Final Demand shall be
automatically decreased by an amount equal to the amount of such
Tender Demand or Partial Redemption Demand. The amount of this
Letter of Credit and the amounts from time to time available to
be drawn by you hereunder by any Tender Demand, Conversion
Demand, Partial Redemption Demand, Purchase Demand or Final
Demand shall be reinstated when and to the extent, but only when
and to the extent, that we are reimbursed by the Company or by
you on behalf of the Company for any amount drawn hereunder by
any Tender Demands. Any amount received by us from or on behalf
of the Company in reimbursement of amounts drawn hereunder shall,
if accompanied by your completed and signed certificate signed by
you in substantially the form of Annex H attached hereto, be
applied to the extent of the amount indicated therein to
reimburse us for amounts drawn hereunder by your Tender Demands.
Alternatively, any amount deposited into a designated account
that we maintain with you shall, if accompanied by your notice to
us of such deposit, confirmed as soon as practicable by delivery
to us of your written and completed certificate signed by you in
substantially the form of Annex H attached hereto, be applied to
reimburse us for amounts drawn hereunder by your Tender Demands.
The amount of this Letter of Credit and the amounts
available to be drawn by you by any Interest Demand, Tender
Demand, Conversion Demand, Partial Redemption Demand, Purchase
Demand or Final Demand shall be permanently decreased upon our
receipt of your written and completed certificate signed by you
in the form of Annex G attached hereto (relating to a redemption
or defeasance of less than all the Bonds outstanding), to the
respective amounts stated in said certificate.
Funds under this Letter of Credit are available to you
against your above-mentioned demand for payment referring thereon
to the number of this Letter of Credit and accompanied by the
corresponding written and completed certificate signed by you in
the form of Annex A, B, C, D, E or F attached hereto. Each such
demand for payment and certificate shall be dated the date of its
presentation, and shall be presented at our office located at Two
Paces West, 2727 Paces Ferry Road, Atlanta, Georgia 30339,
Attention: Claire C. Coyne, Credit Operations (or at any other
office in the United States of America which may be designated by
us by written notice delivered to you) on or before 11:15 a.m.
(Chicago time) on the day (which shall be a banking day) of our
making funds available to you hereunder. If we receive any of
your demands for payment and certificates at such office, all in
strict conformity with the terms and conditions of this Letter of
Credit, not later than 11:15 a.m. (Chicago time) on a banking day
prior to the termination hereof, we will honor the same not later
than 2:00 p.m. (Chicago time) on the same day in accordance with
your payment instructions. If we receive any of your demands for
payment and certificates at such office, all in strict conformity
with the terms and conditions of this Letter of Credit, after
11:15 a.m. (Chicago time) on a banking day prior to the
termination hereof, we will honor the same not later than
2:00 p.m. (Chicago time) on the next succeeding banking day in
accordance with your payment instructions. Your demands for
payment and certificates may be presented to us by tested telex
or by telecopier if sent to Telex No. 54-2413 (ANSWERBACK:
CANBANK ATL) or to telecopier number (404) 319-4950, as the case
may be (or to such other number as may be designated by us by
written notice delivered to you).
If requested by you, payment under this Letter of Credit may
be made by wire transfer of immediately available funds in
accordance with your payment instructions.
Upon the earliest of (i) our honoring your Final Demand
presented hereunder, (ii) 20 days after our honoring your
Conversion Demand or your Purchase Demand presented hereunder,
(iii) 20 days after the date on which we receive written notice
from you that the Bonds have been converted to a "Fixed Rate"
within the meaning of the Indenture, (iv) 20 days after the date
on which we receive written notice from you that an alternate
letter of credit or other credit facility has been substituted
for this Letter of Credit in accordance with the Indenture, (v)
the date on which we receive written notice from you that there
are no longer any Bonds "outstanding" within the meaning of the
Indenture, and (vi) the Stated Termination Date, this Letter of
Credit shall automatically terminate.
Except as herein expressly stated, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary
Credits (1983 revision) (International Chamber of Commerce
Publication No. 400), or any later revision which may be in
effect at the time (the "Uniform Customs"). This Letter of
Credit shall be deemed to be made under the laws of the State of
New York, including the Uniform Commercial Code as in effect in
the State of New York, and shall, as to matters not governed by
the Uniform Customs, be governed by and construed in accordance
with the laws of the State of New York.
This Letter of Credit is transferable in its entirety (but
not in part) to any transferee who you certify to us has
succeeded you as Trustee under the Indenture. Notwithstanding
Article 54e of the Uniform Customs, this Letter of Credit may be
successively transferred. Transfer of the available balance
under this Letter of Credit to such transferee shall be effected
by the presentation to us of this Letter of Credit accompanied by
the transfer commission and a certificate in substantially the
form of Annex I attached hereto. Upon such presentation we shall
forthwith transfer the same to your transferee or, if so
requested by your transferee, issue a letter of credit to your
transferee with provisions therein consistent with this Letter of
Credit.
This Letter of Credit sets forth in full our undertaking,
and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or
agreement referred to herein (including, without limitation, the
Bonds), except only the certificates and the demands for payment
referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or
agreement except for such certificates and such demands for
payment.
Communications with respect to this Letter of Credit shall
be in writing and shall be addressed to us at Two Paces West,
2727 Paces Ferry Road, Atlanta, Georgia 30339, Attention: Claire
C. Coyne, Credit Operations, specifically referring to the number
of this Letter of Credit.
Very truly yours,
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
By: _____________________________
Title:_______________________
By: _____________________________
Title:_______________________
<PAGE>
Annex A
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE PAYMENT OF UP
TO THIRTY-FIVE DAYS' INTEREST ON THE VARIABLE RATE DEMAND
POLLUTION CONTROL REVENUE BONDS (GULF STATES UTILITIES
COMPANY PROJECT) SERIES 1985-D (THE "BONDS")
Irrevocable Letter of Credit No. U-93-0006
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under
the Letter of Credit with respect to a payment of
interest on the Bonds, which payment is due on the
date as of which this Certificate and the Interest
Demand it accompanies are being presented to the
Bank. None of the Bonds to which this Certificate
pertains is held of record by the Company or by
the undersigned for the account of the Company.
(3) [The Interest Demand accompanying this
Certificate is the first Interest Demand presented
by the Trustee under the Letter of Credit.]*/
[The Interest Demand last presented by the Trustee
under the Letter of Credit was honored and paid by
the Bank on _______________, 19__, and the Trustee
has not received a notice from the Bank that the
Bank has not been reimbursed.]**/
(4) The amount of the Interest Demand
accompanying this Certificate is $__________. It
was computed in compliance with the terms and
conditions of the Bonds and the Indenture, and
does not include any amount of interest which is
included in any Tender Demand, Conversion Demand,
Partial Redemption Demand, Purchase Demand, or
Final Demand presented on or prior to the date of
this Certificate.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ____ day of ____________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By__________________________
[Name and Title]
<PAGE>
Annex B
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE PAYMENT OF
PRINCIPAL OF AND UP TO THIRTY-FIVE DAYS' INTEREST ON THE
VARIABLE RATE DEMAND POLLUTION CONTROL REVENUE BONDS (GULF
STATES UTILITIES COMPANY PROJECT) SERIES 1985-D (THE
"BONDS") IN SUPPORT OF A TENDER
Irrevocable Letter of Credit No. U-93-0006
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under
the Letter of Credit with respect to the payment,
upon a tender of all or less than all of the Bonds
that are outstanding (as defined in the
Indenture), of the unpaid principal amount of, and
up to 35 days' accrued and unpaid interest on, the
Bonds to be purchased as a result of such tender
pursuant to the terms of the paragraphs captioned
"Daily Rate Put" or "Variable Rate Put" in
Section 7 of the Bonds (other than Bonds, or
$100,000 portions thereof, presently held of
record by the Company or by the Trustee for the
account of the Company), which payment is due on
the date as of which this Certificate and the
Tender Demand it accompanies are being presented
to the Bank.
(3) The amount of the Tender Demand
accompanying this Certificate is equal to the sum
of (i) $_____________ being drawn in respect of
the payment of unpaid principal of Bonds (other
than Bonds, or $100,000 portions thereof,
presently held of record by the Company or by the
Trustee for the account of the Company) to be
purchased as a result of a tender and (ii)
$__________ being drawn in respect of the payment
of accrued and unpaid interest on such Bonds, and
does not include any amount of interest that is
included in any Interest Demand, Conversion
Demand, Partial Redemption Demand, Purchase
Demand, or Final Demand presented on or prior to
the date of this Certificate.
(4) The amount of the Tender Demand
accompanying this Certificate was computed in
compliance with the terms and conditions of the
Bonds and the Indenture and does not exceed the
amount available to be drawn by the Trustee under
the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the _____ day of ______________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By____________________________
[Name and Title]
<PAGE>
Annex C
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE PAYMENT OF
PRINCIPAL OF AND UP TO THIRTY-FIVE DAYS' INTEREST ON THE
VARIABLE RATE DEMAND POLLUTION CONTROL REVENUE BONDS (GULF
STATES UTILITIES COMPANY PROJECT) SERIES 1985-D (THE
"BONDS") UPON A MANDATORY REDEMPTION AT THE BEGINNING OF A
FIXED RATE PERIOD OR UPON A FAILURE TO REPLACE THE LETTER OF
CREDIT
Irrevocable Letter of Credit No. U-93-0006
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under
the Letter of Credit with respect to the payment,
upon a mandatory redemption pursuant to the
paragraphs captioned "Mandatory Redemption at
Beginning of Fixed Rate Period" (conversion to a
"Fixed Rate" within the meaning of the Indenture)
or "Mandatory Redemption for Failure to Replace
Letter of Credit" in Section 8 of the Bonds of all
or less than all of the Bonds that are outstanding
(as defined in the Indenture), of the unpaid
principal amount of, and up to 35 days' accrued
and unpaid interest on, the Bonds to be so
redeemed (other than Bonds, or $100,000 portions
thereof, presently held of record by the Company
or by the Trustee for the account of the Company),
which payment is due on the date on which this
Certificate and the Conversion Demand it
accompanies are being presented to the Bank.
(3) The amount of the Conversion Demand
accompanying this Certificate is equal to the sum
of (i) $__________ being drawn in respect of the
payment of unpaid principal of Bonds (other than
Bonds, or $100,000 portions thereof, presently
held of record by the Company or by the Trustee
for the account of the Company) to be redeemed and
(ii) $______________ being drawn in respect of the
payment of up to 35 days' accrued and unpaid
interest on such Bonds, and does not include any
amount of interest on the Bonds that is included
in any Interest Demand, Tender Demand, Partial
Redemption Demand, Purchase Demand or Final Demand
presented on or prior to the date of this
Certificate.
(4) The amount of the Conversion Demand
accompanying this Certificate was computed in
compliance with the terms and conditions of the
Bonds and the Indenture and does not exceed the
amount available to be drawn by the Trustee under
the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ____ day of _______________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By_____________________________
[Name and Title]
<PAGE>
Annex D
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE PAYMENT OF
PRINCIPAL OF AND UP TO THIRTY-FIVE DAYS' INTEREST ON THE
VARIABLE RATE DEMAND POLLUTION CONTROL REVENUE BONDS (GULF
STATES UTILITIES COMPANY PROJECT) SERIES 1985-D (THE
"BONDS") UPON A PARTIAL REDEMPTION)
Irrevocable Letter of Credit No. U-93-0006
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under
the Letter of Credit with respect to the payment,
upon redemption of less than all of the Bonds that
are outstanding (as defined in the Indenture), of
the unpaid principal amount of, and up to 35 days'
accrued and unpaid interest on, Bonds to be
redeemed pursuant to the paragraph captioned
"Optional Redemption During Daily or Variable Rate
Period" in Section 8 of the Bonds (other than
Bonds, or $100,000 portions thereof, presently
held of record by the Company or by the Trustee
for the account of the Company), which payment is
due on the date on which this Certificate and the
Partial Redemption Demand it accompanies are being
presented to the Bank.
(3) The amount of the Partial Redemption
Demand accompanying this Certificate is equal to
the sum of (i) $______________ being drawn in
respect of the payment of unpaid principal of
Bonds (other than Bonds, or $100,000 portions
thereof, presently held of record by the Company
or by the Trustee for the account of the Company)
to be redeemed and (ii) $___________ being drawn
in respect of the payment of accrued and unpaid
interest on such Bonds, and does not include any
amount of interest on the Bonds that is included
in any Interest Demand, Tender Demand, Conversion
Demand, Purchase Demand or Final Demand presented
on or prior to the date of this Certificate.
(4) The amount of the Partial Redemption
Demand accompanying this Certificate was computed
in accordance with the terms and conditions of the
Bonds and the Indenture and does not exceed the
amount available to be drawn under the Letter of
Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ____ day of ___________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By_____________________________
[Name and Title]
<PAGE>
Annex E
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE PAYMENT OF AN
AMOUNT EQUAL TO PRINCIPAL OF AND UP TO THIRTY-FIVE DAYS'
INTEREST ON THE VARIABLE RATE DEMAND POLLUTION CONTROL
REVENUE BONDS (GULF STATES UTILITIES COMPANY PROJECT) SERIES
1985-D (THE "BONDS") IN SUPPORT OF A PURCHASE IN LIEU OF
REDEMPTION
Irrevocable Letter of Credit No. U-93-0006
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under
the Letter of Credit with respect to the payment
of an amount equal to the unpaid principal amount
of, and up to 35 days' accrued and unpaid interest
on, the Bonds to be purchased by the Company in
lieu of redemption pursuant to the terms of
Section 3.07 of the Indenture (other than Bonds,
or $100,000 portions thereof, presently held of
record by the Company or by the Trustee for the
account of the Company), which payment is due on
the date on which this Certificate and the
Purchase Demand it accompanies are being presented
to the Bank.
(3) The amount of the Purchase Demand
accompanying this Certificate is equal to the sum
of (i) $______________ being drawn in respect of
the payment of an amount equal to the unpaid
principal of Bonds (other than Bonds, or $100,000
portions thereof, presently held of record by the
Company or by the Trustee for the account of the
Company) to be purchased by the Company in lieu of
redemption and (ii) $___________ being drawn in
respect of the payment of up to 35 days' accrued
and unpaid interest on such Bonds, and does not
include any amount of interest on the Bonds that
is included in any Interest Demand, Tender Demand,
Conversion Demand, Partial Redemption Demand or
Final Demand presented on or prior to the date of
this Certificate.
(4) The amount of the Purchase Demand
accompanying this Certificate was computed in
compliance with the terms and conditions of the
Bonds and the Indenture and does not exceed the
amount available to be drawn by the Trustee under
the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ____ day of ___________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By_____________________________
[Name and Title]
<PAGE>
Annex F
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE PAYMENT OF
PRINCIPAL OF AND UP TO SIXTY-TWO DAYS' INTEREST ON THE
VARIABLE RATE DEMAND POLLUTION CONTROL REVENUE BONDS (GULF
STATES UTILITIES COMPANY PROJECT) SERIES 1985-D (THE
"BONDS") UPON STATED OR ACCELERATED MATURITY OR OPTIONAL OR
MANDATORY REDEMPTION AS A WHOLE
Irrevocable Letter of Credit No. U-93-0006
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under
the Letter of Credit with respect to the payment,
either at stated maturity, upon acceleration, or
as a result of a redemption pursuant to Section 8
of the Bonds, of the unpaid principal amount of,
and up to 62 days' accrued and unpaid interest on,
all of the Bonds that are "outstanding" within the
meaning of the Indenture (other than Bonds, or
$100,000 portions thereof, presently held of
record by the Company or by the Trustee for the
account of the Company), which payment is due on
the date on which this Certificate and the Final
Demand it accompanies are being presented to the
Bank.
(3) The amount of the Final Demand
accompanying this Certificate is equal to the sum
of (i) $______________ being drawn in respect of
the payment of unpaid principal of Bonds (other
than Bonds, or $100,000 portions thereof,
presently held of record by the Company or by the
Trustee for the account of the Company), and (ii)
$___________ being drawn in respect of the payment
of up to 62 days' accrued and unpaid interest on
such Bonds, and does not include any amount of
interest on the Bonds that is included in any
Interest Demand, Tender Demand, Conversion Demand,
Partial Redemption Demand or Purchase Demand
presented on or prior to the date of this
Certificate.
(4) The amount of the Final Demand
accompanying this Certificate was computed in
compliance with the terms and conditions of the
Bonds and the Indenture and does not exceed the
amount available to be drawn by the Trustee under
the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ____ day of ___________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By_____________________________
[Name and Title]
<PAGE>
Annex G
CERTIFICATE FOR THE REDUCTION OF AMOUNTS AVAILABLE UNDER
IRREVOCABLE LETTER OF CREDIT NO. U-93-0006 DATED SEPTEMBER
8, 1993
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The Trustee hereby notifies you that on
or prior to the date hereof $______________
principal amount of the Bonds have been redeemed
and paid or have been defeased pursuant to the
Indenture.
(3) Following the redemption and payment or
the defeasance referred to in paragraph (2) above,
the aggregate principal amount of all of the Bonds
which are "outstanding" within the meaning of the
Indenture is $_____________.
(4) The maximum amount of interest, computed
at 12% per annum, which could accrue on the Bonds
referred to in paragraph (3) above in a period of
35 days is $_____________.
(5) The amount available to be drawn by the
Trustee under the Letter of Credit by any Interest
Demand is reduced to $__________________ (such
amount being equal to the amount specified in
paragraph (4) above) upon receipt by the Bank of
this Certificate.
(6) The amount available to be drawn by the
Trustee under the Letter of Credit by any Tender
Demand, Conversion Demand, Partial Redemption
Demand or Purchase Demand is reduced to
$____________ (such amount being equal to the sum
of the amounts specified in paragraphs (3) and (4)
above) upon receipt by the Bank of this
Certificate.
(7) The amount available to be drawn by the
Trustee under the Letter of Credit by its Final
Demand is reduced to $___________ (such amount
being equal to the sum of the amounts specified in
paragraphs (4) and (6) above) upon receipt by the
Bank of this Certificate.
(8) The amount of the Letter of Credit is
reduced to $______________ (such amount being
equal to the sum of the amounts specified in
paragraph (7) above) upon receipt by the Bank of
this Certificate.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate this ____ day of ___________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By_____________________________
[Name and Title]
<PAGE>
Annex H
CERTIFICATE FOR THE REINSTATEMENT OF AMOUNTS AVAILABLE UNDER
IRREVOCABLE LETTER OF CREDIT NO. U-93-0006 DATED SEPTEMBER
8, 1993
The undersigned, a duly authorized officer of the
undersigned Trustee (the "Trustee"), hereby certifies to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), with
reference to Irrevocable Letter of Credit No. U-93-0006 (the
"Letter of Credit," the terms defined therein and not otherwise
defined herein being used herein as therein defined) issued by
the Bank in favor of the Trustee, as follows:
(1) The Trustee is the Trustee under the
Indenture for the holders of the Bonds.
(2) The amount of $____________ paid to you
today by the Company or by the Trustee on behalf
of the Company is a payment made to reimburse you,
pursuant to Section 2.08(b) of the Letter of
Credit and Reimbursement Agreement, dated
December 27, 1985, as amended (the "Reimbursement
Agreement"), between the Company and the Bank, for
amounts drawn under the Letter of Credit by Tender
Demands.
