Exhibit B-1(a)
THIRTY-SECOND SUPPLEMENTARY CAPITAL FUNDS
AGREEMENT AND ASSIGNMENT
This Thirty-second Supplementary Capital Funds
Agreement and Assignment (hereinafter referred to as "this
Agreement") dated as of December 27, 1996, is made by and
between Entergy Corporation (formerly Middle South
Utilities, Inc.) ("Entergy"), System Energy Resources, Inc.
(formerly Middle South Energy, Inc.) (the "Company"), and
The Chase Manhattan Bank (as successor by merger with
Chemical Bank), as Administrating Bank (the "Administrating
Bank") under the Amended and Restated Reimbursement
Agreement dated as of December 1, 1988 (the "1988
Reimbursement Agreement"), as amended by a First Amendment
and Agreement to 1988 Reimbursement Agreement dated as of
January 11, 1991 ("First Amendment to 1988 Reimbursement
Agreement") and a Second Amendment and Agreement to 1988
Reimbursement Agreement dated as of December 17, 1993
("Second Amendment to 1988 Reimbursement Agreement") and as
amended and restated as of December 27, 1996 (the
Reimbursement Agreement as amended by the First Amendment to
1988 Reimbursement Agreement and the Second Amendment to
1988 Reimbursement Agreement and as amended and restated as
of the date hereof is herein called the "Amended
Reimbursement Agreement"), among the Company, The Bank of
Tokyo-Mitsubushi, Ltd., Los Angeles Branch (the "Funding
Bank"), the Administrating Bank, Union Bank of California,
N.A., as Documentation Agent, and the banks named therein
(the "Participating Banks").
WHEREAS:
A. Entergy and the Company are parties to a
Capital Funds Agreement dated as of June 21, 1974, as
amended by a First Amendment thereto dated June 1, 1989 (the
"Capital Funds Agreement").
B. Entergy owns all of the outstanding common
stock of the Company, and the Company has a 90% undivided
ownership and leasehold interest in Unit 1 of the Grand Gulf
Nuclear Electric Station project (more fully described in
the "Indenture" hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the
"Domestic Agent"), and said banks entered into an Amended
and Restated Bank Loan Agreement dated as of June 30, 1977
(the "Amended and Restated Agreement"), the First Amendment
thereto, dated as of March 20, 1980 (the "First Bank Loan
Amendment"), the Second Amended and Restated Bank Loan
Agreement dated as of June 15, 1981, as amended by the First
Amendment dated as of February 5, 1982 (as so amended, the
"Second Amended and Restated Bank Loan Agreement"), and the
Second Amendment of the Second Amended and Restated Bank
Loan Agreement, dated as of June 30, 1983 as further amended
by the Third Amendment thereto dated as of December 30, 1983
and the Fourth Amendment thereto dated as of June 28, 1984
(as so further amended, the "Second Bank Loan Second
Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the
aggregate principal amount of $565,000,000 and pursuant to
the First Supplementary Capital Funds Agreement and
Assignment (substantially in the form of this Agreement),
dated as of June 30, 1977 between Entergy, the Company and
the Domestic Agent (the "First Supplementary Capital Funds
Agreement"), the Company and Entergy supplemented their
undertakings under the Capital Funds Agreement for the
benefit of the Domestic Agent and such banks; (iii) the
First Bank Loan Amendment, among other things, increased the
amount of the loans made by the banks party thereto to
$808,000,000 and pursuant to the Fourth Supplementary
Capital Funds Agreement and Assignment (also substantially
in the form of this Agreement) dated as of March 20, 1980
(the "Fourth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the
Domestic Agent and the banks under the Amended and Restated
Agreement as amended by the First Bank Loan Agreement;
(iv) the Second Amended and Restated Bank Loan Agreement
provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the
Company from time to time in an aggregate amount not in
excess of $1,311,000,000 at any one time outstanding, and
(b) the making of a term loan by said banks to the Company
in an aggregate amount not to exceed $1,311,000,000, and,
