Exhibit B
EXECUTION COPY
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT, dated as of September 15, 1999
(this "Amendment and Restatement"), to that certain CREDIT
AGREEMENT, dated as of September 17, 1998 (the "Existing
Agreement"; and as amended by this Amendment and Restatement, the
"Amended and Restated Agreement"), among Entergy Corporation, a
Delaware corporation (the "Borrower"), certain lenders party
thereto (the "Lenders") and Citibank, N.A., as Administrative
Agent (the "Administrative Agent").
PRELIMINARY STATEMENT
The Borrower, the Lenders and the Administrative Agent
previously entered into the Existing Agreement. The parties
hereto now wish to amend the Existing Agreement in its entirety
to read as set forth in the Existing Agreement with the
amendments set forth below. The parties therefore agree as
follows (capitalized terms used but not defined herein having the
meanings assigned to such terms in the Existing Agreement):
SECTION 1. Amendment to Existing Agreement. The Existing
Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2
hereof, hereby amended as follows:
(a) The cover page is amended by (i) replacing the name
"CITIBANK SECURITIES, INC." with "CITIBANK, N.A.", and (ii)
adding the following at the end thereof:
THE BANK OF NEW YORK
as Syndication Agent
(b) The definition of "Applicable Margin" in Section 1.01 is
amended in its entirety to read as follows:
" `Applicable Margin' means, for any Eurodollar
Rate Advance or any Base Rate Advance, (i) on any date
the Utilization Percentage equals or is less than 50%
(without giving effect to any Auction Reduction), the
Eurodollar Margin or Base Rate Margin interest rate per
annum set forth below in the columns identified as
Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 4 and Level 5, and
(ii) on any date the Utilization Percentage exceeds 50%
(without giving effect to any Auction Reduction), the
Utilized Eurodollar Margin or Utilized Base Rate Margin
interest rate per annum set forth below in the columns
identified as Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 4 and
Level 5, in each case, determined by reference to the
Relevant Rating.
Xxxxx 0 Xxxxx 0 Xxxxx0 Xxxxx 0 Xxxxx 5
S&P A- or better BBB+ BBB BBB- below BBB-*
Xxxxx'x and and and and or
A3 or better Xxx0 Xxx0 Xxx0 below Baa3*
Interest Rate Per Annum
Eurodollar Margin 0.400% 0.500% 0.550% 0.800% 1.750%
Base Rate Margin 0.000% 0.000% 0.000% 0.000% 0.750%
Utilized Eurodollar 0.525% 0.625% 0.675% 1.050% 2.000%
Margin
Utilized Base Rate 0.000% 0.000% 0.000% 0.050% 1.000%
Margin
*or unrated
Any change in the Applicable Margin will be effective
as of the date on which S&P or Xxxxx'x, as the case may
be, announces the applicable change in any Senior Debt
Rating."
(c) Section 1.01 is amended to include the following definition:
"`Necessary Approvals' means any governmental and
regulatory authorizations and approvals not obtained by
or on behalf of the Borrowers and in full force and
effect on the date hereof which governmental and
regulatory authorizations and approvals are required to
be obtained in order for the Borrower to legally and
validly incur and pay interest at each and every rate
prescribed herein, regardless of the then Relevant
Rating."
(d) Section 1.01 is amended to include the following definition:
"`Relevant Rating' means Senior Debt Ratings of the
Significant Subsidiary (other than SERI) having the second lowest
Senior Debt Ratings from Xxxxx'x and S&P of all Significant
Subsidiaries (other than SERI).
(e) The definition of "Revolving Period" in Section 1.01 is
amended in its entirety to read as follows:
"`Revolving Period' means the period beginning the
date hereof and ending on September 13, 2000, or such
later date as to which the Lenders may from time to
time agree pursuant to Section 2.17."
(f) Section 1.01 is amended to include the following definition:
"`Utilization Percentage' means, as of any time
for the determination thereof, the percentage obtained
by dividing the aggregate outstanding Advances by the
aggregate Commitments then in effect."