(3) Of the amount referred to in paragraph
(2), $___________ represents the aggregate
principal amount of Bonds resold or to be resold
on behalf of the Company.
(4) Of the amount referred to in paragraph
(2), $____________ represents interest on Bonds
calculated in accordance with clause (ii) of
Section 2.08(b) of the Reimbursement Agreement.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ____ day of ___________, 19__.
[NAME OF INDENTURE TRUSTEE],
as Trustee
By_____________________________
[Name and Title]
<PAGE>
Annex I
INSTRUCTION TO TRANSFER
______________, 19__
Canadian Imperial Bank of Commerce,
New York Agency
Two Paces West
2727 Paces Ferry Road
Atlanta, Georgia 30339
Re: Irrevocable Letter of Credit No. U-93-0006
Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
______________________________
[Name of Transferee]
_______________________________
[Address]
all rights of the undersigned beneficiary to draw under the above-
captioned Letter of Credit (the "Letter of Credit"). We hereby
certify that the transferee has succeeded the undersigned as
Trustee under the Indenture (as defined in the Letter of Credit).
By this transfer, all rights of the undersigned beneficiary
in the Letter of Credit are transferred to the transferee and the
transferee shall hereafter have the sole rights as beneficiary
thereof; provided, however, that no rights shall be deemed to
have been transferred to the transferee until such transfer
complies with the requirements of the Letter of Credit pertaining
to transfers.
The Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that you
transfer the Letter of Credit to our transferee or that, if so
requested by the transferee, you issue a new irrevocable letter
of credit in favor of the transferee with provisions consistent
with the Letter of Credit.
Very truly yours,
[NAME OF INDENTURE TRUSTEE],
as predecessor Trustee
By________________________________
[Name and Title]
<PAGE>
Annex J
DEMAND FOR PAYMENT
______________, 19__
Canadian Imperial Bank of Commerce,
New York Agency
Two Paces West
2727 Paces Ferry Road
Atlanta, Georgia 30339
Re: Irrevocable Letter of Credit No. U-93-0006
Gentlemen:
The undersigned beneficiary of the above-captioned Letter of
Credit issued by you, hereby demands payment of $_____________
pursuant to such Letter of Credit.
Very truly yours,
[NAME OF INDENTURE TRUSTEE],
as Trustee
By___________________________
[Name and Title]
_______________________________
*/ To be used in the Certificate relating to the
first Interest Demand only.
**/ To be used in each Certificate relating to each
Interest Draft other than the first Interest
Demand.
EXHIBIT C-8(i)
_________________________________________________________________
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
dated as of February 26, 1996
among
GULF STATES UTILITIES COMPANY,
VARIOUS BANKS
and
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY,
individually and as Agent
Relating to $20,000,000 Parish of West Feliciana,
State of Louisiana, Multiple Rate Demand
Pollution Control Revenue Bonds
(Gulf States Utilities Company Project) Series 1986
<PAGE>
_________________________________________________________________
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENTS 1
ARTICLE I
DEFINITIONS 2
Section
1.01. Certain Defined Terms 2
1.02. Computation of Time Periods 8
1.03. Accounting Terms 8
1.04. Internal References 8
ARTICLE II
AMOUNT AND TERMS OF THE LETTER OF CREDIT 9
2.01. The Letter of Credit 9
2.02. Participations in Letter of Credit 9
2.03. Commissions and Fees 9
2.04. Reimbursement On Demand 10
2.05. Advances 11
2.06. Reimbursement Obligations Deemed to be Loans;
Funding by Banks to CIBC 11
2.07. Prepayments; Reinstatement of Letter of Credit
Amounts 13
2.08. Increased Costs 13
2.09. Increased Capital 14
2.10. Taxes 14
2.11. Payments and Computations 15
2.12. Non-Business Days 16
2.13. Extension of the Stated Termination Date 16
2.14. Evidence of Debt 16
2.15. Obligations Absolute 17
ARTICLE III
CONDITIONS PRECEDENT 18
3.01. Condition Precedent to Issuance of the Letter of
Credit 18
3.02. Additional Conditions Precedent to Issuance of the
Letter of Credit 19
3.03. Condition Precedent to Each Advance 19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES 20
4.01. Representations and Warranties of the Company 20
ARTICLE V
COVENANTS OF THE COMPANY 23
5.01. Affirmative Covenants 23
(a) Preservation of Corporate Existence, Etc 23
(b) Compliance with Laws, Etc. 24
(c) Visitation Rights 24
(d) Keeping of Books 25
(e) Reporting Requirements 25
(f) Redemption or Defeasance of Bonds 27
(g) Registration of Bonds 27
(h) Maintenance of Insurance 27
5.02. Negative Covenants 28
(a) Amendment of Any Related Document 28
(b) Compliance with ERISA 28
(c) Sales, Etc., of Assets 28
(d) Mergers, Etc 28
(e) Restrictive Agreements 29
(f) Incurrence of Indebtedness 29
ARTICLE VI
EVENTS OF DEFAULT 30
6.01. Events of Default 30
6.02. Upon an Event of Default 32
ARTICLE VII
MISCELLANEOUS 33
7.01. Amendments, Etc 33
7.02. Notices, Etc 33
7.03. No Waiver; Remedies 33
7.04. Right of Set-off; Sharing of Payments 33
7.05. Indemnification 35
7.06. Liability of the Banks 36
7.07. Costs, Expenses and Taxes 37
7.08. Binding Effect 38
7.09. Severability 38
7.10. Governing Law 38
7.11. Headings 38
7.12. Subparticipation 38
7.13. Acknowledgements and Agreements by the Banks 39
7.14. Authorization 39
7.15. Action by the Agent 39
7.16. Indemnification by the Banks 40
7.17. Exculpation of the Agent 41
7.18. Knowledge 41
7.19. Resignation 41
7.20. Forum Selected and Consent to Jurisdiction 42
7.21. Waiver of Jury Trial 42
7.22. Usury Not Intended. 43
7.23. Revolving Credit Statute 44
EXHIBIT A - Form of Irrevocable Letter of Credit with
Exhibits 1 through 4 thereto
EXHIBIT B - Form of Custodian and Pledge Agreement
EXHIBIT C - Form of Opinion of Counsel to the Company
||
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT, dated as of
February 26, 1996, among GULF STATES UTILITIES COMPANY, a Texas
corporation (the "Company"), the undersigned banks and CANADIAN
IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as Agent for the
Banks (in such capacity, the "Agent").
PRELIMINARY STATEMENTS. (1) At the Company's request,
the Parish of West Feliciana, State of Louisiana (the "Issuer")
issued, pursuant to an Indenture of Trust and Pledge, dated as of
April 1, 1986 (the "Indenture"), between The Bank of New York (as
successor to Irving Trust Company) as trustee (such entity, or
its successor as trustee, being the "Trustee") and the Issuer,
$20,000,000 aggregate principal amount of Parish of West
Feliciana, State of Louisiana, Multiple Rate Demand Pollution
Control Revenue Bonds (Gulf States Utilities Company Project)
Series 1986 (the "Bonds") to various purchasers.
(2) The Issuer and the Company entered into a Sublease
Agreement, an Equipment Lease and an Easement Agreement, each
dated as of April 1, 1986 (the "Financing Agreements"), which the
Issuer assigned to secure the payment of the Bonds, and pursuant
to which, among other things, the Company furnished a letter of
credit issued by The Long-Term Credit Bank of Japan, Limited, New
York Branch pursuant to the terms of a Reimbursement and Loan
Agreement, dated April 23, 1986, as amended February 19, 1993,
between the Company and The Long-Term Credit Bank of Japan,
Limited, New York Branch.
(3) Pursuant to the option of the Company under the
Indenture to provide for delivery to the Trustee of an alternate
letter of credit (as provided in Section 5.01 of the Indenture),
the Company has requested Canadian Imperial Bank of Commerce, New
York Agency (acting in its individual corporate capacity, "CIBC")
to issue its irrevocable transferable letter of credit, in
substantially the form of Exhibit A (such letter of credit, as it
may from time to time be extended or amended pursuant to the
terms of this Agreement, being the "Letter of Credit"), in the
amount of $20,407,671 (the "Commitment") of which (i) $20,000,000
shall support the payment of principal of the Bonds, and (ii)
$407,671 shall support the payment of up to 62 days' interest on
the principal amount of the Bonds computed at a maximum rate of
12% per annum.
(4) As more fully set forth hereinafter, additional
Banks may become party hereto and purchase participations in the
Letter of Credit.
NOW, THEREFORE, in consideration of the premises and in
order to induce CIBC to issue the Letter of Credit and the Banks
to participate therein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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):
"Advance" has the meaning assigned to it in Section
2.05.
"Affiliate" means any trade or business (whether or not
incorporated) which is a member of a group of which the
Company is a member and which is under common control within
the meaning of the regulations under Section 414 of the
Internal Revenue Code of 1986, as amended.
"Agent" has the meaning assigned to it in the Preamble
to this Agreement, and includes any successor thereto.
"Agreement" means this Letter of Credit and
Reimbursement Agreement as it may be amended, supplemented
or otherwise modified in accordance with the terms hereof at
any time and from time to time.
"Alternate Base Rate" means on any date a fluctuating
rate of interest per annum equal to the higher of
(a) the rate of interest most recently
announced by CIBC in New York City as its prime
commercial lending rate (the "Prime Rate"); and
(b) the Federal Funds Rate most recently
determined by CIBC plus 1/2 of 1%.
Neither the Prime Rate nor the Alternate Base Rate is
necessarily intended to be the lowest rate of interest
determined by CIBC in connection with extensions of Credit.
Changes in the rate of interest will take effect
simultaneously with each change in the Alternate Base Rate.
The Agent will give notice promptly to the Company and the
Banks of changes in the Alternate Base Rate.
"Available Amount" in effect at any time means the
maximum amount available to be drawn at such time under the
Letter of Credit, the determination of such maximum amount
to assume compliance with all conditions for drawing and no
reduction for (i) any amount drawn by the Trustee in order
to make a regularly scheduled payment of interest on the
Bonds (unless such amount is not reinstated under the Letter
of Credit) or (ii) any amount not available to be drawn
because Bonds are held by or for the account of the Company.
"Bank" means each of the banks whose signature appears
on the signature pages of this Agreement, including, without
limitation, CIBC in its capacity as issuer of the Letter of
Credit, and their respective successors and assigns; "Banks"
refers to all such banks.
"Bonds" has the meaning assigned to that term in the
Preliminary Statements hereto.
"Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks located in the city
where the Trustee maintains its principal corporate trust
office or where Demands under the Letter of Credit are
presented to CIBC are required by law, regulation or
executive order to close or on which such banks are
generally voluntarily closed for business in such locations
and on which the New York Stock Exchange is open.
"Capital Lease" means any lease which is capitalized on
the books of the lessee in accordance with generally
accepted accounting principles as in effect on the date
hereof, consistently applied. The term "Capital Lease"
shall not include any operating leases that, under generally
accepted accounting principles as in effect on the date
hereof, are not so capitalized.
"CIBC" has the meaning assigned to that term in the
Preliminary Statements hereto.
"Collateral" has the meaning assigned to that term in
Section 1.1 of the Custodian Agreement.
"Commitment" has the meaning assigned to that term in
the Preliminary Statements hereto.
"Company" has the meaning assigned to that term in the
Preamble hereto.
"Custodian Agreement" means the custodian and pledge
agreement in substantially the form of Exhibit B hereto.
"Debt" means, without duplication, (i) indebtedness for
borrowed money or for the deferred purchase price of
property or services, (ii) obligations as lessee under
Capital Leases, (iii) liabilities in respect of unfunded
vested benefits under plans covered by Title IV of ERISA,
(iv) withdrawal liability incurred under ERISA by the
Company or any Affiliate to any Multiemployer Plan, (v) all
obligations (contingent or otherwise) under reimbursement or
other similar agreements with respect to the issuance of
letters of credit (other than obligations in respect of
documentary letters of credit opened for the payment of
goods or services in the ordinary course of business), (vi)
obligations under direct or indirect guarantees in respect
of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness, obligations and
liabilities of others of the kind referred to in clauses (i)
through (v) above, and (vii) to the extent due and payable
on any date of determination, all interest and premium on,
and other fees or charges payable in connection with,
indebtedness or obligations of the kinds referred to in
clauses (i) through (vi) above.
"Default Rate" means a fluctuating interest rate equal
at all times to 2% per annum above the Alternate Base Rate
in effect from time to time.
"Demand" has the meaning assigned to that term in the
Letter of Credit.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Event of Default" has the meaning assigned to that
term in Section 6.01.
"Federal Funds Rate" means for any day, the weighted
average of the rate on overnight federal funds transactions
with member banks of the Federal Reserve System arranged by
Federal funds brokers as published by the Federal Reserve
Bank of New York for such day (or, if such day is not a
Business Day, for the next preceding Business Day), 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 CIBC from three Federal funds
brokers of recognized standing selected by it.
"Financing Agreements" has the meaning assigned to that
term in the Preliminary Statements hereto.
"First Mortgage Indenture" means the Indenture of
Mortgage dated as of September 1, 1926, from the Company to
Chemical Bank, as successor trustee, as such indenture has
heretofore been supplemented, modified or amended, and as it
may hereafter be supplemented, modified or amended from time
to time or at any time.
"Fixed Assets" means at any time the total net plant,
including construction work in progress, as reported by the
Company on its most recent consolidated balance sheet.
"Fronting Fee Rate" at any time means whichever of the
following is applicable at such time:
(i) 0.075% per annum in the event that, and
at all times during which, the senior secured long-term
Debt of the Company not entitled to the benefits of the
Letter of Credit or other credit enhancement facility
(the "Senior Debt") is rated A3 or higher by Moody's
and A- or higher by S&P;
(ii) 0.0875% per annum in the event that,
and at all times during which, the Senior Debt is rated
Baal or higher by Moody's and BBB+ or higher by S&P but
lower than A3 by Moody's or lower than A- by S&P;
(iii) 0.10% per annum in the event that, and
at all times during which, the Senior Debt is rated
Baa2 or higher by Moody's and BBB or higher by S&P but
lower than Baa1 by Moody's or lower than BBB+ by S&P;
(iv) 0.10% per annum in the event that, and
at all times during which, the Senior Debt is rated
Baa3 or higher by Moody's and BBB- or higher by S&P but
lower than Baa2 by Moody's or lower than BBB by S&P; or
(v) 0.10% per annum in the event that, and
at all times during which, the Senior Debt is rated
lower than Baa3 by Moody's or lower than BBB- by S&P or
is not rated by Moody's or is not rated by S&P.
The Fronting Fee Rate shall be redetermined upon any change
in the rating of the Senior Debt by either Moody's or S&P,
and such redetermined rate shall be effective from the date
of such change.
"Funding Default" has the meaning assigned to that term
in Section 2.06(b).
"Indenture" has the meaning assigned to that term in
the Preliminary Statements hereto.
"Issuer" has the meaning assigned to that term in the
Preliminary Statements hereto.
"Letter of Credit" has the meaning assigned to that
term in the Preliminary Statements hereto.
"Letter of Credit Fee Rate" at any time means whichever
of the following is applicable at such time:
(i) 0.250% per annum in the event that, and
at all times during which, the Senior Debt is rated A3
or higher by Moody's and A- or higher by S&P;
(ii) 0.3125% per annum in the event that,
and at all times during which, the Senior Debt is rated
Baal or higher by Moody's and BBB+ or higher by S&P but
lower than A3 by Moody's or lower than A- by S&P;
(iii) 0.375% per annum in the event that,
and at all times during which, the Senior Debt is rated
Baa2 or higher by Moody's and BBB or higher by S&P but
lower than Baa1 by Moody's or lower than BBB+ by S&P;
(iv) 0.475% per annum in the event that, and
at all times during which, the Senior Debt is rated
Baa3 or higher by Moody's and BBB- or higher by S&P but
lower than Baa2 by Moody's or lower than BBB by S&P; or
(v) the sum of (A) 0.775% per annum in the
event that, and at all times during which, the Senior
Debt is rated lower than Baa3 by Moody's or lower than
BBB- by S&P or is not rated by Moody's or is not rated
by S&P plus (B) 0.20% per annum in the event that, and
at all times during which, the obligations of the
Company under this Agreement are not fully secured by a
pledge of bonds issued under the First Mortgage
Indenture in accordance with Section 2.03(e).
The Letter of Credit Fee Rate shall be redetermined upon any
change in the rating of the Senior Debt by either Moody's or
S&P, and such redetermined rate shall be effective from the
date of such change.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or otherwise), charge against or interest in
property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Majority Banks" means, at any time, those Banks whose
Percentages in the aggregate are greater than fifty percent
(50%).
"Maturity Date" with respect to any Advance has the
meaning assigned to it in Section 2.05.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
"Official Statement" means the Reoffering Circular
dated November 19, 1986 of the Issuer relating to the Bonds,
together with the documents incorporated therein by
reference.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereto.
"Percentage" means, as to any Bank, the percentage set
forth opposite such Bank's signature hereto, as such
percentage may be adjusted from time to time pursuant to an
assignment under Section 7.08 or 7.12.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company,
joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained for employees of the Company
or any Affiliate and covered by Title IV of ERISA.
"Prime Rate" has the meaning assigned to that term in
the definition of "Alternate Base Rate" in this Section.
"Related Documents" has the meaning assigned to that
term in Section 2.15(i).
"Remarketing Agreement" has the meaning assigned to
that term in Section 1.1 of the Custodian Agreement.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc. or any successor
thereto.
"Senior Debt" has the meaning assigned to that term in
the definition of "Fronting Fee Rate" in this Section.
"Significant Subsidiary" has the meaning assigned to
that term under Regulation S-X promulgated by the Securities
and Exchange Commission.
"Stated Termination Date" means the expiration date
specified in clause (i) of the first paragraph of the Letter
of Credit (which date shall initially be February 25, 1999),
as such date may be extended pursuant to Section 2.13 or
modified pursuant to the Letter of Credit.
"Subsidiary" shall mean a corporation, joint venture or
other entity of which the Company and/or its other
Subsidiaries own, directly or indirectly, such number of
outstanding shares or interests as have at least 50% of the
ordinary voting power for the election of directors or the
governance of the business of such entity. Unless the
context otherwise requires, each reference to Subsidiaries
herein shall be a reference to Subsidiaries of the Company.
"Termination Date" has the meaning assigned to that
term in the Letter of Credit.
"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 the PBGC under such
regulations), or (ii) the withdrawal of the Company or any
of its Affiliates from a Plan during a plan year in which it
was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of
intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or
(iv) the institution of proceedings to terminate a Plan by
the PBGC, or (v) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan.
"Trustee" has the meaning assigned to that term in the
Preliminary Statements hereto.
SECTION 1.02. Computation of Time Periods. In this
Agreement, in the computation of a period 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 United States accounting principles
consistently applied, except as otherwise stated herein.
SECTION 1.04. Internal References. The words
"herein", "hereof" and "hereunder" and words of similar import,
when used in this Agreement, shall refer to this Agreement as a
whole and not to any provision of this Agreement, and "Article",
"Section", "subsection", "paragraph", and respective references
are to Articles, Sections, subsections, paragraphs and related
references respectively, in this Agreement unless otherwise
specified.
ARTICLE II
AMOUNT AND TERMS OF THE LETTER OF CREDIT
SECTION 2.01. The Letter of Credit. CIBC agrees, on
the terms and conditions hereinafter set forth (including,
without limitation, in Article III), to issue the Letter of
Credit to the Trustee on the date hereof in the amount of the
Commitment and expiring on or before the Stated Termination Date.
SECTION 2.02. Participations in Letter of Credit.
Concurrently with the issuance of the Letter of Credit, CIBC
shall be deemed to have sold and transferred to each other Bank,
and each other Bank shall be deemed irrevocably and
unconditionally to have purchased and received from CIBC, without
recourse or warranty (subject to Section 7.06), an undivided
interest and participation, to the extent of such other Bank's
Percentage, in (i) the Letter of Credit and any payments and
Advances made by CIBC with respect thereto, (ii) the lien on and
security interest in the Collateral as provided in the Custodian
Agreement, (iii) all liabilities (other than liabilities arising
from CIBC's gross negligence or wilful misconduct) and
obligations of CIBC arising in connection with the Letter of
Credit and any such payments or Advances, and (iv) the Company's
reimbursement obligations with respect to any payments, Advances,
or any other obligations to all of the Banks, howsoever
characterized, arising under or in connection with the Letter of
Credit, any Demands thereunder or this Agreement. For the
purpose of this Agreement, the unparticipated portion of the
Letter of Credit, any payments and Advances made with respect
thereto, all liabilities and obligations of CIBC arising in
connection with the Letter of Credit and any Advances, and the
Company's reimbursement obligations with respect to any payments
and Advances shall be deemed to be CIBC's "participation"
therein. CIBC hereby agrees to deliver to each other Bank, upon
request of such Bank, copies of the Letter of Credit and related
documentation as such other Bank may from time to time reasonably
request.
SECTION 2.03. Commissions and Fees. Without
requirement for notice or demand by CIBC, the Agent or any other
Person:
(a) The Company hereby agrees to pay to CIBC a letter
of credit fronting fee calculated on the Available Amount of the
Letter of Credit, from the date of issuance of the Letter of
Credit until the Termination Date, at the Fronting Fee Rate
applicable from time to time payable quarterly in arrears on the
last day of each March, June, September and December, commencing
on the first such date to occur following the date of issuance of
the Letter of Credit, and on the Termination Date.
(b) The Company hereby agrees to pay to the Agent for
the account of the Banks in accordance with each Bank's
respective Percentage a letter of credit fee calculated on the
Available Amount, from the date of issuance of the Letter of
Credit until the Termination Date, at the Letter of Credit Fee
Rate applicable from time to time payable quarterly in arrears on
the last day of each March, June, September and December,
commencing on the first such date to occur following the date of
issuance of the Letter of Credit, and on the Termination Date.
Each Bank shall be entitled to receive its Percentage of the fees
described in this Section 2.03(b) in immediately available funds
promptly upon receipt by the Agent.
(c) The Company hereby agrees to pay to CIBC drawing
fees in the amount of $100 per drawing for each drawing by the
Trustee under the Letter of Credit, quarterly in arrears on the
last day of each March, June, September and December, commencing
on the first such date to occur following the date of issuance of
the Letter of Credit, and on the Termination Date.
(d) The Company hereby agrees to pay to CIBC, upon
each transfer of the Letter of Credit in accordance with its
terms, a transfer fee equal to $1,000.
(e) If (A) Moody's rating of the Senior Debt is
withdrawn or downgraded to lower than Baa3 or (B) S&P's rating of
the Senior Debt is withdrawn or downgraded to lower than BBB-,
then the Company may cause all obligations of the Company
hereunder (including, without limitation, reimbursement
obligations in respect of the Letter of Credit, Advances,
interest and fees) to be fully secured by a pledge of bonds
issued under the First Mortgage Indenture, on an equal and
ratable basis with all other obligations so secured; provided
that the Agent and the Banks shall release such security provided
by the Company if the Senior Debt is thereafter rated Baa3 or
higher by Moody's and BBB- or higher by S&P.
SECTION 2.04. Reimbursement On Demand. Subject to the
provisions of Section 2.05 hereof, the Company hereby agrees to
pay to the Agent on demand (i) on and after each date on which
CIBC shall pay any amount under the Letter of Credit pursuant to
any Demand thereunder, a sum equal to such amount so paid (which
sum shall constitute a demand loan from CIBC to the Company until
so paid), plus (ii) interest on any amount remaining unpaid by
the Company to the Agent under clause (i) above, at (A) the
Alternate Base Rate in effect from time to time, during the
period from the date CIBC honors such Demand, until two Business
Days after such date of honor, and (B) at the Default Rate in
effect from time to time thereafter until payment of such amount
in full. CIBC shall notify the Company whenever any demand for
payment is made under the Letter of Credit (or any Demand
thereunder) by the Trustee; provided that the failure of CIBC to
so notify the Company shall not affect the rights of CIBC or the
other Banks in any manner whatsoever.
SECTION 2.05. Advances. (a) If CIBC shall make any
payment under the Letter of Credit with respect to the purchase
price of Bonds delivered pursuant to a put and a failed
remarketing of the put Bonds, in accordance with Section 4.02 of
the Indenture and Section 7 of each Bond, and, on the date of
such payment, the conditions set forth in Section 3.03 hereof
shall have been fulfilled, such payment shall constitute an
advance made by CIBC to the Company on the date and in the amount
of such payment (each such advance being an "Advance"). The
Company may, in accordance with Section 2.07, repay the unpaid
principal amount of each Advance on any day and shall repay the
unpaid principal amount of each Advance, unless otherwise prepaid
in accordance with Section 2.07 hereof, on the earlier of (i) the
date that is three months following the date CIBC honors the
related Demand, and (ii) the Stated Termination Date (such
earlier date with respect to any Advance, hereinafter called the
"Maturity Date" for such Advance).
(b) The Company shall pay interest on the unpaid
principal amount of each Advance from the date of such Advance
until such principal amount is paid in full at the applicable
rate or rates as set forth below.
(i) Alternate Base Rate. The Company shall
pay interest on such Advance at all times from the date
such Advance is made until the earlier to occur of (A)
the date of repayment in full of such Advance and (B)
the Maturity Date for such Advance, payable on such
earlier date, at a fluctuating interest rate per annum
in effect from time to time equal to the Alternate Base
Rate in effect from time to time with respect to any
Advance.
(ii) Default Rate. Notwithstanding any
provision to the contrary herein the Company shall pay
interest on all past-due Advances and (to the fullest
extent permitted by law) interest, costs, fees and
expenses hereunder, from the date when such amounts
became due until paid in full, payable on demand, at
the Default Rate in effect from time to time.
SECTION 2.06. Reimbursement Obligations Deemed to be
Loans; Funding by Banks to CIBC. (a) In the event that CIBC makes
any payment or disbursement under the Letter of Credit or any
Demand honored thereunder (including any Advance) and the Company
shall not have reimbursed CIBC in full for such payment or
disbursement on the same Business Day in accordance herewith,
each Bank shall be obligated to pay CIBC in full or partial
payment of the purchase price of its participation in the Letter
of Credit, its pro rata share, according to its Percentage, of
such payment or disbursement (but such obligation of the Banks
shall not diminish the obligation of the Company hereunder), and
the Agent shall promptly notify each other Bank thereof. Each
other Bank irrevocably and unconditionally agrees (subject to
Section 7.06) to pay to the Agent in immediately available funds
for CIBC's account the amount of such other Bank's Percentage of
such payment or disbursement, without setoff, counterclaim,
recoupment or any reduction for any reason. If and to the extent
any Bank shall not have made such amount available to the Agent
by 2:30 p.m., New York time, on the Business Day on which such
Bank receives notice from the Agent of payment or disbursement
(it being understood that such notice received after 12:00 noon,
New York time, on any Business Day shall be deemed to have been
received on the next following Business Day), such Bank agrees to
pay interest on such amount to the Agent for CIBC's account
forthwith on demand for each day from and including the date such
amount was to have been delivered to the Agent to but excluding
the date such amount is paid, at a rate per annum equal to the
Federal Funds Rate. Any Bank's failure to make available to the
Agent its Percentage of any such payment or disbursement shall
not relieve any other Bank of its obligation hereunder to make
available to the Agent such other Bank's Percentage of such
payment, but no Bank shall be responsible for the failure of any
other Bank to make available to the Agent such other Bank's
Percentage of any such payment or disbursement.
(b) Without limitation to the foregoing provisions of this
Section 2.06, if a Bank shall, at any time, fail to make any
payment to the Agent required under Section 2.06(a) (a "Funding
Default"), CIBC may, but shall not be required to, cause the
Agent to retain payments that would otherwise be made to such
Bank hereunder and apply such payments to such Bank's defaulted
obligations hereunder, at such time, and in such order, as CIBC
may elect in its sole discretion. Upon a Funding Default by a
Bank, CIBC shall have the right, but not the obligation, to
terminate and repurchase such Bank's participation in all or, in
its discretion, any portion of the Letter of Credit, for a
purchase price equal to such Bank's proportionate share of the
then unpaid principal balance of the outstanding Advances, if
any, being repurchased, together with interest, fees and other
amounts accrued and owing thereon (reduced by an amount equal to
such Bank's Percentage of any such Advance or portion thereof
with respect to which such Bank has not, as of the time of such
repurchase, reimbursed CIBC in full in accordance with Section
2.06(a) and by the amount of any costs or expenses incurred by
CIBC or the Agent in connection with such Bank's Funding Default
and such repurchase), and terminate such Bank's obligations
hereunder with respect to the repurchased Advances and any
Demands then made under the Letter of Credit with respect to
which CIBC has not made payment as of the time of purchase. Upon
the occurrence and continuance of a Funding Default by a Bank,
the Agent and CIBC shall not be required to obtain the consent of
such Bank to any action as provided in this Section 2.06.
SECTION 2.07. Prepayments; Reinstatement of Letter of
Credit Amounts. (a) The Company may, upon at least one Business
Day's notice to the Agent, prepay the outstanding amount of any
Advance in whole or in part (which prepayment shall be at least
$1,000,000) with accrued interest to the date of such prepayment
on the amount prepaid by making payment to the Agent for the
benefit of the Banks.
(b) Prior to or simultaneously with the receipt of
proceeds related to the resale of Bonds purchased pursuant to one
or more draws under the Letter of Credit by one or more Demands,
the Company shall directly or through the Remarketing Agent on
behalf of the Company, prepay the then outstanding Advances (in
the order in which they were made) by paying to the Agent for the
benefit of the Banks an amount equal to the sum of (i) the
aggregate principal amount of the Bonds resold plus (ii) that
aggregate amount of interest on such Bonds which was paid by such
Demands. Upon the prepayment of such Advances, the Company
irrevocably authorizes CIBC to reinstate the related portion of
the Letter of Credit Amount in accordance with Section 7(b) of
the Letter of Credit.
SECTION 2.08. Increased Costs. If either (i) the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements)
in or in the interpretation of any law or regulation or (ii) the
compliance by CIBC or any of the other Banks with any guideline,
requirement or request from any central bank or other
governmental or quasi-governmental authority (whether or not
having the force of law), shall either (A) impose, modify or deem
applicable any reserve, assessment, special deposit or similar
requirement against letters of credit issued by, or assets held
by, or deposits in or for the account of, CIBC or any of the
other Banks or (B) impose on CIBC or any of the other Banks any
other condition regarding this Agreement, the Letter of Credit or
any Advance, and the result of any event referred to in clause
(A) or (B) above, shall be to increase the cost to any of the
Banks of issuing or maintaining the Letter of Credit or agreeing
to make or making, funding or maintaining any Advance (which
increase in cost shall be determined by such Bank's reasonable
allocation of the aggregate of such cost increases resulting from
such event), then, upon demand by the Agent (which demand shall
be made at the direction of any of the Banks affected), the
Company shall pay to the Agent for the benefit of the Banks
affected, from time to time as specified by the Agent, additional
amounts which shall be sufficient to compensate such Banks for
such increased cost (it being understood and agreed that no such
compensation shall be payable in respect of any such increased
cost incurred by a Bank more than 180 days prior to the date such
Bank gave such direction to the Agent). A certificate setting
forth such increased cost incurred by the Banks as a result of
any event referred to in clause (i) or (ii) above, and giving a
reasonable explanation thereof, submitted by the Agent, on behalf
of and at the direction of the Banks affected, to the Company,
shall constitute such demand and shall, in the absence of
manifest error, be conclusive and binding for all purposes.
SECTION 2.09. Increased Capital. If either (i) the
introduction of or any change in or in the interpretation of any
law or regulation or (ii) compliance by any of the Banks with 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 Bank or any corporation controlling such Bank
and such Bank determines that the amount of such capital is
increased by or based upon the existence of letters of credit (or
similar contingent obligations) then, the Company shall
immediately pay to the Agent for the benefit of the Banks
affected, from time to time as specified by the Agent at the
direction of such Banks, additional amounts sufficient to
compensate such Banks in the light of such circumstances, to the
extent that such Banks reasonably determined such capital to be
allocable to the issuance or maintenance of the Letter of Credit
(or participation therein) (it being understood and agreed that
no such additional amounts shall be payable to any Bank in
respect of any period more than 180 days prior to the date such
Bank gave such direction to the Agent). A certificate as to such
amounts submitted to the Company by the Agent on behalf of and at
the direction of the Banks affected, giving a reasonable
explanation thereof, shall constitute such demand and shall, in
the absence of manifest error, be conclusive and binding for all
purposes as to the amount thereof.
SECTION 2.10. Taxes. All payments by the Company of
principal of, and interest on, its reimbursement obligations
hereunder, the Advances and all other amounts payable hereunder
shall be made free and clear of and without deduction for any
present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but excluding
franchise taxes and taxes imposed on or measured by any Bank's
net income or receipts (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from
any payment to be made by the Company hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Company will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt
or other documentation satisfactory to the Agent evidencing
such payment to such authority; and
(c) pay to the Agent for the account of the Banks such
additional amount or amounts as is necessary to ensure that
the net amount actually received by each Bank will equal the
full amount such Bank would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Agent or
any Bank with respect to any payment received by the Agent or
such Bank hereunder, the Agent or such Bank may pay such Taxes
and the Company will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary
in order that the net amount received by such person after the
payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for
the account of the respective Banks, the required receipts or
other required documentary evidence, the Company shall indemnify
the Banks for any incremental Taxes, interest or penalties that
may become payable by any Bank as a result of any such failure.
For purposes of this Section 2.10, a distribution hereunder by
the Agent or any Bank to or for the account of any Bank shall be
deemed a payment by the Company
Upon the request of the Company or the Agent, each Bank
that is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments
hereunder, execute and deliver to the Company and the Agent, on
or about the first scheduled payment date in each fiscal year,
one or more (as the Company or the Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001
or such other forms or documents (or successor forms or
documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Bank is
exempt from withholding or deduction of Taxes.
SECTION 2.11. Payments and Computations. The Company
shall make each payment hereunder not later than 12:00 noon (New
York time) on the day when due in lawful money of the United
States of America to CIBC or the Agent, as appropriate, at its
address referred to in Section 7.02 in same-day funds. Any
amounts due to the Banks hereunder in respect of any such payment
received from the Company shall be paid by the Agent to the Banks
in lawful money of the United States of America at their
respective addresses, as provided in Section 7.02, in same-day
funds by the close of the Business Day on which such payment is
received. If and to the extent any such amount due to any Bank
is not paid by the Agent in a timely fashion as aforesaid, the
Agent agrees to pay interest on such unpaid amount for such
Bank's account forthwith on demand for each day from and
including the date such amount was to have been paid to such Bank
to but excluding the date such amount is paid, at a rate per
annum equal to the Federal Funds Rate. Computations of the Prime
Rate shall be made by the Agent on the basis of a year of 365 or
366 days, as the case may be, for the actual number of days
(including the first day but excluding the last day) elapsed.
Computations of the Federal Funds Rate and the commissions and
fees under Section 2.03 hereof shall be made by the Agent on the
basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) elapsed.
SECTION 2.12. Non-Business Days. Whenever any payment
to be made hereunder shall be stated to be due, or whenever the
last day of any Interest Period would otherwise occur, on a day
which is not a Business Day, such payment shall be made, and the
last day of such Interest Period shall occur, on the next
succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, fee
or commission, as the case may be.
SECTION 2.13. Extension of the Stated Termination
Date. Unless the Letter of Credit shall have expired in
accordance with its terms on the Termination Date, at least 60
but not more than 120 days before each February 25, commencing
February 25, 1998, the Company may request the Agent in writing
(each such request being irrevocable) to extend for one year the
Stated Termination Date. If the Company shall make such a
request, the Agent shall, no later than 30 days following the
date on which the Agent shall have received such request, notify
the Company in writing whether or not the Banks consent to such
request (such consent requiring unanimous written approval of the
Banks in their individual sole discretion) and, if all of the
Banks do so consent, the conditions of such consent (including
conditions relating to legal documentation and the consent of the
Trustee). If the Agent shall not so notify the Company, the
Banks shall be deemed not to have consented to such request.
SECTION 2.14. Evidence of Debt. CIBC and, as
appropriate, each other Bank shall maintain, in accordance with
its usual practice evidence of the indebtedness of the Company
resulting from each drawing under the Letter of Credit and from
each Advance made from time to time hereunder and the amounts of
principal and interest payable and paid from time to time
hereunder. In any legal action or proceeding in respect of this
Agreement, the entries made shall, in the absence of manifest
error, be conclusive evidence of the existence and amounts of the
obligations of the Company therein recorded.
SECTION 2.15. Obligations Absolute. The payment
obligations of the Company under this Agreement shall be
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability
of the Letter of Credit, the Bonds, the Indenture, any
Financing Agreement, the Custodian Agreement, or the
Remarketing Agreement (collectively, the "Related
Documents"), or any other agreement or instrument
relating thereto;
(ii) any amendment or waiver of or any
consent to departure from all or any of the Related
Documents;
(iii) the existence of any claim, set-off,
defense or other right which the Company may have at
any time against the Trustee or any other beneficiary,
or any transferee, of the Letter of Credit (or any
persons or entities for whom the Trustee, any such
beneficiary or any such transferee may be acting), any
Bank, or any other person or entity, whether in
connection with this Agreement, the transactions
contemplated herein or in the Related Documents, or any
unrelated transaction;
(iv) any statement or any other document
presented under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by CIBC under the Letter of
Credit against presentation of a draft or certificate
which does not comply with the terms of the Letter of
Credit; or
(vi) any other circumstance or happening
whatsoever, whether or not similar to any of the
foregoing.
Nothing in this Section 2.15 is intended to limit any liability
of CIBC pursuant to Section 7.06 in respect of its wilful
misconduct or gross negligence.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Condition Precedent to Issuance of the
Letter of Credit. The obligation of CIBC to issue the Letter of
Credit is subject to the condition precedent that the Agent and
each of the Banks shall have received on or before the date of
the issuance of the Letter of Credit the following, each in form
and substance and dated a date satisfactory to the Agent and the
Banks:
(a) An executed copy of the Custodian Agreement.
(b) Executed copies (or duplicate copies thereof, in
each case certified in a manner satisfactory to the Agent
and the Banks to be a true, correct and complete copy) of
the Indenture, the Financing Agreements and the Remarketing
Agreement.