(g) Section 2.04(a) is amended by replacing the pricing
chart with the following:
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
S&P A- or better BBB+ BBB BBB- below BBB-*
and and and and or
Xxxxx'x A3 or better Xxx0 Xxx0 Xxx0 below Baa3
Rate Per Annum
Facility Fee 0.100% 0.125% 0.150% 0.200% 0.250%
*or unrated
(h) Section 2.11 is amended by (i) adding the letter "(a)"
before the words "The Borrower may, upon notice" and (ii) adding
the following at the end thereof:
(b) If at any time the Necessary Approvals shall
not have been obtained and (i) the Utilization
Percentage shall exceed 50% and at such time the
Relevant Rating is equal to Baa3 or better but below
Baa2 and equal to BBB- or better but below BBB,
respectively, then the Borrower shall prepay Contract
Advances in an amount sufficient to reduce the
Utilization Percentage to 50% or below, together with
accrued interest to the date of such prepayment on the
principal amount prepaid (provided, however, that the
rate of interest on the principal amount prepaid shall
not exceed the maximum amount then permitted under
applicable regulatory approvals) or (ii) the Relevant
Rating is below Baa3 or below BBB-, respectively, or
unrated, the Borrower shall prepay all of the
outstanding principal amounts of the Contract Advances,
together with accrued interest to the date of such
prepayment on the principal amount prepaid (provided,
however, that the rate of interest on the principal
amount prepaid shall not exceed the maximum amount then
permitted under applicable regulatory approvals). In
the case of any prepayment of a Eurodollar Rate Advance
pursuant to this subsection, the Borrower shall be
obligated to reimburse the Lenders in respect thereof
pursuant to Section 8.04(b) on the date of such
prepayment.
(i) Section 3.02(a) is amended by adding the following at the
end thereof:
(iii) If the Relevant Rating is equal to Baa3
or better but below Baa2 and equal to BBB- or better
but below BBB, respectively, and Necessary Approvals
have not been obtained, before and after giving effect
to such Contract Borrowing, the Utilization Percentage
is 50% or below.
(iv) If the Relevant Rating is below Baa3 or below
BBB-, respectively, or unrated, the Borrower has
received all Necessary Approvals to permit payment of
interest at the rate applicable to such Contract
Borrowing.
(j) Section 3.03(c) is amended by adding the following at the
end thereof:
(iii) The Borrower has received all Necessary
Approvals (if any) to permit payment of interest at the
rate or rates applicable to such Auction Advance.
(k) Section 5.01(c) is amended by adding the following at the
end thereof, "(xiii) Promptly and in any event within two
Business Days after receipt thereof by the Borrower, copies of
each Necessary Approval."
(l) Section 8.07(i) is amended by (i) replacing the words
"Majority Lenders" with the words "Administrative Agent" and (ii)
deleting the parenthetical, "(provided that, for purposes of this
determination by the Majority Lenders, the non-consenting Lender
shall not be included in the Lenders holding Contract Advances or
having Commitments)".
(m) Section 8.07(j) is amended by (i) replacing the words
"Majority Lenders" with the words "Administrative Agent", (ii)
deleting the parenthetical, "(provided that, for purposes of this
determination by the Majority Lenders, the Lender making a demand
for payment or subject to a notification or assertion of
illegality shall not be included in the Lenders holding Contract
Advances or having Commitments)" and (iii) replacing the words,
"this subsection (i)" with the words, "this subsection (j)".
(n) The Commitment of each Lender shall be the amount set forth
opposite such Lender's name on the signature pages hereto, or if
such Lender shall enter into any Assignment and Acceptance or any
Increased Commitment Supplement after the date hereof, set forth
for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c) of the Credit Agreement, as
such Commitment may be reduced pursuant to Section 2.05 or 2.17
of the Credit Agreement.
SECTION 2. Conditions of Effectiveness of Amendment and
Restatement. This Amendment and Restatement shall become
effective as of the date first written above when, and only when,
the Administrative Agent shall have received (a) from the
Borrower, on behalf of each Lender, the upfront fees payable to
each Lender, as described in the Invitation to Offer, dated
August 16, 1999, from Citibank, (b) counterparts of this
Amendment and Restatement, executed by the Borrower and all the
Lenders in sufficient quantity for each party to have a fully
executed original, (c) a certificate of the Secretary or an
Assistant Secretary of the Borrower certifying that attached
thereto are true and correct copies of (i) resolutions of the
Board of Directors of the Borrower or other corporate approvals
required for the due execution, delivery and performance of this
Amendment and Restatement and (ii) all governmental and
regulatory authorizations and approvals required for the due
execution, delivery and performance of this Amendment and
Restatement and (d) opinions of counsel to the Borrower and to
the Administrative Agent substantially in the forms of Xxxxxxxx X-
0 and A-2, respectively, attached hereto upon which each Lender
and the Administrative Agent may rely.