(c) Certified copies of the Certificate of
Incorporation, and resolutions of the Board of Directors of
the Company authorizing this Agreement and all of the
Related Documents to which the Company is a party and the
transactions contemplated hereby and thereby, and of all
other documents evidencing any other necessary corporate
action.
(d) Originals (or duplicate copies certified in a
manner satisfactory to the Agent and the Banks to be true,
correct and complete copies) of all governmental actions and
regulatory approvals (including, without limitation,
approvals or orders of the Issuer and the Federal Energy
Regulatory Commission) necessary for the Company with
respect to this Agreement and each of the Related Documents
to which the Company is a party and the transactions
contemplated hereby and thereby.
(e) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign
this Agreement and the other documents to be delivered by it
hereunder.
(f) An opinion of Laurence M. Hamric, counsel to the
Company, and an opinion of Reid & Priest LLP, special New
York counsel to the Company (collectively in substantially
the form of Exhibit C hereto) and as to such other matters
as the Banks may reasonably request.
(g) A copy of the signature book or authorizing
resolution of the Trustee showing the names of the persons
authorized to execute Demands or other documents or
instruments under or in connection with the Letter of Credit
on behalf of the Trustee.
SECTION 3.02. Additional Conditions Precedent to
Issuance of the Letter of Credit. The obligation of CIBC to
issue the Letter of Credit shall be subject to the further
conditions precedent that on the date of the issuance of the
Letter of Credit:
(a) the following statements shall be true, and the
Company hereby represents and warrants to the Agent, the
Banks and CIBC that:
(i) The representations and warranties
contained in Section 4.01 of this Agreement are true
and correct on and as of the date of issuance of the
Letter of Credit as though made on and as of such date;
and
(ii) No event has occurred and is
continuing, or would result from the issuance of the
Letter of Credit, which constitutes 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
(b) the Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably
request.
SECTION 3.03. Condition Precedent to Each Advance.
The obligation of CIBC to make each Advance shall be subject to
the condition precedent that, on the date of such Advance, the
following statements shall be true:
(a) The representations and warranties contained in
Section 4.01 of this Agreement are true and correct on and
as of the date of such Advance as though made on and as of
such date; and
(b) No event has occurred and is continuing, or would
result from such Advance, which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
Unless the Company or any Bank shall have previously advised the
Agent in writing that one or more of the statements contained in
clauses (a) and (b) above is no longer true, the Company shall be
deemed to have represented and warranted, on the date of any
Advance made by CIBC hereunder, that on the date of such Advance
the above statements are true.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Company. In order to induce CIBC to issue, and the other Banks
to purchase a participation in, the Letter of Credit, the Company
hereby represents and warrants to the Banks as of (i) the date
hereof, (ii) the date of the issuance of the Letter of Credit,
and (iii) the date of any Advance, as follows:
(a) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Texas and is duly qualified to do business in, and
is in good standing under the laws of, the State of
Louisiana. The Company is in compliance, in all material
respects, with all applicable laws, rules, regulations and
orders the non-compliance with which could reasonably be
expected to have a material adverse effect on the financial
condition or operations of the Company or its ability to
perform its obligations hereunder or in connection herewith.
(b) The execution, delivery and performance by the
Company of this Agreement and the Related Documents to which
it is a party are within the Company's corporate powers,
have been duly authorized by all necessary corporate action,
and do not contravene (i) the Company's charter or code of
regulations or (ii) law (including, without limitation, any
order, rule or regulation of the Federal Energy Regulatory
Commission) or any contractual restriction binding on or
affecting the Company, and do not result in or require the
creation of any lien, security interest or other charge or
encumbrance (except as may be created under the Related
Documents) upon or with respect to any of 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 Company of this Agreement or
any Related Document to which the Company is a party except
for the order of the Federal Energy Regulatory Commission in
Docket No. ES 83-52-000 and the resolutions of the Police
Jury of the Parish of West Feliciana, State of Louisiana,
which have been duly obtained, are final and in full force
and effect and are not the subject of appeal or
reconsideration or other review.
(d) This Agreement is, and the Related Documents to
which it is a party when delivered hereunder will be, legal,
valid and binding obligations of the Company enforceable against
the Company in accordance with their respective terms.
(e) The Bonds have been duly authorized, authenticated
and issued and delivered, and are the legal, valid and
binding obligations of the Company, and are not in default.
(f) The consolidated balance sheets (including the
notes thereto) of the Company and its Subsidiaries as at
December 31, 1994 and the related statements of income and
retained earnings and statements of cash flows (including
the notes thereto) of the Company and its Subsidiaries for
the fiscal year then ended, certified by Coopers & Lybrand,
independent public accountants, and the Company's Report on
Form 10-Q for the quarter ended September 30, 1995, as filed
with the Securities and Exchange Commission, copies of which
have been furnished to the Agent, fairly present the
financial condition of the Company and its Subsidiaries as
at such dates and the results of the operations of the
Company and its Subsidiaries for the fiscal year then ended
and through September 30, 1995, all in accordance with
generally accepted accounting principles consistently
applied, except, in the case of all such statements, as
noted in the report of the independent public accountants;
and since September 30, 1995 there has been no material
adverse change in the financial condition, business,
properties, operations or prospects of the Company.
(g) Except as disclosed in the Company's Report on
Form 10-K for the year ended December 31, 1994, the
Company's Reports on Form 10-Q for the quarters ended March
31, 1995, June 30, 1995, and September 30, 1995, and the
Company's Reports on Form 8-K dated July 26, 1995 and
October 25, 1995, as filed with the Securities and Exchange
Commission, there is no pending or (to the best knowledge of
the Company after due inquiry) threatened action, investiga
tion or proceeding before any court, governmental agency or
arbitrator against or affecting the Company or any of its
Subsidiaries which may materially adversely affect the
financial condition, business, properties, operations or
prospects of the Company or the ability of the Company to
perform its obligations hereunder or under any of the
Related Documents or which purports to affect the legality,
validity or enforceability of this Agreement or any Related
Document.
(h) No Termination Event has occurred nor is
reasonably expected to occur with respect to any Plan, and
no contribution failure has occurred with respect to any
Plan sufficient to give rise to a lien under Section 302(f)
of ERISA.
(i) Neither the Company nor any of its Affiliates has
incurred nor reasonably expects to incur any withdrawal
liability under ERISA to any Multiemployer Plan. No
condition exists or event or transaction has occurred with
respect to any Plan which could result in the incurrence by
the Company of any material liability, fine or penalty. The
Company has no contingent liability with respect to any post-
retirement benefit under a welfare plan as defined in
Section 3(1) of ERISA, other than liability for continuation
coverage described in Part 6 of subtitle B of title I of
ERISA.
(j) The Company and each Subsidiary thereof have filed
all tax returns (Federal, state and local) required to be
filed and paid all taxes shown thereon to be due, including
interest and penalties, or provided adequate reserves for
payment thereof other than such taxes that the Company or a
Subsidiary is contesting in good faith by appropriate legal
proceedings.
(k) Payment of principal and interest on Advances and
other obligations of the Company under or in connection with
this Agreement and under the Letter of Credit now rank, and
shall at all times rank, at least pari passu with the
Company's general unsecured obligations, including, without
limitation, the Company's obligations in respect of all of
the Company's other unsecured indebtedness.
(l) Except as otherwise disclosed to the Agent by the
Company in writing or as disclosed in the publicly available
reports filed by the Company with the Securities and
Exchange Commission, in each case, prior to the date hereof,
the Company and its Subsidiaries have no liabilities under
environmental laws that in the aggregate could reasonably be
expected to have a material adverse effect on the financial
condition or operations of the Company or the ability of the
Company to perform its obligations hereunder or in
connection herewith.
(m) All information furnished by the Company to the
Agent and the Banks for purposes of or in connection with
this Agreement and the transactions contemplated hereby is
true and accurate in every material respect on the date as
of which such information is dated or certified, and none of
such information is incomplete by omitting to state any
material fact necessary to make such information not
misleading in light of the circumstances in which such
information was provided.
(n) The Company is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Advances will be used
for a purpose which violates, or would be inconsistent with,
Regulation G, U or X of the Board of Governors of the
Federal Reserve. Terms for which meanings are provided in
said Regulation G, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this
Section 4.01(o) with such meanings.
(o) The Company has no subsidiaries other than Varibus
Corporation, Prudential Drilling Company, GSG&T, Inc. and
Southern Gulf Railway Company, and the Company owns 100% of
the voting stock of all of the subsidiaries, free of all
liens, charges, security interests and rights of other
parties whatsoever. None of such subsidiaries, individually
or in the aggregate, constitutes a Significant Subsidiary.
(p) The Company lawfully owns and is possessed of its
property and assets, including those reflected on the
audited balance sheet of the Company as of December 31,
1994, except, in the case of property and assets therein
reflected, such as have been disposed of by the Company
subsequent to the date thereof in the ordinary course of
business; and the Company has good and lawful title to, or a
valid leasehold interest in, all such property and assets
(other than any so disposed of), subject only to the First
Mortgage Indenture, and to minor defects and irregularities
customarily found in properties of like size and character,
which do not materially impair the use or marketability of
the property or asset affected thereby in the operation of
the business of the Company.
(q) None of the Company, any Subsidiary, Entergy
Corporation or any Person controlling the Company or Entergy
Corporation is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as a
drawing is available under the Letter of Credit (or the Banks
shall have any other obligation to the Company thereunder) or the
Banks shall have any Commitment hereunder or the Company shall
have any obligation to pay any amount to the Banks hereunder, the
Company will, unless the Agent (with the consent of the Majority
Banks) shall otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc. Without
limiting the rights of the Company under Section 5.02(d),
preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights
(charter and statutory), and franchises, and its
qualification to do business in Louisiana and Texas;
provided, however, that the Company or any such Subsidiary
shall not be required to maintain any right or franchise,
and any Subsidiary shall not be required to preserve or
maintain its corporate existence, if the Board of Directors
of the Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct
of the business of the Company or such Subsidiary, as the
case may be, and that the loss thereof is not
disadvantageous in any material respect to the Company.
(b) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects with
all applicable laws, rules, regulations and orders
(including, without limitation, applicable environmental
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 upon its property; provided, however,
that any such non-compliance which will not have a material
adverse effect on the financial condition or operations of
the Company or its ability to perform its obligations shall
not constitute a breach of this subsection (b).
(c) Visitation Rights. At any reasonable time and
from time to time, permit the Agent or any agents or
representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and
visit the properties of, the Company and any of its
Subsidiaries which the Agent determines in good faith to be
relevant to the interests of the Banks hereunder, and to
discuss the affairs, finances and accounts of the Company
and any of its Subsidiaries with any of their respective
officers or directors; provided, however, that the Company
reserves the right to restrict access to any of its
facilities in accordance with reasonably adopted procedures
relating to safety and security. The Agent agrees to use
reasonable efforts to ensure that any information concerning
the Company or any of its Subsidiaries obtained by the Agent
pursuant to this Section 5.01(c) which is not contained in a
report or other document filed with the Securities and
Exchange Commission, distributed by the Company to its
security holders or otherwise generally available to the
public, will, to the extent permitted by law and except as
may be required by valid subpoena or in the normal course of
the Agent's business operations relating to this Agreement,
be treated confidentially by the Agent and will not be
distributed or otherwise made available by the Agent to any
person other than, for the sole purpose of administering
this Agreement, the Agent's employees and the Banks,
authorized agents and representatives and any assignee or
purchaser of any Bank's rights and benefits under this
Agreement, each of whom shall be bound by this obligation of
confidentiality.
(d) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in
which appropriate entries shall be made of all financial
transactions and the assets and business of the Company and
each of its Subsidiaries in accordance with generally
accepted accounting principles.
(e) Reporting Requirements. Furnish to the Agent and
each of the Banks the following:
(i) as soon as possible and in any event
within five Business Days after the occurrence of each
Event of Default and each event which, with the giving
of notice, lapse of time, or both, would constitute any
such Event of Default, the statement of an authorized
officer of the Company (which statement also shall be
simultaneously furnished to the Trustee) setting forth
details of such Event of Default or event and the
action which the Company has taken and proposes to take
with respect thereto;
(ii) as soon as available and in any event
within 60 days after the close of each of the first
three quarters in each fiscal year of the Company, (A)
a copy of the Company's Form 10-Q for the quarter then
ended, or (B) an unaudited consolidated balance sheet
of the Company and its Subsidiaries as of the end of
such quarter and consolidated statements of income and
of summary changes in financial position of the Company
and its Subsidiaries for the quarter then ended, fairly
presenting the financial condition of the Company and
its Subsidiaries as at such date and the results of
operations and summary changes in the financial
position of the Company and its Subsidiaries for such
period and setting forth in each case in comparative
form the corresponding figures for the corresponding
period of the preceding fiscal year, all in reasonable
detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer, treasurer,
assistant treasurer, comptroller or corporate secretary
of the Company as having been prepared in accordance
with generally accepted accounting principles
consistently applied, except as stated therein or in
the certificate referred to above;
(iii) (A) as soon as available and in any
event within 105 days after the end of each fiscal year
of the Company, (1) a copy of the Company's Form 10-K
for such fiscal year, or (2) a copy of the annual
report for such year for the Company and its
Subsidiaries, containing financial statements for such
year and an audit report (without material
qualification as to the scope of or manner of
performing such audit), in each case, prepared in
accordance with generally accepted auditing standards
by independent public accountants of recognized
national standing selected by the Company, and (B) a
certificate of the chief financial officer, treasurer,
assistant treasurer, comptroller or corporate secretary
of the Company stating whether he has any knowledge of
the occurrence at any time prior to the date of such
certificate of any Event of Default not theretofore
reported pursuant to the provisions of paragraph (i) of
this subsection (e) or of the occurrence at any time
prior to such date of any such event, except events
theretofore reported pursuant to the provisions of
paragraph (i) of this subsection (e) and remedied,
which with notice or lapse of time or both would
constitute an Event of Default and, if so, setting
forth the details of such Event of Default or event;
(iv) promptly after the sending or filing
thereof, copies of all other reports which the Company
or any Subsidiary files with the Securities and
Exchange Commission under the Securities Exchange Act
of 1934, as amended, or any regulations thereunder, or
with any national securities exchange;
(v) as soon as possible and in any event (i)
within 30 days after the Company or any Affiliate knows
or has reason to know that any Termination Event
described in clause (i) of the definition of
Termination Event with respect to any Plan has occurred
and (ii) within 10 days after the Company or any
Affiliate knows or has reason to know that any other
Termination Event with respect to any Plan, a statement
of the chief financial officer of the Company
describing such Termination Event and the action, if
any, which the Company or such Affiliate proposes to
take with respect thereto;
(vi) promptly and in any event within two
Business Days after receipt thereof by the Company or
any Affiliate from the PBGC, copies of each notice
received by the Company or any such Affiliate of the
PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(vii) if and for so long as the Company or
any Affiliate shall incur, or expect to incur, any
liability under a Multiemployer Plan, promptly and in
any event within five Business Days after receipt
thereof by the Company or any Affiliate from a
Multiemployer Plan sponsor, a copy of each notice
received by the Company or any Affiliate concerning (A)
the imposition of withdrawal liability by a
Multiemployer Plan pursuant to Section 4202 of ERISA,
(B) the determination that a Multiemployer Plan is, or
is expected to be, in reorganization within the meaning
of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of
ERISA, or (D) the amount of liability incurred, or
expected to be incurred, by the Company or any
Affiliate in connection with any event described in
clause (A), (B) or (C), above;
(viii) promptly after the Company knows or
has reason to know of (i) any pending or threatened
action, investigation or proceeding of the type
described in Section 4.01(g) which could reasonably be
expected to have a material adverse effect of the type
described therein, (ii) any claim, complaint or notice
of the type described in Section 4.01(m) regarding
potential material liability or respecting alleged
violations which could reasonably be expected to give
rise to such potential material liability, as described
therein, (iii) any material adverse change in the
financial condition, business, properties, operations
or prospects of the Company, or (iv) any amendment,
supplement or other modification to the Indenture to
which the Agent is not a party, or any consent, waiver
or release with respect to the Indenture to which the
Agent is not a party, the statement of an authorized
officer of the Company describing the foregoing and the
action, if any, which the Company proposes to take with
respect thereto; and
(ix) such other information respecting the
condition or operations, financial or otherwise, of the
Company or any of its Subsidiaries as the Agent may
from time to time reasonably request.
(f) Redemption or Defeasance of Bonds. Use its best
efforts to cause the Trustee, upon redemption or defeasance
of less than all of the Bonds pursuant to the Indenture, to
furnish to the Agent a notice in the form of Exhibit 4 to
the Letter of Credit, and, upon a redemption or defeasance
of all of the Bonds pursuant to the Indenture, to surrender
the Letter of Credit to CIBC for cancellation.
(g) Registration of Bonds. Cause all Bonds which it
acquires, or which it has had acquired for its account, to
be registered forthwith in accordance with the Indenture and
the Custodian Agreement in the name of the Company or its
nominee.
(h) Maintenance of Insurance. Maintain insurance with
reputable insurers covering all such properties and risks
and in such amounts, including self insurance and retainage
arrangements, as is usually carried by companies engaged in
similar businesses, similarly situated and owning similar
properties.
SECTION 5.02. Negative Covenants. So long as a
drawing is available under the Letter of Credit (or the Banks
shall have any other obligations to the Company thereunder) or
any of the Banks shall have any Commitment hereunder or the
Company shall have any obligation to pay any amount to any of the
Banks hereunder, the Company will not, without the written
consent of the Agent (with the consent of the Majority Banks):
(a) Amendment of Any Related Document. Enter into or
consent to any amendment or modification of any Related
Document which would affect the rights of the Agent or any
Bank or would adversely affect the Agent or any Bank.
(b) Compliance with ERISA. (i) Enter into any
prohibited transaction (as defined in Section 4975 of the
Internal Revenue Code of 1986, as amended, and in ERISA)
involving any Plan which may result in any liability of the
Company to any Person which (in the reasonable opinion of
the Agent) is material to the financial position or
operations of the Company or (ii) allow or suffer to exist
any other event or condition known to the Company which
results in any liability of the Company to the PBGC which
(in the reasonable opinion of the Agent) is material to the
financial position or operations of the Company. For
purposes of this Section 5.02(b), "liability" shall not
include termination insurance premiums payable under Section
4007 of ERISA.
(c) Sales, Etc., of Assets. (i) Sell, lease,
transfer, enter into any sale and leaseback agreement
involving or otherwise dispose of or permit any of its
Significant Subsidiaries to sell, lease, transfer, enter
into any sale and leaseback agreement involving or otherwise
dispose of (whether in one transaction or in a series of
transactions) in the aggregate more than 10% (determined at
the time of each such sale, lease, transfer, agreement or
disposition) of the aggregate Fixed Assets; or (ii)
liquidate or permit any of its Significant Subsidiaries to
liquidate its business and assets.
(d) Mergers, Etc. Merge with or into or consolidate
with or into any other corporation or entity, or permit any
of its Subsidiaries to do so unless (i) immediately after
giving effect thereto, no event shall occur and be
continuing which constitutes an Event of Default, (ii) the
consolidation or merger shall not materially and adversely
affect the ability of the Company to perform its obligations
hereunder or under any of the Related Documents, and (iii)
in the case of any merger or consolidation to which the
Company is a party, the Company shall be the surviving
corporation in any such consolidation or merger, or such
surviving corporation shall be duly authorized by all
applicable governmental authorities to conduct business as a
public utility in the States of Louisiana and Texas and
shall acknowledge and assume the Company's continuing
obligations under this Agreement in a writing satisfactory
in form and substance to the Agent.
(e) Restrictive Agreements. Enter into any agreement
(excluding this Agreement or any other Related Document) (i)
restricting the ability of the Company to amend or otherwise
modify this Agreement, the Letter of Credit, the Custodian
Agreement, or any other document in connection therewith; or
(ii) restricting the ability of any Subsidiary to make any
payments, directly or indirectly, to the Company by way of
dividends, advances, repayments of loans or advances,
reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments, or
any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly
or indirectly, to the Company.
(f) Incurrence of Indebtedness. Create or permit to
exist any mortgage, lien, pledge, charge or other
encumbrance on or against or any security interest in any
property or assets of the Company now or hereafter owned by
it in order to secure indebtedness incurred or to be
incurred under commercial bank, revolving credit or term
loan facilities (including, without limitation, reim
bursement agreements relating to letters of credit) having a
maturity of one year or more which are established by the
Company pursuant to agreements executed subsequent to the
date of this Agreement (excluding indebtedness secured by
(A) accounts receivable, (B) nuclear fuel or other fuel
supplies utilized by the Company, or (C) indebtedness
incurred for the purpose of financing all or any part of the
purchase price of any asset acquired by the Company,
provided that any such lien does not exceed the fair market
value of such asset at the time of its acquisition by the
Company and is limited to the asset so acquired), unless in
each such instance the obligations of the Company under this
Agreement shall be equally and ratably secured with such
indebtedness.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. The occurrence of
any of the following events shall be an "Event of Default"
hereunder:
(a) The Company shall fail to pay any amount payable
under Section 2.04 hereof within two (2) Business Days after
such amount becomes due or shall fail to pay any amount
payable under any other provision of Article II when due; or
(b) Any representation or warranty made, or deemed
made, by the Company herein or by the Company (or any of its
officers) in connection with this Agreement or any of the
Related Documents shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) The Company shall fail to perform or observe any
term, covenant or agreement contained in this Agreement or
any material term, covenant or agreement contained in any of
the Related Documents on its part to be performed or
observed (other than a term, covenant or agreement referred
to in Section 6.01(a) or (b)) and, in any such case, such
failure shall continue for 30 days after written notice
thereof from the Agent or any Bank (with concurrent notice
to the Agent) to the Company; the Company shall seek to
invalidate the Custodian Agreement or any lien or security
interest created thereby; or the Custodian Agreement shall
at any time fail to provide the Agent with a perfected
security interest in the Bonds as contemplated by the terms
thereof; or
(d) The Company or any of its Subsidiaries shall fail
to pay any Debt having a principal amount of $20,000,000 or
more (excluding Debt under this Agreement or under the
Bonds) of the Company or such Subsidiary (as the case may
be), when due (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 any other default under any agreement or
instrument relating to any such Debt, or any other event,
shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument,
if the effect of such default or event is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or
as a consequence of any such default, any such Debt shall be
declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof; or
(e) Entergy Corporation, the Company or any of the
Company's Significant Subsidiaries 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 Entergy
Corporation, the Company or any of the Company's Significant
Subsidiaries 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, or other similar
official for it or for any substantial part of its property;
or Entergy Corporation, the Company or any of the Company's
Significant Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this
subsection (e); or
(f) A judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Company
or any of its Subsidiaries 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
30 consecutive 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) Any provision of this Agreement or any material
provision of any Related Document to which the Company is a
party shall at any time for any reason cease to be valid and
binding on the Company, or shall be declared to be null and
void, or the validity or enforceability thereof shall be
denied or contested by the Company, or a proceeding shall be
commenced by any governmental agency or authority having
jurisdiction over the Company seeking to establish the
invalidity or unenforceability thereof and the Company shall
fail diligently or successfully to defend such proceeding;
or
(h) Any "Event of Default" under and as defined in any
Financing Agreement or the Indenture shall have occurred and
be continuing; or
(i) Any Termination Event with respect to a Plan shall
have occurred, and, 30 days after notice thereof shall have
been given to the Company by the Agent or any Bank (with
concurrent notice to the Agent), (i) such Termination Event
(if correctable) shall not have been corrected and (ii) the
then present value of such Plan's vested benefits exceeds
the then current value of assets accumulated in such Plan by
more than the amount of $10,000,000 (or in the case of a
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); or
(j) The Company or any of its Affiliates as employer
under a Multiemployer Plan shall have made a complete or
partial withdrawal from such Multiemployer Plan and the plan
sponsor of such Multiemployer Plan shall have notified such
withdrawing employer that such employer has incurred a
withdrawal liability in an annual amount exceeding
$10,000,000;
(k) Any order of the Federal Energy Regulatory
Commission or any approval or order of any other
governmental body, public board, or public body related to
the Related Documents shall be modified, rescinded, revoked
or set aside or otherwise cease to remain in full force and
effect or any action shall be taken by any governmental
body, public board, or public body which adversely affects
the ability of the Company to perform its obligations
hereunder or in respect hereof; or
(l) Entergy Corporation shall fail to hold title to
all stock of the Company, free and clear of any mortgage,
lien, pledge, charge or other encumbrance.
SECTION 6.02. Upon an Event of Default. If any Event
of Default, other than an Event of Default described in Section
6.01(e), shall have occurred and be continuing, the Agent may
or, at the direction of the Majority Banks, shall (i) by notice
to the Company, declare the obligation of CIBC to issue the
Letter of Credit and to make Advances hereunder to be terminated,
whereupon the same shall forthwith terminate, (ii) give notice to
the Trustee pursuant to Section 8.01(h) of the Indenture
requesting the Trustee to declare the principal of all Bonds then
outstanding and all interest accrued and unpaid thereon to be due
and payable, (iii) declare the Advances, all interest thereon and
all other amounts payable thereunder or in respect thereof to be
forthwith due and payable, whereupon the Advances, 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 Company, and (iv) in addition to other rights and remedies
provided for herein or in the Custodian Agreement or otherwise
available to it, all the rights and remedies of a secured party
on default under the Uniform Commercial Code in effect in the
State of New York at that time. If any Event of Default
described in Section 6.01(e) shall occur, (i) the Commitment (if
not theretofore terminated) shall automatically terminate, (ii)
the obligation to issue the Letter of Credit (if not theretofore
issued) and make Advances hereunder shall automatically
terminate, and (iii) all Advances and other amounts outstanding,
all interest thereon and all other amounts payable thereunder or
in respect thereof shall automatically be and become immediately
due and payable, in each case, without presentment, demand,
protest or notice of any kind to the Company (or any other
Person), all of which are hereby expressly waived by the Company.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. Subject to the second
and third sentences of Section 7.15 hereof, no amendment or
waiver of any provision of this Agreement, nor consent to any
departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Agent (with the consent of the Majority Banks) and then any such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 7.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telegraphic communication) and mailed, telecopied,
telegraphed or delivered, if to the Company, to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer; if
to the Agent or CIBC, at its address at 425 Lexington Avenue, New
York, New York 10017, Attention: Syndications Department; and
if to any other Bank, at its address set forth on the signature
page hereto; 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, or telegraphed, be effective when deposited in the
mails or sent by telecopy or delivered to the telegraph company,
respectively, addressed as aforesaid, except that notices to CIBC
or the Agent (as the case may be) pursuant to the provisions of
Article II shall not be effective until received by CIBC or the
Agent (as the case may be).
SECTION 7.03. No Waiver; Remedies. No failure on the
part of any Bank or the Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right
hereunder 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 7.04. Right of Set-off; Sharing of Payments.
(a) Upon the occurrence and during the continuance of any Event
of Default, each Bank 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 Bank to or for the credit
or the account of the Company against any and all of the
obligations of the Company now or hereafter existing under this
Agreement, up to its pro rata share thereof, according to the
amount of its Percentage, irrespective of whether or not such
Bank shall have made any demand hereunder and although such
obligations may be contingent or unmatured.
(b) Each Bank agrees promptly to notify the Company
after any such set-off and application referred to in subsection
(a) above; provided that the failure to give such notice shall
not affect the validity of such set-off and application. The
rights of the Banks under this Section are in addition to other
rights and remedies (including, without limitation, other rights
of set-off) which the Banks may have.
(c) If any Bank shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Advance (other than
pursuant to the terms of Sections 2.09 and 2.10) in excess of its
pro rata share of payments then or therewith obtained by all
Banks, such Bank shall purchase from the other Banks such
participations in Advances made by them as shall be necessary to
cause such purchasing Bank to share the excess payment or other
recovery ratably with each of them; provided, however, that if
all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Bank, the purchase
shall be rescinded and each Bank which has sold a participation
to the purchasing Bank shall repay to the purchasing Bank the
purchase price to the ratable extent of such recovery together
with an amount equal to such selling Bank's ratable share
(according to the proportion of
(i) the amount of such selling Bank's
required repayment to the purchasing Bank, to
(ii) the total amount so recovered from the
purchasing Bank)
of any interest or other amount paid or payable by the purchasing
Bank in respect of the total amount so recovered. The Company
agrees that any Bank so purchasing a participation from another
Bank pursuant to this Section 7.04(c) may, to the fullest extent
permitted by law, exercise all its rights of payment (including
pursuant to Section 7.04(a) and (b) with respect to such
participation as fully as if such Bank were the direct creditor
of the Company in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Bank
receives a secured claim in lieu of a setoff to which this
Section applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this
Section to share in the benefits of any recovery on such secured
claim.
SECTION 7.05. Indemnification. The Company hereby
indemnifies and holds the Banks and the Agent harmless from and
against any and all claims, damages, losses, liabilities,
penalties, costs and expenses which any Bank or the Agent may
incur or which may be claimed against any Bank or the Agent by
any Person:
(a) by reason of any inaccuracy or alleged inaccuracy
in any material respect, or any untrue statement or alleged
untrue statement of any material fact, contained in the
Official Statement or any amendment or supplement thereto,
or by reason of the omission or alleged omission to state
therein a material fact necessary to make such statements,
at the time and in the light of the circumstances under
which they were made, not misleading; provided, however,
that, in the case of any action or proceeding alleging an
inaccuracy in a material respect or an untrue statement,
with respect to information supplied by and describing CIBC
in any supplement to the Official Statement (the "CIBC
Information"), or an omission to state therein a material
fact necessary to make the statements in the CIBC
Information, in the light of the circumstances under which
they were made, not misleading, (i) indemnification by the
Company pursuant to this Section 7.05(a) shall be limited to
the costs and expenses of CIBC (including fees and expenses
of CIBC's counsel) of defending itself against such
allegation, (ii) if in any such action or proceeding it is
finally determined that the CIBC Information contained an
inaccuracy in a material respect or an untrue statement of a
material fact or omitted to state therein a material fact
necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading, then the Company shall not be required to
indemnify CIBC pursuant to this Section 7.05(a) for any
claims, damages, losses, liabilities, costs or expenses to
the extent caused by such inaccuracy or untrue statement or
omission, or for any costs and expenses of CIBC (including
the fees and expenses of CIBC's counsel) of defending itself
with respect to such inaccuracy or untrue statement or
omission, and (iii) if any such action or proceeding shall
be settled by CIBC without there being a final determination
to the effect described in the preceding clause (ii), then
the Company shall be required to indemnify CIBC pursuant to
this Section 7.05(a) only if such action or proceeding is
settled with the Company's consent; or
(b) by reason of or in connection with the execution,
delivery or performance of the Bonds, the Indenture, or any
Financing Agreement, or any transaction contemplated by the
Indenture or any Financing Agreement, other than as
specified in subsection (c) below; or
(c) by reason of or in connection with the execution
and delivery or transfer of, or payment or failure to make
payment under, the Letter of Credit or any documents or
instruments in connection therewith; provided, however, that
the Company shall not be required to indemnify any Bank or
the Agent pursuant to this Section 7.05(c) for any claims,
damages, losses, liabilities, costs or expenses to the
extent caused by (i) CIBC's wilful misconduct or gross
negligence in determining whether documents presented under
the Letter of Credit are genuine or comply with the terms of
the Letter of Credit or (ii) CIBC's wilful or grossly
negligent failure to make lawful payment under the Letter of
Credit after the presentation to it by the Trustee or a
successor trustee under the Indenture of a draft and
certificate strictly complying with the terms and conditions
of the Letter of Credit.
Nothing in this Section 7.05 is intended to limit the Company's
obligations contained in Article II. Without prejudice to the
survival of any other obligation of the Company hereunder, the
indemnities and obligations of the Company contained in this
Section 7.05 shall survive the payment in full of amounts payable
pursuant to Article II and the termination of the Letter of
Credit.
SECTION 7.06. Liability of the Banks. The Company
assumes all risks of the acts or omissions of the Trustee and any
other beneficiary or transferee of the Letter of Credit with
respect to its use of the Letter of Credit. Neither the Banks,
the Agent nor any of their respective officers or directors shall
be liable or responsible for: (a) the use which may be made of
the Letter of Credit or any acts or omissions of the Trustee and
any other beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in
any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by CIBC against presentation of documents which do
not comply with the terms of the Letter of Credit, including
failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under the Letter
of Credit, except that the Company shall have a claim against
CIBC, and CIBC shall be liable to the Company, to the extent of
any direct, as opposed to consequential, damages suffered by the
Company which the Company proves were caused by (i) CIBC's wilful
misconduct or gross negligence in determining whether documents
presented under the Letter of Credit are genuine or comply with
the terms of the Letter of Credit or (ii) CIBC's wilful or
grossly negligent failure to make lawful payment under the Letter
of Credit after the presentation to it by the Trustee or a
successor trustee under the Indenture of a draft and certificate
strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing,
CIBC may accept original or facsimile (including telecopy)
certificates presented under the Letter of Credit that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary. In determining whether to pay or to accept any
certificate under the Letter of Credit, CIBC shall have no
obligation to any Bank other than to confirm that any documents
required to be delivered under the Letter of Credit appear to
have been delivered and that they appear to comply on their face
with the requirements of the Letter of Credit. Any action taken
or omitted to be taken by CIBC under or in connection with the
Letter of Credit or any certificate thereunder, if taken or
omitted in the absence of gross negligence or willful misconduct,
shall not impose upon CIBC any liability to any Bank and shall
not reduce or impair the Company's reimbursement obligations
hereunder or the obligation of the Banks pursuant to this
Agreement.
SECTION 7.07. Costs, Expenses and Taxes. The Company
agrees to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery, filing,
recording, and administration of this Agreement, the Custodian
Agreement and any other documents which may be delivered in
connection with this Agreement (including any amendments or
waivers of, or consents to depart from, any provision hereof
executed in accordance herewith at any time or from time to
time), including, without limitation, (A) the reasonable fees and
out-of-pocket expenses of counsel for the Agent and CIBC, and
local counsel who may be retained by said counsel, with respect
thereto and with respect to advising the Agent and CIBC as to
their respective rights and responsibilities under this Agreement
and all costs and expenses (including counsel fees and expenses)
in connection with (i) the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement
and such other documents which may be delivered in connection
with this Agreement or (ii) any action or proceeding relating to
a court order, injunction, or other process or decree restraining
or seeking to restrain CIBC from paying any amount under the
Letter of Credit and (B) all costs and expenses of any Bank
(including fees and expenses of counsel to such Bank) in
connection with enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and such other
documents which may be delivered in connection with this
Agreement. In addition, the Company shall pay any and all stamp
and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of
this Agreement or the Letter of Credit or any such other
documents, and agrees to save the Banks harmless from and against
any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
SECTION 7.08. Binding Effect. This Agreement shall
become effective when it shall have been executed and delivered
by the Company, the Agent and the Banks and thereafter shall be
binding upon and inure to the benefit of the Company, the Agent
and the Banks and their respective successors and assigns, except
that the Company shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Agent. CIBC may assign to one or more banks or
other entities all or any part of, or may grant participations to
one or more banks or other entities in all or any part of, or any
interest (undivided or divided) in, CIBC's rights and benefits
under this Agreement, and to the extent of any such assignment or
participation (unless otherwise stated therein) the assignee or
purchaser of such assignment or participation shall, to the
fullest extent permitted by law, have the same rights and
benefits hereunder as it would have if such assignee were a Bank
hereunder.
SECTION 7.09. Severability. Any provision of this
Agreement which is prohibited, unenforceable or not authorized in
any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition, unenforceability or non-
authorization without invalidating the remaining provisions
hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
SECTION 7.10. Governing Law. THIS AGREEMENT SHALL BE
A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE, AND TO BE PERFORMED, IN THE STATE OF NEW YORK.
ALL OBLIGATIONS OF THE COMPANY AND RIGHTS OF CIBC, THE AGENT AND
THE BANKS EXPRESSED HEREIN SHALL BE IN ADDITION TO AND NOT IN
LIMITATION OF THOSE PROVIDED BY APPLICABLE LAW.
SECTION 7.11. Headings. Section headings in this
Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose.
SECTION 7.12. Subparticipation. Subject to Section
7.08, no Bank's participation may be subdivided or transferred
without the Agent's prior written consent (which consent shall
not be unreasonably withheld); except that each Bank may, with
notice to the Agent and each of the Banks, subdivide or transfer
its participation without consent of the Agent if such
subdivision or transfer is made exclusively with or to a branch
of such Bank located in any State of the United States and
subject to jurisdiction of the state and federal courts therein.
SECTION 7.13. Acknowledgements and Agreements by the
Banks. Each Bank expressly acknowledges and agrees that: (a) it
has received a copy of this Agreement, the Official Statement,
the Indenture, the Financing Agreements and such other documents
in connection with this Agreement and the Letter of Credit as it
has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement; (b) such Bank,
independently and without reliance upon CIBC or the Agent, has
made its own appraisal of the creditworthiness of the Company and
any and all other obligors, has made a commercial banking
decision to purchase its participation and did take such care on
its own behalf as would have been the case if it were a direct
party to the Letter of Credit; (c) neither CIBC nor the Agent has
made or does make any representations or warranties or assumes
any responsibility with respect to the validity, genuineness, due
authorization, execution, delivery, legality, sufficiency,
enforceability or collectibility of any document related to the
Letter of Credit or any Advance (including, without limitation,
this Agreement or any other agreement, security agreement,
guaranty, statement or certificate delivered in connection
therewith) or with respect to the validity, genuineness,
enforceability, collectibility, existence or worth of any
collateral securing the same or guarantees thereof; (d) CIBC and
the Agent assume no responsibility for (i) any statement,
warranty, representation, or certification made in, or in
connection with, any document relative to the Letter of Credit or
Advances, (ii) the filing, recording, or taking of any action
with respect to any document relative to the Letter of Credit or
Advances or any security therefor, or (iii) the financial
condition of the Company or any other obligor with respect to the
Letter of Credit or Advances or the performance or observance by
the Company or any other obligor with respect to the Letter of
Credit or Advances of their obligations; and (e) the sale of the
participation hereunder does not constitute the sale of a
"security" for purposes of the Securities Act of 1933 and the
Securities and Exchange Act of 1934.
SECTION 7.14. Authorization. Each Bank authorizes the
Agent to act on behalf of such Bank to the extent provided herein
or in any Related Document, the Letter of Credit or any other
document or instrument delivered hereunder or in connection
herewith, and to take such other action as may be reasonably
incidental thereto.