SECTION 3. Representations and Warranties of the Borrower.
The Borrower represents and warrants that (a) the representations
and warranties contained in Section 4.01 of the Amended and
Restated Agreement are true and correct on and as of the date
first above written as though made on and as of such date, with
each reference therein to "this Agreement", "hereunder", "hereof"
and words of like impact referring to the Existing Agreement
being deemed to mean and include a reference to this Amendment
and Restatement, and (b) no event has occurred and is continuing,
or would result from the execution and delivery of this Amendment
and Restatement, that constitutes a Prepayment Event or an Event
of Default or that would constitute a Prepayment Event or an
Event of Default but for the requirement that notice be given or
time elapse or both.
SECTION 4. Reference to and Effect on the Existing Agreement.
Upon the effectiveness of Section 1 hereof, on and after the date
hereof each reference in the Existing Agreement to "this
Agreement", "hereunder", "hereof" and each reference in any Note
to "the Agreement", "thereunder" or "thereof" or, in either case,
to words of like import referring to the Existing Agreement shall
mean and be a reference to the Existing Agreement, as amended
hereby. Except as specifically amended above, the Existing
Agreement and the Notes are and shall continue to be in full
force and effect and are hereby in all respects ratified and
confirmed. The execution, delivery and effectiveness of this
Amendment and Restatement shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any
Lender or the Administrative Agent under the Existing Agreement
or the Notes, nor constitute a waiver of any provision of the
Existing Agreement or the Notes.
SECTION 5. Costs, Expenses and Taxes. The Borrower agrees to
pay on demand all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of
this Amendment and Restatement, and the other instruments and
documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
King & Spalding, counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative
Agent as to its rights and responsibilities hereunder and
thereunder, and all costs and expenses (including, without
limitation, reasonable counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment and
Restatement. In addition, the Borrower agrees to pay any and all
stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and
Restatement, and the other instruments and documents to be
delivered hereunder, and agree to save the Lenders and the
Administrative Agent harmless from and against any and all
liabilities with respect to or resulting from any delay in paying
or omission to pay such taxes.
SECTION 6. Execution in Counterparts. This Amendment and
Restatement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. Governing Law. This Amendment and Restatement
shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be executed by their respective
officers thereunto duly authorized, as of the date first above
written.
ENTERGY CORPORATION
By:_______________________________
Name:
Title:
Commitment CITIBANK, N.A., as Administrative
Agent and a Lender
$30,000,000
By:_______________________________
Name:
Title:
Banks
Commitment ABN AMRO BANK N.V.
$25,000,000
By:
Name:
Title:
By:
Name:
Title:
Commitment THE BANK OF NEW YORK
$25,000,000
By:
Name:
Title:
Commitment THE BANK OF NOVA SCOTIA
$20,000,000
By:
Name:
Title:
Commitment BANK ONE, NA
$20,000,000
By:
Name:
Title:
Commitment BANQUE NATIONALE DE PARIS
$15,000,000
By:
Name:
Title:
Commitment THE CHASE MANHATTAN BANK
$20,000,000
By:
Name:
Title:
Commitment CREDIT AGRICOLE INDOSUEZ
$15,000,000
By:
Name:
Title:
By:
Name:
Title:
Commitment MELLON BANK, N.A.
$15,000,000
By:
Name:
Title:
Commitment THE ROYAL BANK OF SCOTLAND PLC
$15,000,000
By:
Name:
Title:
Commitment UBS AG, STAMFORD BRANCH
$15,000,000
By:
Name:
Title:
By:
Name:
Title:
Commitment UNION BANK OF CALIFORNIA, N.A.