SECTION 7.15. Action by the Agent. Each Bank
expressly understands and agrees that (a) the Agent may use its
discretion with respect to exercising or refraining from
exercising any rights which it may have or taking or refraining
from taking any actions it may be entitled to take in connection
with the Letter of Credit, Advances, this Agreement or any other
document related to the Letter of Credit or Advances or any
collateral therefor or any obligor or beneficiary thereunder; and
(b) in exercising such discretion, the Agent will use the same
care to protect the interest of the Banks as it would if the
Agent were the holder of the Banks' interests, and that, so long
as the Agent exercises such care, it shall not be under any
liability to the Banks except in the instance of the Agent's
gross negligence or willful misconduct (without limiting the
foregoing, the Agent may consult with legal counsel, independent
public accountants, and experts selected by it, and will not be
liable for any action that it takes or does not take, in good
faith, in accordance with the advice of such counsel, accountants
or experts, and the Agent may act in reliance on any notice,
consent or other instrument or writing which it believes to be
genuine or to have been presented by a proper Person). Each Bank
further expressly understands and agrees that the Agent may, with
the consent of the Majority Banks, agree to any amendment,
modification, waiver, termination, release or consent with
respect to the Letter of Credit, Advances, this Agreement or any
document (including, without limitation, any security agreement
or guaranty) relative to the Letter of Credit, Advances or this
Agreement or any Related Document, or take, or refrain from
taking, any action with respect thereto, except that the Agent
will not, without the consent of all of the Banks, agree to any
extension of the Letter of Credit (or this Agreement in
connection therewith), reduction of the effective fee rate or
interest rate payable to the Banks in connection with the Letter
of Credit or Advances or other reimbursement obligations under
this Agreement, forgiveness or postponement of any reimbursement
obligation in respect of the Letter of Credit or any principal of
or interest on the Advances payable to the Banks, or any release
of Collateral under the Custodian Agreement. If the Agent
requests the consent of the Banks to an amendment, modification,
waiver, release or consent and any Bank does not respond within
ten (10) days of CIBC's written request, such Bank shall be
deemed not to have given its consent thereto. If a Bank fails to
consent to any amendment, modification, waiver, release or
consent which requires its consent, CIBC shall have the right,
but not the obligation, to terminate and repurchase such Bank's
participation in the Letter of Credit and all Advances or, in its
discretion, in only the Advances under the Letter of Credit
affected by such change, at such time, for a purchase price equal
to the Bank's proportionate share of the then unpaid principal
balance of the outstanding Advances, if any, being repurchased
(reduced by an amount equal to such Bank's Percentage of any such
Advance or portion thereof with respect to which such Bank has
not, as of the time of such repurchase, reimbursed CIBC in full
in accordance with Section 2.07(a)), together with interest, fees
and other amounts accrued with respect thereto, and terminate the
Bank's obligations hereunder with respect to the Letter of Credit
and/or the repurchased Advances, as appropriate.
SECTION 7.16. Indemnification by the Banks. The Agent
shall not be required to do any act hereunder or under any
Related Document, the Letter of Credit, or any other document or
instrument delivered hereunder or in connection herewith or take
any action toward the execution or enforcement of the agency
hereby created, or to prosecute or defend any suit in respect of
this Agreement, the Related Documents, the Letter of Credit, or
any collateral security, or other documents in connection with
the foregoing, unless indemnified to its satisfaction by the
Banks, pro rata, in accordance with their respective Percentages,
against loss, cost, liability, and expense. If any indemnity
furnished to the Agent for any purpose shall, in the opinion of
the Agent, be insufficient or become impaired, the Agent may call
for additional indemnity and not commence or cease to do the acts
indemnified against until such additional indemnity is furnished.
SECTION 7.17. Exculpation of the Agent. Neither the
Agent nor any of its directors, officers, employees or agents
shall (i) be responsible for any recitals, representations or
warranties contained in, or for the execution, validity,
genuineness, effectiveness or enforceability of, this Agreement,
any Related Document, the Letter of Credit, or any other
instrument or document delivered hereunder or in connection
herewith, (ii) be responsible for the validity, genuineness,
Related Document, the Letter of Credit, or any other instrument
or document delivered hereunder or in connection herewith, (ii)
be responsible for the validity, genuineness, perfection,
effectiveness, enforceability, existence, value or enforcement of
any Collateral or other collateral security, (iii) be under any
duty to inquire into or pass upon any of the foregoing matters,
or to make any inquiry concerning the performance by the Company
or any other obligor of its obligations, (iv) be responsible to
verify that any schedule, certificate, statement, report, notice
or other writing which is required to be delivered by the Company
to the Banks has in fact been delivered to the Banks, (v) be
responsible for the content of any schedule, certificate,
statement, report, notice or other writing which is required to
be delivered by the Company to the Banks including, without
limitation, any such writing which in fact is not delivered to
the Banks, or (vi) in any event, be liable as such for any action
taken or omitted by it or them, except, in each case, for its or
their own gross negligence or willful misconduct. The agency
hereby created shall in no way impair or affect any of the rights
and powers of, or impose any duties or obligations upon, the
Agent in its individual capacity.
SECTION 7.18. Knowledge. The Agent shall be entitled
to assume that no Event of Default or event or circumstance that
with notice or lapse of time or both would constitute an Event of
Default exists, absent actual knowledge thereof.
SECTION 7.19. Resignation. The Agent may resign as
such at any time upon at least 30 days' prior notice to the
Company and the Banks. In the event of any such resignation, the
Banks shall as promptly as practicable appoint a successor Agent
with the consent of those Banks whose Percentages in the
aggregate are greater than 50%. After any resignation pursuant
to this Section 7.19, the provisions of this Agreement relating
to indemnification and limitation of the liability of the Agent,
including without limitation Sections 7.13, 7.15, 7.16 and 7.17,
shall inure to the benefit of the retiring Agent as to any
actions taken or omitted to be taken by it while it was Agent
hereunder.
SECTION 7.20. Forum Selected and Consent to
Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY RELATED
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE BANKS OR
THE COMPANY MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE COMPANY HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF
ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
TO THE EXTENT THAT THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE COMPANY HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT
AND THE RELATED DOCUMENTS.
SECTION 7.21. Waiver of Jury Trial. THE AGENT, THE
BANKS AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY RELATED
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE BANKS OR
THE COMPANY. THE COMPANY ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH RELATED DOCUMENT TO WHICH IT IS
A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENT AND THE BANKS ENTERING INTO THIS AGREEMENT AND EACH SUCH
RELATED DOCUMENT.
SECTION 7.22. Usury Not Intended. (a) Anything in
this Agreement to the contrary notwithstanding, the Company shall
never be required to pay unearned interest on any Advance or any
other obligation hereunder and shall never be required to pay
interest on such Advance or obligation at a rate in excess of the
Highest Lawful Rate (as defined below), and if the effective rate
of interest that would otherwise be payable under this Agreement
would exceed the Highest Lawful Rate, or if the holder of such
obligation shall receive any unearned interest or shall receive
monies that are deemed to constitute interest which would
increase the effective rate of interest payable under this
Agreement to a rate in excess of the Highest Lawful Rate, then
(i) the amount of interest that would otherwise be payable under
this Agreement shall be reduced to the amount allowed under
applicable law, and (ii) any unearned interest paid by the
Company or any interest paid by the Company in excess of the
Highest Lawful Rate shall, at the option of the holder of such
obligation, be either refunded to the Company or credited on the
principal of such obligation. It is further agreed that, without
limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received by any Bank under
this Agreement, that are made for the purpose of determining
whether such rate exceeds the Highest Lawful Rate, shall be made,
to the extent permitted by the applicable law (now or hereafter
enacted) governing the Highest Lawful Rate, by (x) characterizing
any nonprincipal payment as an expense, fee or premium rather
than as interest and (y) amortizing, prorating and spreading in
equal parts during the period of the full stated term of the
obligations hereunder all interest at any time contracted for,
charged or received by such Bank in connection therewith. If at
any time the effective rate of interest which would otherwise be
payable under this Agreement or on any principal amount
outstanding hereunder exceeds the Highest Lawful Rate, the rate
of interest to accrue under this Agreement or on such unpaid
principal balance during all such times shall be limited to the
Highest Lawful Rate, but any subsequent reductions in such
interest rate shall not become effective to reduce such interest
rate below the Highest Lawful Rate until the total amount of
interest accrued hereunder or on the unpaid principal balance
equals the total amount of interest which would have accrued if
the total amount of interest had been computed without giving
effect to this Section.
(b) As used in this Section, the term "Highest Lawful Rate"
means as to any obligation hereunder the maximum nonusurious rate
of interest permitted from time to time to be contracted for,
taken, charged or received with respect to such obligation by the
holder of such obligation under applicable law. At all such
times, if any, as Texas law shall establish the Highest Lawful
Rate, the Highest Lawful Rate shall be the "indicated rate
ceiling" (as defined in Chapter One of the Texas Credit Code,
V.T.C.S. Art. 5069-1.04 et seq.) from time to time in effect.
SECTION 7.23. Revolving Credit Statute. If,
notwithstanding Section 7.10, Texas law shall be applied to this
Agreement or the obligations of the Company hereunder, the
Company agrees that, pursuant to Article 15.10(b) of Chapter 15,
Title 79, Revised Civil Statutes of Texas, 1925, as amended, such
Chapter 15 shall not govern or in any manner apply to its
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
duly authorized officers as of the date first above written.
GULF STATES UTILITIES COMPANY
By____________________________
Name:_______________________
Title:______________________
Amount of Percentage of
Commitment Commitment
$20,407,671 100.000% CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
individually and as Agent
By____________________________
Name:_______________________
Title:______________________
<PAGE>
CUSTODIAN AND PLEDGE AGREEMENT
THIS CUSTODIAN AND PLEDGE AGREEMENT (the "Agreement"), dated
as of February 26, 1996, is made by and among GULF STATES
UTILITIES COMPANY (the "Company"), THE BANK OF NEW YORK, as
custodian (such entity, or its successor or assign as custodian,
being the "Custodian") and CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, acting in its capacity as Agent (in such
capacity, "CIBC") for the benefit of certain Banks, pro rata, in
accordance with their respective Percentages pursuant to a Letter
of Credit and Reimbursement Agreement, dated as of February 26,
1996 (the "Reimbursement Agreement"), among the Company, such
Banks and CIBC, individually and as Agent thereunder.
WHEREAS, at the Company's request, the Parish of West
Feliciana, State of Louisiana (the "Issuer") issued, pursuant to
an Indenture of Trust and Pledge, dated as of April 1, 1986 (the
"Indenture"), between The Bank of New York (as successor to
Irving Trust Company) as trustee (such entity, or its successor
as trustee, being the "Trustee") and the Issuer, $20,000,000
aggregate principal amount of Parish of West Feliciana, State of
Louisiana, Multiple Rate Demand Pollution Control Revenue Bonds
(Gulf States Utilities Company Project) Series 1986 (the "Bonds")
to various purchasers, for the purpose stated in the Indenture;
and
WHEREAS, to induce CIBC to issue a letter of credit to
support certain amounts payable on and in respect of the Bonds
(the "Letter of Credit") pursuant to the terms of the
Reimbursement Agreement, the Company proposes to pledge the
Collateral (as hereinafter defined) and to enter into this
Agreement;
NOW, THEREFORE, the Company, the Custodian and CIBC hereby
agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
SECTION I.1. Definitions. For the purposes of this
Agreement, terms defined in the Reimbursement Agreement and used
but not otherwise defined herein have the meanings given them in
the Reimbursement Agreement, and the following terms have the
meanings indicated (such meanings to be equally applicable to
both singular and plural forms of the terms defined):
"Collateral" means each Pledged Bond, all payments of
principal, premium, if any, and interest payable on Pledged
Bonds, all of the Company's rights to receive Pledged Bonds and
amounts payable thereon and all of the Company's right, title and
interest in and to Pledged Bonds and such principal of, premium,
if any, and interest thereon, and all proceeds thereof, as they
may from time to time be delivered to or held, pending payment by
the Custodian, the Remarketing Agent or the Trustee, in money,
securities or collections from or with respect to any or all of
the foregoing.
"Obligations" means (a) all amounts of principal of and
interest on each Advance, (b) all other amounts due to the Agent
and the Banks by or on behalf of the Company under or in respect
of the Reimbursement Agreement and (c) all amounts paid or costs
or expenses (including, without limitation, reasonable attorneys'
fees) incurred by CIBC or any of the Banks in the collection of
any of the foregoing or for the maintenance, preservation,
protection or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or realization upon, the Collateral
or in connection with the enforcement or administration of this
Agreement or the Reimbursement Agreement, in each case
irrespective of whether the obligation to pay any such amount is
direct or indirect, absolute or contingent, joint or several, due
or not due, liquidated or unliquidated, arises by operation of
law or otherwise or is from time to time reduced and thereafter
reincurred. To the extent any payment made with respect to an
Obligation is rescinded or recovered or is otherwise avoided or
must be restored under or by reason of any bankruptcy or
insolvency proceedings of the Company or any other Person or
otherwise, the amount of such payment so rescinded, recovered,
restored or avoided shall again constitute an Obligation, as if
such payment had never been made.
"Pledged Bond" means any Bond held at any time by the
Trustee pursuant to Section 3.08(a)(4) of the Indenture.
"Remarketing Agreement" means the Remarketing Agreement
between the Company and the Remarketing Agent, as the same may be
amended from time to time, and any remarketing agreement between
the Company and a successor Remarketing Agent.
SECTION I.2. Interpretation. The headings of the Articles
and Sections hereof are for convenience of reference only and
shall not limit or affect the meaning or construction of any
provision hereof.
ARTICLE II
SECURITY INTEREST
SECTION II.1. Grant of Security Interest. As security for
the due and punctual payment in full of each of the Obligations,
the Company hereby grants to CIBC (on behalf of and for the
benefit of the Banks, pro rata, in accordance with their
respective Percentages) a continuing first lien on and security
interest in the Collateral.
SECTION II.2. Interest Continuing and Absolute. Until
payment in full of all the Obligations has been indefeasibly made
after the Termination Date, the security interest hereunder in
the Collateral shall continue in full force and effect, and it
and the Company's obligations hereunder shall be effective
irrespective of any illegality, invalidity or unenforceability of
the Bonds, the Letter of Credit, the Reimbursement Agreement,
this Agreement or any other Related Document.
SECTION II.3. Perfection. The Company shall perfect the
security interest hereunder in the Collateral (a) in the case of
Pledged Bonds, by delivering or causing to be delivered such
Pledged Bonds to the Custodian, (b) in the case of any other
certificated securities and cash proceeds forming part of the
Collateral, by delivering such Collateral to CIBC, (c) in the
case of uncertificated securities forming part of the Collateral,
by registering such securities in the name of CIBC, or (d) by any
other method permitted by the Uniform Commercial Code as in
effect in the State of New York on the date of such perfection.
All steps necessary for such perfection shall be taken by the
Company, in the case of each Pledged Bond forming part of the
Collateral, on the day such Bond becomes a Pledged Bond and, in
the case of proceeds, uncertified securities and any other
Collateral, immediately. The Company shall promptly notify CIBC
of any Collateral delivered to the Custodian and of any steps
taken to perfect the security interest hereunder in the
Collateral pursuant to Section 2.3(c) or (d) hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1. Representations and Warranties. The Company
represents and warrants to CIBC and the Custodian and, so long as
any of the Obligations remain unpaid, shall be deemed
continuously to represent and warrant to CIBC and the Custodian,
as follows:
(a) At the time of delivery to CIBC or the Custodian of any
Collateral, the Company will have good and marketable title to,
and be the sole owner of, such Collateral, free and clear of all
liens and other encumbrances, other than the security interest
created hereby, the security interest hereunder in such
Collateral shall have been perfected and no financing statement
or other instrument with respect to any of the Collateral shall
have been and continue to be recorded, registered or filed, and
no security agreement with respect to any of the Collateral shall
have been executed by the Company, other than with respect to
such security interest in favor of CIBC (for the benefit of the
Banks) as provided in Section 2.1 hereof.
(b) CIBC (on behalf of the Banks as aforesaid) has a valid,
first and prior perfected security interest in the Collateral.
(c) The Collateral may be properly pledged hereunder.
(d) No consents or approvals of any Person are required for
the execution, delivery and performance by the Company of this
Agreement, the assignment and transfer by the Company of any of
the Collateral to CIBC hereunder, or the subsequent sale or
transfer of the Collateral by CIBC pursuant to the terms hereof.
(e) This Agreement has been authorized by all necessary
corporate action, duly executed and delivered by the Company, and
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
ARTICLE IV
COVENANTS
SECTION IV.1. Protection of CIBC's Security Interest.
The Company hereby covenants and agrees that it shall defend its
title to, and the security interest hereunder in, the Collateral
against all claims of all other Persons, and shall keep the
Collateral free from all liens and encumbrances (other than the
security interest hereunder) and pay or cause to be paid promptly
when due all taxes, fees, assessments and other charges now or
hereafter imposed on or in respect of any of the Collateral.
SECTION IV.2. Sale of Collateral. The Company hereby
covenants and agrees that it shall not, without the prior written
consent of CIBC (given with the consent of the Majority Banks),
sell, transfer or otherwise dispose of, or permit any other
Person to sell, transfer or otherwise dispose of, any of the
Collateral or any of the Company's interests therein except in
accordance with the terms of this Agreement, the Indenture and
the Remarketing Agreement. The receipt by CIBC of all or any
part of the proceeds of any sale, transfer or other disposition
of any of the Collateral, except in accordance with the prior
sentence, shall not be deemed or construed to be a consent by
CIBC to any such sale, transfer or other disposition.
SECTION IV.3. Further Assurances. The Company hereby
covenants and agrees that it shall execute and deliver to CIBC or
the Custodian such assignments and other documents and
instruments, and shall take all other action relating to the
Collateral and the preservation, protection or perfection of
CIBC's security interest therein, as CIBC or the Custodian may
request, and the Company shall not file or permit to be filed any
financing statement (or amendment or continuation statement) or
execute any security agreement with respect to any of the
Collateral unless it names CIBC (on behalf of the Banks as
aforesaid) as the only secured party. To the extent permitted by
law, the Company hereby irrevocably appoints CIBC as its attorney-
in-fact (without requiring CIBC to act as such) to perform all
acts that CIBC deems appropriate to preserve, protect and perfect
its continuing security interest in the Collateral or to preserve
or protect the Collateral, and the Company and all other parties
hereto acknowledge and agree that such appointment is coupled
with an interest.
ARTICLE V
REMEDIES UPON THE OCCURRENCE OF AN EVENT OF
DEFAULT
SECTION V.1. Default Remedies. If an Event of Default
under the Reimbursement Agreement shall occur and be continuing,
CIBC shall be entitled to exercise and shall, at the direction of
the Majority Banks, exercise any one or more (at the discretion
of CIBC and/or such Majority Banks, as appropriate, at one or
more times) of the following remedies:
(a) CIBC shall have the right to receive the
Collateral, if any, then held by the Custodian, the
Remarketing Agent or any other Person, endorse, assign or
deliver in its own name or the name of the Company any and
all checks, drafts and other instruments for the payment of
money, securities or other property relating to or
constituting part of the Collateral, and cause the
Collateral to be registered in the name of CIBC or its
designee, and the Company hereby waives presentment, protest
and notice of nonpayment of any instrument so endorsed. In
furtherance of the foregoing, the Company hereby irrevocably
appoints CIBC, or any of its officers or designees, the
Company's lawful attorney-in-fact (without requiring CIBC so
to act), with power of substitution, in the name of the
Company or in the name of CIBC (i) to endorse the name of
the Company upon any of the Collateral, including proceeds,
and to cause any of the Collateral to be registered in the
name of CIBC (on behalf of the Banks as aforesaid) or its
designee; (ii) to demand, collect, receive payment of,
receipt for and give discharges and releases of any of the
Collateral; (iii) to commence and prosecute any and all
actions or proceedings at law or in equity in any court to
collect or otherwise realize on any of the Collateral to
enforce any rights in respect thereof; (iv) to initiate,
settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating or pertaining to any of the
Collateral; and (v) to sell, transfer, assign, discount,
negotiate or otherwise deal in all or any portion of the
Collateral or the proceeds thereof and generally to perform
all other acts necessary or desirable to realize on, and
obtain the benefits of, the Collateral and otherwise to
carry out the intention of this Agreement, as fully and
effectively as though CIBC were the absolute owner thereof,
and the Company hereby ratifies and confirms all that CIBC
shall do by virtue of this appointment. CIBC shall not,
under any circumstances, have any liability for any error or
omission made in the settlement, collection or payment or
other disposition of any or all of the Collateral or of any
instrument received in payment therefor.
(b) CIBC may sell or cause to be sold, in one or more
sales, at such price as CIBC may deem adequate, in its sole
discretion, and for cash or on credit or for future
delivery, with or without assumption of any credit risk, all
or any portion of the Collateral, at public or private sale,
without demand of performance or notice of intention to sell
or of time or place of sale (except such notice as may be
required by applicable statute and cannot be waived), and
CIBC and the Banks may be the purchaser of all or any
portion of the Collateral so sold; provided, however, that
CIBC shall first give notice to the Trustee that an Event of
Default has occurred and is continuing. If any Pledged
Bonds are sold pursuant to this subsection (b) (unless sold
on a basis that would exclude such Pledged Bond from the
benefit of the Letter of Credit), CIBC shall reinstate the
Letter of Credit to the full amount of principal and 62
days' interest on the principal amount at 12% per annum for
any such Pledged Bonds sold; provided, however, that such
reinstatement shall not be deemed to constitute a waiver by
CIBC of any of its rights under Section 6.02 of the
Reimbursement Agreement. The purchaser(s) at any such sale
shall thereafter hold the Collateral so sold absolutely,
free from any claim or right whatsoever, including any
equity of redemption, of the Company. Any such demand,
notice, claim, right or equity is hereby expressly waived
and released by the Company. Without limiting the
foregoing, if any such notice of the time or place of sale
is so required, the Company agrees that CIBC need not give
more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or
other intended disposition is to take place and that such
notice is reasonable notification of such matters. Neither
CIBC nor any Bank shall, under any circumstances, incur any
liability as a result of the sale of the Collateral or any
part thereof at any sale conducted in accordance with the
provisions of this Agreement. The Company hereby waives any
claims against CIBC or the Banks arising by reason of the
fact that the price at which the Collateral may have been
sold at any private sale was less than the price which might
have been obtained at a public sale or was less than the
aggregate principal amount of the Pledged Bonds or the then
total unpaid Obligations.
(c) The Company recognizes that CIBC may not deem it
desirable to effect a public sale of any or all of the
Pledged Bonds or otherwise but may deem it desirable to
resort to one or more private sales thereof to a restricted
group of purchasers who will be obliged to agree, among
other things, to acquire such securities for their own
account for investment and not with a view to the
distribution or resale thereof. CIBC shall be under no
obligation to delay a sale of any of the Pledged Bonds for
the period of time necessary to permit the Issuer to
register them for public sale under the Securities Act of
1933, as amended (the "Act"), or under applicable state
securities laws, even should the Issuer agree to do so.
(d) The Company shall do or cause to be done all such
other acts and things as may be deemed necessary or
desirable by CIBC to make such sale or sales of any portion
or all of the Pledged Bonds valid and binding and in
compliance with all applicable laws, regulations, orders,
writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales,
including registering such Bonds under the Act, or any state
securities laws (to the extent necessary, in CIBC's
judgment), all at the Company's expense.
(e) The Company acknowledges that a breach of any of
the covenants contained in this Article will cause
irreparable injury to CIBC (and the Banks) and that CIBC
(on behalf of the Banks as aforesaid) has no adequate remedy
at law in respect of any such breach and, as a consequence,
agrees that each and every covenant contained in this
Article shall be specifically enforceable against the
Company, and the Company hereby waives and agrees not to
assert any defenses against an action for specific
performance of such covenants except for a defense that no
Event of Default has occurred.
SECTION V.2. Remedies Not Exclusive. (a) The remedies
provided for herein are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or
under the Reimbursement Agreement, including, without limitation,
all rights and remedies of a secured party under Article 9 of the
Uniform Commercial Code as in effect in the State of New York on
the date of the exercise of any such remedy. The exercise by
CIBC of any one or more remedies under Section 5.1 shall not
constitute a waiver of, or otherwise prohibit, the exercise by
CIBC of other remedies provided herein or by law at the same or
other times.
(b) CIBC shall not be required to exercise any
particular rights, powers, remedies or benefits hereunder or
under the Reimbursement Agreement or any Related Document.
Without limiting the generality of the foregoing, CIBC (i) shall
be entitled to seek to realize upon or enforce the Collateral in
such order as it may from time to time determine and without
regard to whether or not any other collateral or security for any
of the Obligations shall have been resorted to, and (ii) shall
not be required to exhaust or enforce any particular portion of
the Collateral before seeking to realize or enforce upon any
other portion thereof.
ARTICLE VI
COLLECTIONS BY THE COMPANY AND APPLICATIONS
OF PROCEEDS IN RESPECT OF COLLATERAL
SECTION VI.1. Collections on Pledged Bonds by the
Company. (a) If, while any of the Obligations are outstanding,
the Company becomes entitled to receive or receives any payment
in respect of any Pledged Bond, the Company shall accept such
payment as CIBC's (and the Banks') agent, hold it in trust on
behalf of CIBC (and the Banks) and deliver it, with any necessary
endorsements, forthwith to CIBC for application to satisfaction
of the Obligations then due and payable. All sums of money so
paid in respect of any payment of interest on, or any portion of
purchase price equal to the amount of accrued interest on, any
Pledged Bond which are received by the Company and paid to CIBC
shall be credited against the obligation of the Company to pay
interest as set forth in Sections 2.05 and 2.06 of the
Reimbursement Agreement. All sums of money so paid in respect of
any payment of principal of, or any portion of purchase price
equal to the principal amount of, any Pledged Bond which are
received by the Company and paid to CIBC shall be credited
against the obligation of the Company to pay principal to CIBC as
set forth in Sections 2.05 and 2.06 of the Reimbursement
Agreement.
SECTION VI.2. Application of Proceeds. All proceeds
received from the sale or other disposition of, or realization on
or with respect to, all or any part of the Collateral shall be
applied by CIBC, in such order as CIBC in its sole discretion
(but subject to the direction of the Majority Banks) may
determine, to the payment of the costs and expenses of such sale,
disposition or realization, including, without limitation,
reasonable fees and expenses of counsel for CIBC and the Banks
and all expenses, liabilities and advances of CIBC in connection
therewith, and to the payment of the remaining Obligations (pro
rata, among the Banks).
ARTICLE VII
RELEASE OF COLLATERAL; COMPANY'S LIABILITY
FOR DEFICIENCY
SECTION VII.1. Release of Collateral. If (a) the
Company makes or causes to be made to CIBC a prepayment under
Section 2.08(b) of the Reimbursement Agreement in respect of its
principal repayment obligation under Section 2.06(b) of the
Reimbursement Agreement in respect of any Advance, (b) the
Remarketing Agent causes Pledged Bonds at the time held hereunder
to be sold or (c) the Obligations are otherwise indefeasibly
satisfied, upon receipt of such prepayment or of the proceeds of
such sale or other satisfaction of the Obligations, Pledged Bonds
in an aggregate principal amount equal to the prepayment so made,
or the principal amount of Pledged Bonds so sold, or the
Obligations so satisfied, shall be released from the lien of this
Agreement and the Company or its designee shall be entitled to
have the released Bonds delivered to the Company or the
Remarketing Agent in accordance with Sections 3.04(a) and 3.05 of
the Indenture; provided, however, that before delivering the
released Bonds to the Company or the Remarketing Agent, the
Custodian shall have received notice from CIBC of the
reinstatement of the amounts so prepaid, sold or satisfied as
available under the Letter of Credit.
SECTION VII.2. Company's Liability for Deficiency.
The Company shall in any event remain liable for any deficiency
remaining unpaid after the application of the proceeds of the
Collateral to the satisfaction of the Obligations.
ARTICLE VIII
GENERAL
SECTION VIII.1. Expenses. The Company shall pay to
CIBC all expenses (including reasonable fees and expenses of
counsel) of, or incident to, any actual or attempted sale or
other disposition of, or any exchange, enforcement (whether
through negotiations, legal proceedings or otherwise),
collection, compromise or settlement of or with respect to, all
or any of the Collateral, by litigation or otherwise. The
Company shall reimburse CIBC on demand for all reasonable costs
and expenses incurred in connection with the negotiation,
preparation, execution and administration of this Agreement and
any Amendment hereto, including, without limitation, any fees or
expenses (including reasonable fees and expenses of counsel to
the Custodian) paid by CIBC to the Custodian for its services in
connection with this Agreement.
SECTION VIII.2. Notices. All notices and other
communications provided for hereunder shall be in writing
(including telegraphic communication) and mailed, telecopied,
telexed, telegraphed or delivered to the parties to the telex or
telecopier number or address (as the case may be) specified for
the intended recipient on the signature page hereof, or to such
other number or address as such recipient may have last specified
by notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telexed or
telegraphed, be effective when deposited in the mails or sent by
telecopy or telex or delivered to the telegraph company,
respectively, addressed as aforesaid.
SECTION VIII.3. Remedies and Waivers. No failure or
delay on the part of CIBC in exercising any right hereunder shall
operate as a waiver of, or impair, any such right. No single or
partial exercise of any such right shall preclude any other or
further exercise thereof or the exercise of any other right. No
waiver of any such right shall be effective unless given in
writing. No waiver of any such right shall be deemed a waiver of
any other right hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION VIII.4. Amendment. No amendment or waiver of
any provision of this Agreement, nor consent to any departure by
the Company therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Custodian and CIBC
(with the consent of the Majority Banks), and then any such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION VIII.5. Assignment. (a) This Agreement shall
be binding upon and inure to the benefit of CIBC, the Custodian
and the Company and their respective successors and assigns;
provided, however, that the Company and the Custodian may not
assign any of their respective rights or obligations under this
Agreement without the prior written consent of CIBC.
(b) If CIBC or the Custodian assigns or otherwise
transfers any of its rights and obligations hereunder, each
reference in this Agreement to CIBC or the Custodian, as the case
may be, shall be deemed to be a reference to CIBC or the
Custodian, as the case may be, and the Person or Persons to which
such rights and obligations were assigned and transferred to the
extent of their respective interests.
SECTION VIII.6. Governing Law. This Agreement shall
be governed by, and construed and interpreted in accordance with,
the laws of the State of New York.
SECTION VIII.7. Custodian Appointed Agent. CIBC
hereby appoints the Custodian as its agent to receive and hold
Pledged Bonds constituting Collateral granted hereunder for
CIBC's account. The Company acknowledges such appointment and
agrees with CIBC and the Custodian, which by its execution of
this Agreement accepts such appointment, that, for so long as
this Agreement shall remain in full force and effect, all
certificates or instruments representing or evidencing the
Pledged Bonds (and all other portions of the Collateral which may
be delivered to the Custodian) shall be delivered to and held by
the Custodian, as agent for CIBC, separate and apart from all of
the other property of the Custodian and subject to CIBC's
exclusive direction and control. Upon receipt of any Collateral,
the Custodian shall promptly give notice to CIBC specifying the
Collateral received. Upon request from time to time by CIBC, the
Custodian shall promptly deliver all or such portions of the
Collateral as CIBC shall specify and to such Persons as CIBC
shall specify by notice to the Custodian. The Custodian shall
give prompt notice to CIBC (i) at least 30 days prior to
resigning as Tender Agent under the Indenture and (ii) upon
receipt of notice or otherwise learning of (x) its removal as
such Tender Agent or (y) any amendment, supplement or other
modification of the Indenture, or any consent, waiver or release
with respect thereto, affecting the obligations or duties of the
Tender Agent under the Indenture with respect to the Collateral.
SECTION VIII.8. Reasonable Care. Subject to Section
8.7 hereof, the Custodian shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral
in its possession if the Collateral is accorded treatment
substantially equal to that which the Custodian accords its own
property.
SECTION VIII.9. Integration of Terms; References in
Indenture. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes
all oral statements and prior writings with respect thereto.
This Agreement shall be deemed to be the "Custodian Agreement"
referenced in the Indenture.
SECTION VIII.10. Counterparts. This Agreement may be
executed in counterparts, and such counterparts taken together
shall be deemed to constitute one and the same agreement.
SECTION VIII.11. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
GULF STATES UTILITIES COMPANY
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
By: ___________________________
Name: _________________________
Title: ________________________
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as Agent
425 Lexington Avenue
New York, New York 10017
Telecopy: (212) 856-3763
Attention: Syndications Department
By: _____________________________
Name: ___________________________
Title: __________________________
THE BANK OF NEW YORK,
as Custodian
101 Barclay Street
New York, New York 10286
Telecopy: (212) 815-5096
Attention: Corporate Trust Department
By: _____________________________
Name: ___________________________
Title: __________________________
<PAGE>
EXHIBIT A
Irrevocable Letter of Credit
No. SYN-96-10003
Date of Issuance: February 26, 1996
Effective Date: March 7, 1996
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Attention: Corporate Trust, Trustee Administration
Re: Parish of West Feliciana, State of
Louisiana, Multiple Rate Demand Pollution
Control Revenue Bonds (Gulf States Utilities
Company Project) Series 1986
Dear Sirs:
I. We hereby establish, at the request and for the account
of Gulf States Utilities Company (the "Company"), in your favor,
as Trustee under the Indenture of Trust and Pledge, dated as of
April 1, 1986 (the "Indenture"), between you and the Parish of
West Feliciana, State of Louisiana (the "Parish"), in accordance
with the terms of which the Parish's Multiple Rate Demand
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) Series 1986 (the "Bonds") were issued, our Irrevocable
Letter of Credit No. SYN-96-10003 (the "Letter of Credit") in the
amount of U.S. $20,407,671 (the "Letter of Credit Amount"),
effective commencing on March 7, 1996 and expiring on the
earliest of (i) February 25, 1999, (ii) the date of the making by
you of the final drawing available to be made hereunder without
opportunity for reinstatement as provided herein, (iii) the date
of receipt by us of a certificate purportedly signed by one of
your authorized officers or 20 days after the effective date
specified in such certificate if the twentieth day after such
effective date is later than the date of receipt of such
certificate, which certificate states that: "(a) the interest
rate determination method for the Bonds has been changed to a
Fixed Rate (as defined in the Indenture) in accordance with the
Indenture and (b) the effective date of the Fixed Rate is
__________", (iv) the date of receipt by us of a certificate
purportedly signed by one of your authorized officers or 20 days
after the effective date specified in such certificate if the
twentieth day after such effective date is later than the date of
receipt of such certificate, which certificate states that: "(a)
the conditions precedent to the acceptance of an Alternate Letter
of Credit have been satisfied, (b) the Trustee has accepted the
Alternate Letter of Credit and (c) the effective date of the
Alternate Letter of Credit is _______________________", and (v)
the date of receipt by us of a certificate purportedly signed by
one of your authorized officers stating that no Bonds remain
Outstanding (as defined in the Indenture) (the earliest of such
dates being referred to herein as the "Termination Date"). On
the Termination Date, this Letter of Credit shall automatically
terminate and be delivered to us for cancellation.
2. We hereby irrevocably authorize you to draw on us in
accordance with the terms and conditions hereinafter set forth an
aggregate amount not exceeding the Letter of Credit Amount.
Within the Letter of Credit Amount, (i) an aggregate amount not
exceeding $20,000,000 may be drawn with respect to payment of the
principal, or the portion of the redemption price or Purchase
Price (as hereinafter defined) representing principal, of the
Bonds (the "Principal Portion") and (ii) an aggregate amount not
exceeding $407,671 may be drawn with respect to payment of up to
62 days' interest accrued, or the portion of the redemption price
or the Purchase Price representing up to 62 days' interest
accrued, on the Bonds at or before the Termination Date, at a
maximum rate of 12% per annum (the "Interest Portion"). As used
herein, "Purchase Price" shall mean the principal amount of,
together with accrued interest on, any Bonds purchased pursuant
to puts as provided in the Bonds or purchased in lieu of
redemption in accordance with Section 3.07 of the Indenture. No
drawing hereunder may be made in respect of (i) the portion of
the Purchase Price representing principal of Bonds which are
remarketed on the effective date of a put, or, to the extent that
such Bonds are remarketed at a price which includes accrued
interest, interest on such Bonds, (ii) any premium which may be
payable with respect to principal of the Bonds and (iii) any
principal or interest with respect to Pledged Bonds (as defined
in the Indenture).
3. Funds under this Letter of Credit are available to you
against receipt by us at the time and place specified below of
your demand for payment in the form of Exhibit 1 hereto
appropriately completed and purportedly signed by one of your
authorized officers. Each such demand (a "Demand") shall be
dated the date of presentation, shall be presented at our office
located at 425 Lexington Avenue, New York, New York 10017 or at
any of our other offices in the City of New York which we may
designate by written notice delivered to you and, subject to the
next succeeding sentence, shall be payable on the date on which
the corresponding payment with respect to the Bonds becomes due
and payable (a "Payment Date") pursuant to the Indenture. If we
receive a Demand at such office, all in strict conformity with
the terms and conditions of this Letter of Credit, (i) at or
prior to 12:15 P.M., New York time, on any Payment Date, we will
honor the same by forwarding to you payment in respect thereof
not later than 3:00 P.M., New York time, on such Payment Date,
(ii) between 12:15 P.M. and 2:00 P.M., New York time, on any
Payment Date, we will honor the same by 12:00 noon, New York
time, on the Business Day next succeeding such Payment Date and
(iii) after 2:00 P.M., New York time, on any Payment Date, we
will honor the same by the close of business on the Business Day
next succeeding such Payment Date. If requested by you, payment
under this Letter of Credit will be made by wire transfer of
federal funds to you or to your account with any bank located in
New York City or by deposit of immediately available funds into a
designated account that you maintain with us. As used herein,
"Business Day" shall mean any day except a Saturday, Sunday or
other day on which commercial banks located in the city where the
Trustee maintains its principal corporate trust office or where
Demands under the Letter of Credit are presented to the Bank are
required by law, regulation or executive order to close or on
which such banks are generally voluntarily closed for business in
such locations and on which the New York Stock Exchange is open.