$15,000,000
By:
Name:
Title:
Commitment WESTDEUTSCHE LANDESBANK GIROZENTRALE
$20,000,000
By:
Name:
Title:
EXHIBIT A-1
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[Date]
To each of the Lenders parties to the
Amended and Restated Agreement referred to below,
and to Citibank, N.A., as Administrative Agent
Entergy Corporation
Ladies and Gentlemen:
I have acted as counsel to Entergy Corporation, a Delaware
corporation (the "Borrower"), in connection with the preparation,
execution and delivery of the Amendment and Restatement, dated as
of September 15, 1999 (the "Amendment and Restatement"), to that
certain Credit Agreement, dated as of September 17, 1998 (the
"Existing Agreement"; and as amended by the Amendment and
Restatement, the "Amended and Restated Agreement"), by and among
the Borrower, the Lenders parties thereto and Citibank, N.A., as
Administrative Agent. This opinion is furnished to you at the
request of the Borrower pursuant to Section 2 of the Amendment
and Restatement. Unless otherwise defined herein or unless the
context otherwise requires, terms defined in the Amended and
Restated Agreement are used herein as therein defined.
In such capacity, I have examined:
(i) the Existing Agreement;
(ii) the Amendment and Restatement;
(iii) the Certificate of Incorporation of the Borrower and
all amendments thereto (the "Charter"); the by-laws of the
Borrower and all amendments thereto (the "ByLaws");
(iv) a certificate of the Secretary of State of the State of
Delaware, dated September __, 1999, attesting to the continued
corporate existence and good standing of the Borrower in that
State; and
(v) a copy of the Order, dated February 26, 1997, of the
Securities and Exchange Commission (File No. 70-8903) under the
Public Utility Holding Company Act of 1935 (the "SEC Order").
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 Amendment and Restatement and certificates
delivered upon the execution and delivery of the Amendment and
Restatement) and of appropriate public officials, without
independent verification of such matters except as otherwise
described herein.
Whenever my opinions herein with respect to the existence or
absence of facts are stated to be to my knowledge or awareness,
it is intended to signify that no information has come to my
attention or the attention of other counsel working under my
direction in connection with the preparation of this opinion
letter that would give me or them actual knowledge of the
existence or absence of such facts. However, except to the
extent expressly set forth herein, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to my or
their knowledge of the existence or absence of such facts should
be assumed.
On the basis of the foregoing, having regard for such legal
consideration as I deem relevant, and subject to the other
limitations and qualifications contained in this letter, I am of
the opinion that:
(a) 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.
(b) The execution, delivery and performance by the Borrower of
the Amendment and Restatement 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 Amendment and Restatement has
been duly executed and delivered on behalf of the Borrower.
(c) No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by
the Borrower of the Credit Agreement and the Notes, except for
the SEC Order, which has been obtained, is final and in full
force and effect, and is not the subject of any appeal.
(d) Except as disclosed in the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, and in the
Borrower's Quarterly Report on Form 10-Q for the periods ended
March 31, 1999 and June 30, 1999, respectively, there is no
pending or, to the best of my knowledge, threatened action or
proceeding affecting the Borrower or any of its subsidiaries
before any court, governmental agency or arbitrator that
reasonably could be expected to affect materially and adversely
the condition (financial or otherwise), operations, business,
properties or prospects of the Borrower or its ability to perform
its obligations under the Amended and Restated Agreement or any
Note, or that purports to affect the legality, validity, binding
effect or enforceability of the Amended and Restated Agreement or
any Note. To the best of my knowledge, after inquiry, there has
been no change in any matter disclosed in such filings that
reasonably could be expected to result in such a material adverse
effect.
(e) 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.
(f) The Amendment and Restatement and the Amended and Restated
Agreement 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:
(i) My opinions are subject, as to enforceability, to
(A) bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors rights generally and (B) 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.
(ii) My opinion in paragraph (a) 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.
(iii) My opinion set forth in paragraph (c) 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 Amendment and
Restatement.
(iv) My opinion in paragraph (f) above as to the legality,
validity, binding nature and enforceability of the Amendment and
Restatement and the Amended and Restated Agreement is given in
reliance upon a legal opinion of even date herewith of Xxxxxx
Xxxx & 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 Xxxxxx Xxxx &
Priest, LLP, is being provided to you contemporaneously herewith.
Notwithstanding the qualifications set forth above, I have no
actual knowledge of any matter within the scope of said
qualifications that would cause me to change the opinions set
forth in this letter.