4. We hereby engage with you that all Demands presented
under and in accordance with the terms of this Letter of Credit
will be duly honored by us as provided herein.
5. If a Demand delivered to us hereunder does not conform
to the terms and conditions of this Letter of Credit, we will
give you prompt telephonic, telecopy or similar notice such
notice to be promptly confirmed by written notice in the form of
Exhibit 2 hereto appropriately completed. Upon being notified
that such Demand was not effected in conformity with this Letter
of Credit, you may attempt to correct any such non-conforming
Demand if, and to the extent that, you are entitled and able to
do so, and each such correction shall be handled as though it
were a new presentation pursuant to paragraph 3 hereof.
6. The Letter of Credit Amount shall be reduced from time
to time (i) as to the Principal Portion, by the amount of
drawings made hereunder with respect to the payment of principal
as set forth in items 3B, 3D, 3F, 3H or 3J of the Demands
delivered to us; (ii) as to the Principal Portion, by the
principal amount of Bonds redeemed or purchased by the Company or
its designee with monies other than drawings under this Letter of
Credit upon our receipt of a written certificate purportedly
signed by one of your authorized officers in the form of Exhibit
3 hereto appropriately completed; (iii) as to the Interest
Portion, by the amount of drawings made hereunder with respect to
the payment of interest as set forth in items 3A, 3C, 3E, 3G, 3I
or 3K of the Demands delivered to us and (iv) as to the Interest
Portion, by an amount that bears the same relation to the initial
Interest Portion as the principal amount of Bonds redeemed or
purchased by the company or its designee with monies other than
drawings under this Letter of Credit bears to the Initial
Principal Portion upon our receipt of a written certificate
purportedly signed by one of your authorized officers in the form
of Exhibit 3 hereto appropriately completed.
7. (a) Whenever a drawing is made pursuant to Item 3A of
a Demand, if you have not received notice from us in writing or
by telephone (which shall be promptly confirmed in writing) by
the close of business on the ninth calendar day following payment
by us of the amount so drawn that the amount drawn has not been
reinstated because we have not been reimbursed for such drawing,
then effective at the opening of business on the next succeeding
Business Day the Interest Portion, in the case of amounts drawn
pursuant to item 3A of a Demand, of the Letter of Credit Amount
shall be reinstated to the extent of such drawing.
(b) Whenever a drawing is made pursuant to item 3B or
3J and, if applicable, item 3C or 3K of a Demand, if we are
reimbursed in an amount equal to the Purchase Price of a Bond in
respect of which we have made payment pursuant to such drawing,
then we will promptly notify you in writing or by telephone
(which shall be promptly confirmed in writing) that we have been
so reimbursed and that effective the opening of business on the
Business Day you receive our notice the Principal Portion and the
Interest Portion shall be reinstated in an amount equal to the
portions of the Purchase Price of such Bond corresponding to
principal and interest, if any, respectively.
8. Upon the payment to you or your account of the amount
specified in a Demand hereunder, we shall be fully discharged of
our obligation under this Letter of Credit with respect to such
Demand, and we shall not thereafter be obligated to make any
further payments under this Letter of Credit in respect of such
Demand to you or to any other person who may have made to you or
who makes to you a demand for payment of principal, redemption
price or Purchase Price of, or interest on, any Bond. Failure by
you to draw hereunder with respect to any payment of principal,
redemption price or Purchase Price of, or interest on, any Bond
will not result in the Letter of Credit ceasing to be available
for any subsequent payment of principal, redemption price,
Purchase Price or interest.
9. Notwithstanding any other provision of this Letter of
Credit, no drawing hereunder may be made in respect of:
(i) interest that may accrue with respect to the
Bonds after the maturity thereof (whether at stated
maturity, on redemption or acceleration, or otherwise),
except in the case of an acceleration of the principal and
interest on the Bonds pursuant to Section 8.01(h) or 8.01(i)
of the Indenture, in which case up to 10 days' interest to
accrue on the Bonds may be drawn hereunder;
(ii) principal (or the portion of the redemption
price or Purchase Price representing principal) of the Bonds
becoming payable under the Indenture after the effective
date of a change of the interest rate determination method
for the Bonds to a Fixed Rate or the effective date of an
Alternate Letter of Credit pursuant to the Indenture; or
(iii) interest (or the portion of the redemption price
or Purchase Price representing interest) on the Bonds
accruing after the dates referred to in clause (ii) above.
10. Except as provided in this paragraph, only you, as
Trustee under the Indenture, may make drawings under this Letter
of Credit. This Letter of Credit is transferable in its entirety
(but not in part) to any transferee who has succeeded you as
Trustee under the Indenture and may be successively so
transferred. Transfer of the available balance under this Letter
of Credit to such transferee shall be effected by the
presentation to us of the original of this Letter of Credit
accompanied by a certificate substantially in the form of Exhibit
4 hereto appropriately completed.
11. Communications with respect to this Letter of
Credit shall be in writing and shall be addressed to us at 425
Lexington Avenue, New York, New York 10017 or at any of our other
offices in the City of New York which we may designate by written
notice delivered to you, specifically referring thereon to
Canadian Imperial Bank of Commerce, New York Agency, Irrevocable
Letter of Credit No. SYN-96-10003.
12. You acknowledge that unless and until changed as
set forth below, all notices to you required pursuant to this
Letter of Credit may be directed to the address, telecopy or
telephone numbers set forth below. The foregoing may be changed
only be written notice to us delivered pursuant to paragraph 11
hereof.
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Telecopier: 212-815-5096
Telephone: 212-815-5733
13. This Letter of Credit sets forth in full our
undertaking, and such undertaking shall not in any way be
modified, amended, amplified or limited by reference to any
document, instrument or agreement referred to herein (including
the Bonds and the Indenture), except only the Demands; and any
such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except for such
Demands.
14. This Letter of Credit shall be governed by and
construed in accordance with the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (the "Uniform Customs"). This
Letter of Credit shall be deemed to be a contract made under the
laws of the State of New York and shall, as to matters not
governed by the Uniform Customs, be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
By:
<PAGE>
EXHIBIT 1 TO THE
LETTER OF CREDIT
DEMAND FOR PAYMENT UNDER
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY
LETTER OF CREDIT NO. SYN-96-10003
Canadian Imperial Bank of Commerce,
New York Agency
425 Lexington Avenue
New York, New York 10017
Attention: Syndications Department
Dear Sirs:
The undersigned, a duly authorized officer of The Bank of
New York (the "Trustee"), hereby demands payment under Canadian
Imperial Bank of Commerce, New York Agency, Irrevocable Letter of
Credit No. SYN-96-10003 (the "Letter of Credit") and, in
connection therewith, certifies as set forth below. Any
capitalized terms used herein and not defined shall have the
respective meanings set forth in the Letter of Credit or the
Indenture referred to therein (the "Indenture").
1. The Trustee is the Trustee under the Indenture.
2. The Trustee is making a demand for payment under
the Letter of Credit in order to make a payment in respect
of the Bonds on ___________, 19__ (the "Payment Date") in
accordance with the terms of the Indenture. There are not
funds available to the Trustee from the applicable
categories specified in Section 4.02 of the Indenture in
order to make such payment.
3. The amount demanded by this Demand is as follows:
A-- Interest payable on scheduled
Interest Payment Dates (except interest on any
principal being paid on the same date).
$
B-- The portion of the Purchase Price
of Bonds which have been put representing
principal.
$
C-- The portion of the Purchase Price
of Bonds which have been put representing
interest.
$
D-- The portion of the redemption
price of less than all Outstanding Bonds
representing principal.
$
E-- The portion of the redemption
price of less than all Outstanding Bonds
representing interest.
$
F-- The portion of the Purchase Price
of Bonds being purchased in lieu of redemption
pursuant to paragraph captioned Mandatory
Redemption at Beginning of Fixed Rate Period or
pursuant to paragraph captioned Mandatory
Redemption for Failure to Replace Letter of
Credit as contained in Section 8 of the Bonds
representing principal.
$
G-- The portion of the Purchase Price
of Bonds being purchased in lieu of redemption
pursuant to paragraph captioned Mandatory
Redemption at Beginning of Fixed Rate Period or
pursuant to paragraph captioned Mandatory
Redemption for Failure to Replace Letter of
Credit as contained in Section 8 of the Bonds
representing interest.
$
H-- Amount due with respect to payment
of principal of all Outstanding Bonds on the
date all Outstanding Bonds became (or will
become) due and payable.
$
I-- Interest due on all Outstanding
Bonds on the date all Outstanding Bonds became
(or will become) due and payable.
$
J-- The portion of the purchase price
of Bonds being purchased in lieu of redemption
pursuant to paragraph captioned Mandatory
Redemption at Beginning of Optional Interest
Rate Period or paragraph captioned Mandatory
Redemption After Date of Taxability contained in
Section 8 of the Bonds representing principal.
$
K-- The portion of the purchase price
of Bonds being purchased in lieu of redemption
pursuant to paragraph captioned Mandatory
Redemption at Beginning of Optional Interest
Rate Period or paragraph captioned Mandatory
Redemption After Date of Taxability contained in
Section 8 of the Bonds representing interest.
$
Total $
4. The amount demanded by this Demand was computed in
accordance with the terms of the Bonds and the Indenture.
5. The respective aggregate principal and aggregate
interest amounts set forth in paragraph 3 of this Demand do
not exceed the amounts available on the date hereof to be
drawn under the Letter of Credit in respect of payment of
principal and interest relating to the Bonds.
6. No Alternate Letter of Credit has been delivered
to the Trustee under Section 5.01(a) of the Indenture.
7. No drawing made pursuant to this Demand is with
respect to any period during which the Bonds bore interest
at the Fixed Rate.
8. No drawing made pursuant to this Demand is with
respect to Pledged Bonds.
Please remit payment in immediately available funds in
accordance with the remittance instructions indicated below. The
undersigned may be contacted by telephone at _________ regarding
this Demand.
Remittance instructions:
IN WITNESS WHEREOF, the Trustee has executed and delivered
this demand for payment as of the ___ day of ______________,
___________.
THE BANK OF NEW YORK
By:
Name:
Title:
<PAGE>
EXHIBIT 2 TO THE
LETTER OF CREDIT
NOTICE OF DISHONOR
, _____
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Attention:
Re: Irrevocable Letter of Credit No. SYN-96-10003
Dear Sirs:
You are hereby notified that we will not honor your demand
for payment dated ________________, ____ under the above-
referenced Letter of Credit, which demand was not made in
accordance with the terms and conditions of such Letter of Credit
because: [list reasons]
We [herewith return/are holding at your disposal] such
demand for payment.
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
By:
Name:
Title:
<PAGE>
EXHIBIT 3 TO THE
LETTER OF CREDIT
CERTIFICATE OF PAYMENT
The undersigned, a duly authorized officer of The Bank of
New York (the "Trustee"), hereby certifies to Canadian Imperial
Bank of Commerce, New York Agency, with reference to Irrevocable
Letter of Credit No. SYN-96-10003 (the "Letter of Credit") as set
forth below. Any capitalized terms used herein and not defined
shall have the respective meanings set forth in the Letter of
Credit or the Indenture referred to therein (the "Indenture").
1. The Trustee is the Trustee under the Indenture.
2. Bond Nos. __________________ in the aggregate
principal amount of $____________ were redeemed or purchased
by the Company or its designee and retired with monies other
than drawings under the Letter of Credit pursuant to the
terms of Section 4.02 of the Indenture on ____________,
____. The funds used to effect such redemption or purchase
were held by the Trustee for 123 days during which no
Bankruptcy Filing occurred.
3. The Principal Portion and the Interest Portion of
the Letter of Credit shall be reduced as provided in
paragraph 6 of the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the ___ day of ____________, ____.
THE BANK OF NEW YORK
By:
Name:
Title:
<PAGE>
EXHIBIT 4 TO THE
LETTER OF CREDIT
INSTRUCTION TO TRANSFER
___________, ____
Canadian Imperial Bank of Commerce,
New York Agency
425 Lexington Avenue
New York, New York 10017
Attention: Syndications Department
Re: Your Irrevocable Letter of Credit No. SYN-96-10003
Ladies and Gentlemen:
For value received, we hereby irrevocably assign and
transfer all of our rights under the above-captioned Letter of
Credit (the "Letter of Credit"), as heretofore and hereafter
amended, extended or increased, to:
[Name of Transferee]
[Address of Transferee]
By this transfer, all of our rights in the Letter of Credit
are transferred to the transferee, and the transferee shall have
sole rights as beneficiary under the Letter of Credit, including
sole rights relating to any amendments, whether increases or
extensions or other amendments, and whether now existing or
hereafter made. The transferee has succeeded the undersigned as
Trustee under the Indenture of Trust and Pledge dated as of April
1, 1986 (the "Indenture") pertaining to the Parish of West
Feliciana, State of Louisiana, Multiple Rate Demand Pollution
Control Revenue Bonds (Gulf States Utilities Company Project)
Series 1986. The Letter of Credit may hereafter be amended,
extended or increased without our consent or notice to us and you
will give notice thereof directly to the transferee.
The original Letter of Credit is herewith returned with all
amendments through this date. Please notify the transferee in
such form as you deem advisable of this transfer and of the terms
and conditions of the Letter of Credit, including amendments as
transferred. A copy of this instrument of transfer has been
furnished to Gulf States Utilities Company for its information.
Very truly yours,
THE BANK OF NEW YORK
By:
Name:
Title:
By its signature below, the undersigned transferee
acknowledges that it has been duly succeeded as trustee under the
Indenture.
[Insert Name of Transferee]
By:
Name:
Title:
<PAGE>
EXHIBIT C
OPINION OF COUNSEL TO THE COMPANY
Canadian Imperial Bank
of Commerce, New York Agency
425 Lexington Avenue
New York, New York 10017
Re: Gulf States Utilities Company
Ladies and Gentlemen:
We are counsel to Gulf States Utilities Company, a Texas
corporation (the "Company"). In that capacity we are familiar
with the matters relating to the preparation, execution and
delivery of a Letter of Credit and Reimbursement Agreement, dated
as of February 26, 1996 (the "Reimbursement Agreement"), among
the Company, the banks from time to time party thereto, and
Canadian Imperial Bank of Commerce, New York Agency, as Agent.
Terms defined in the Reimbursement Agreement are used herein as
therein defined. Among other things, we have examined:
(1) a fully executed counterpart of the Reimbursement
Agreement;
(2) the Letter of Credit referred to in the
Reimbursement Agreement;
(3) the Articles of Incorporation of the Company and
all amendments thereto (the "Charter");
(4) the by-laws of the Company as now in effect (the
"By-laws"); and
(5) the documents delivered by or on behalf of the
Company pursuant to Section 3.01 of the Reimbursement
Agreement.
We have also examined the originals, or copies certified to
our satisfaction, of (i) such other corporate records of the
Company, certificates of public officials and of officers of the
Company, (ii) the agreements, instruments and documents which
affect or purport to affect the obligations of the Company under
the Reimbursement Agreement, and (iii) such other agreements,
instruments and documents as we have deemed necessary as a basis
for the opinions hereinafter expressed. As to questions of fact
material to such opinions, we have, when relevant facts were not
independently established by us, relied upon certificates of the
Company or its officers or of public officials. We have assumed
the due execution and delivery of the Reimbursement Agreement by
the Bank.
Based upon the foregoing and upon such investigation as we
have deemed necessary, we are of the opinion that:
1. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Texas and is duly qualified to do business in, and
is in good standing under the laws of the State of
Louisiana.
2. The execution, delivery and performance by the
Company of the Reimbursement Agreement and the Related
Documents to which it is a party are within the Company's
corporate powers, have been duly authorized by all necessary
corporate action, do not contravene (i) the Charter or the
By-laws, (ii) law or (iii) any contractual restriction
binding on or affecting the Company, and do not result in or
require the creation of any lien, security interest or other
charge or encumbrance (except as provided in or contemplated
by the Reimbursement Agreement or the Indenture) upon or
with respect to any of its properties.
3. No authorization or approval of other action by,
and no notice to or filing or registration with, any
governmental authority or regulatory body is required for
the due execution, delivery and performance by the Company
of the Reimbursement Agreement or any Related Document to
which it is a party, except for the approval of the Federal
Energy Regulatory Commission, which has been duly obtained
and is in full force and effect.
4. The Reimbursement Agreement and the Related
Documents to which the Company is a party have been duly
executed and delivered by the Company and are the legal,
valid and binding obligations of the Company enforceable
against the Company in accordance with the respective terms.
5. To the best of our knowledge after due inquiry
with respect thereto, there is no pending or threatened
action, investigation or proceeding against or affecting the
Company before any court, governmental agency or arbitrator
which may materially adversely affect the financial
condition or operations of the Company, except as expressly
set forth in the [Disclosure Documents].
The opinions set forth above are subject to the
following qualifications:
(a) The enforceability of the Company's obligations
under the Reimbursement Agreement and the Related Documents
is subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the creditors' rights generally.
(b) The enforceability of the Company's obligations
under the Reimbursement Agreement and the Related Documents
may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding
in equity or at law).
Very truly yours,
<PAGE>
AMENDMENT TO LETTER OF CREDIT
March _, 1996
The Bank of New York
101 Barclay Street, 21st Floor
New York, New York 10286
Attention: Corporate Trust, Trustee Administration
Re: Irrevocable Letter of Credit No. SYN-96-10003
Ladies and Gentlemen:
We refer to the Irrevocable Letter of Credit No. SYN-96-
10003 (the "Letter of Credit") issued by Canadian Imperial Bank
of Commerce, New York Agency (the "Bank") on February 26, 1996 to
The Bank of New York (the "Trustee") in the maximum amount of
$20,407,671, in connection with the Parish of West Feliciana,
State of Louisiana, Multiple Rate Demand Pollution Control
Revenue Bonds (Gulf States Utilities Company Project) Series
1986.
This is to confirm that paragraph 4 of the Letter of Credit
is hereby amended to read in its entirety as follows: "We hereby
engage with you that all Demands presented under and in
accordance with the terms of this Letter of Credit will be duly
honored by us as provided herein (from our own funds, and not
directly or indirectly from funds or other assets of the Company
or the Parish, or any affiliate thereof)."
Please confirm your agreement with the foregoing by signing
and returning to our attention a copy of this amendment letter.
This amendment letter shall be effective solely for the purpose
described herein and shall have no effect on any other provision
contained in the Letter of Credit.
Very truly yours,
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
By:______________________
Title:___________________
By:______________________
Title:___________________
Confirmed and agreed to:
THE BANK OF NEW YORK
By:______________________
Title:___________________
March __, 1996
Canadian Imperial Bank of Commerce,
New York Agency
425 Lexington Avenue
New York, New York 10017
Ladies and Gentlemen:
We refer to the Irrevocable Letter of Credit No. SYN-96-
10003 (the "Letter of Credit") issued by Canadian Imperial Bank
of Commerce, New York Agency (the "Bank") on February 26, 1996 to
The Bank of New York (the "Trustee") in the maximum amount of
$20,407,671, in connection with the Parish of West Feliciana,
State of Louisiana, Multiple Rate Demand Pollution Control
Revenue Bonds (Gulf States Utilities Company Project) Series
1986.
We hereby request that the Bank and the Trustee agree to an
amendment to the Letter of Credit in the form attached hereto.
Very truly yours,
GULF STATES UTILITIES COMPANY
By:________________________
Title:_____________________