I am licensed to practice law only in the States of
Louisiana and Mississippi and, except as otherwise provided
herein, my role as counsel to the Company is limited to matters
involving the laws of the State of Louisiana and the federal laws
of the United States of America. Except to the extent otherwise
expressly set forth herein, and except with respect to matters
governed by the General Corporation Law of Delaware, I render no
opinion on the laws of any other jurisdiction or any subdivision
thereof, and have made no independent investigation into any such
laws except as specifically provided herein.
My opinions are expressed as of the date hereof, and I do
not assume any obligation to update or supplement my opinions to
reflect any fact or circumstance that hereafter comes to my
attention, or any change in law that hereafter occurs.
This opinion letter is being provided exclusively to and for
the benefit of the addressees hereof. It is not to be furnished
to or relied upon by any other party for any other purpose,
without prior express written authorization from us, except that
(A) Xxxxxx Xxxx & Priest may rely hereon in connection with their
opinion to you of even date herewith on behalf of the Borrower as
to matters of New York law, (B) King & Spalding hereby is
authorized to rely on this letter in the rendering of their
opinion to the Lenders dated as of the date hereof; and any
addressee of this letter may deliver a copy hereof to any person
that becomes a Lender under the Amended and Restated Agreement
after the date hereof, and such person may rely on this opinion
as if it had been addressed and delivered to it on the date
hereof as an original Bank that was a party to the Amended and
Restated Agreement.
Very truly yours,
Xxx X. Xxx
EXHIBIT A-2
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE AGENT
[Date]
To each of the Lenders parties to the
Amended and Restated Agreement referred to below,
and to Citibank, N.A., as Administrative Agent
Re: Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A.,
individually and as Administrative Agent, in connection with the
preparation, execution and delivery of the Amendment and
Restatement, dated as of September 15, 1999 (the "Amendment and
Restatement"), to that certain Credit Agreement, dated as of
September 17, 1998 (the "Existing Agreement"; and as amended by
the Amendment and Restatement, the "Amended and Restated
Agreement"), by and among Entergy Corporation (the "Borrower"),
the Lenders parties thereto and Citibank, N.A., as Administrative
Agent. This opinion is furnished to you pursuant to Section 2 of
the Amendment and Restatement. Unless otherwise defined herein
or unless the context otherwise requires, terms defined in the
Amended and Restated Agreement are used herein as therein
defined.
In this connection, we have examined the following
documents:
1. the Existing Agreement;
2. a counterpart of the Amendment and Restatement, executed by
the parties thereto;
3. the other documents furnished to the Administrative Agent
pursuant to Section 2 of the Amendment and Restatement, including
(without limitation) the opinion (the "Opinion") of Xxx X. Xxx,
counsel to the Borrower.
In our examination of the documents referred to above, we
have assumed the authenticity of all such documents submitted to
us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that you have independently
evaluated, and are satisfied with, the creditworthiness of the
Borrower and the business terms reflected in the Amended and
Restated Agreement. We have relied, as to factual matters, on
the documents we have examined.
To the extent that our opinion expressed below involves
conclusions as to matters governed by law other than the law of
the State of New York, we have relied upon the Opinion and have
assumed without independent investigation the correctness of the
matters set forth therein, our opinion expressed below being
subject to the assumptions, qualifications and limitations set
forth in the Opinion.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the opinion that the
Amendment and Restatement and the Amended and Restated Agreement
are the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their
respective terms.
Our opinion is subject to the following qualifications:
(a) The enforceability of the Borrower's obligations under the
Amendment and Restatement and the Amended and Restated Agreement
is subject to the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
similar law affecting creditors' rights generally.
(b) The enforceability of the Borrower's obligations under the
Amendment and Restatement and the Amended and Restated Agreement
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 (A) Section 8.05 of the
Amended and Restated Agreement, (B) the enforceability of
provisions purporting to grant to a party conclusive rights of
determination, (C) the availability of specific performance or
other equitable remedies, (D) the enforceability of rights to
indemnity under federal or state securities laws or (E) the
enforceability of waivers by parties of their respective rights
and remedies under law.
(e) Our opinions expressed above are limited to the law of the
State of New York, and we do not express any opinion herein
concerning any other law.
The foregoing opinion is solely for your benefit and may
not be relied upon by any other person or entity, other than any
Person that may become a Lender under the Amended and Restated
Agreement after the date hereof.
Very truly yours,
MEO:PKS:jmc