pursuant to the Fifth Supplementary Capital Funds Agreement
and Assignment (also substantially in the form of this
Agreement), dated as of June 15, 1981 (the "Fifth
Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the
Capital Funds Agreement for the Domestic Agent and the banks
under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the
banks party thereto to $1,711,000,000 and pursuant to the
Eighth Supplementary Capital Funds Agreement and Assignment
(also substantially in the form of this Agreement) dated as
of June 30, 1983 (the "Eighth Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Domestic Agent and the banks under the Second Amended and
Restated Bank Loan Agreement, as amended by the Second Bank
Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees for the holders of $400,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 9.25% Series
due 1989 (the "First Series Bonds") issued under a Mortgage
and Deed of Trust dated as of June 15, 1977, between the
Company and United States Trust Company of New York and
Xxxxxxx X. Xxxx (Xxxxxx X. Xxxxx, successor), as trustees
(the "Trustees") (the "Mortgage"), as supplemented by a
First Supplemental Indenture dated as of June 15, 1977,
between the Company and the Trustees (the Mortgage, as so
supplemented and as supplemented by a Second Supplemental
Indenture dated as of January 1, 1980, a Third Supplemental
Indenture dated as of June 15, 1981, a Fourth Supplemental
Indenture dated as of June 1, 1984, a Fifth Supplemental
Indenture dated as of December 1, 1984, a Sixth Supplemental
Indenture dated as of May 1, 1985, a Seventh Supplemental
Indenture dated as of June 15, 1985, an Eighth Supplemental
Indenture dated as of May 1, 1986, a Ninth Supplemental
Indenture dated as of May 1, 1986, a Tenth Supplemental
Indenture dated as of September 1, 1986, an Eleventh
Supplemental Indenture dated as of September 1, 1986, a
Twelfth Supplemental Indenture dated as of September 1,
1986, a Thirteenth Supplemental Indenture dated as of
November 15, 1987, a Fourteenth Supplemental Indenture dated
as of December 1, 1987, a Fifteenth Supplemental Indenture
dated as of July 1, 1992, a Sixteenth Supplemental Indenture
dated as of October 1, 1992, a Seventeenth Supplemental
Indenture dated as of October 1, 1992 and an Eighteenth
Supplemental Indenture dated as of April 1, 1993, and as the
same may from time to time hereafter be amended and
supplemented in accordance with its terms, being hereinafter
called the "Indenture"), entered into the Second
Supplementary Capital Funds Agreement and Assignment dated
as of June 30, 1977 (the "Second Supplementary Capital Funds
Agreement") (substantially in the form of this Agreement) to
secure the First Series Bonds; (ii) Entergy, the Company,
and the Trustees, as trustees for the holders of $98,500,000
aggregate principal amount of the Company's First Mortgage
Bonds, 12.50% Series due 2000 (the "Second Series Bonds")
issued under the Mortgage, as supplemented by a Second
Supplemental Indenture dated as of January 1, 1980 between
the Company and the Trustees, entered into the Third
Supplementary Capital Funds Agreement and Assignment dated
as of January 1, 1980 (the "Third Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Second Series Bonds; (iii) Entergy,
the Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's
First Mortgage Bonds, 16% Series due 2000 (the "Third Series
Bonds") issued under the Mortgage, as supplemented by a
Fifth Supplemental Indenture dated as of December 1, 1984
between the Company and the Trustees, entered into the
Eleventh Supplementary Capital Funds Agreement and
Assignment dated as of December 1, 1984 (the "Eleventh
Supplementary Capital Funds Agreement") (also substantially
in the form of this Agreement) to secure the Third Series
Bonds; (iv) Entergy, the Company and the Trustees, as
trustees for the holders of $100,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 15.375% Series
due 2000 (the "Fourth Series Bonds") issued under the
Mortgage, as supplemented by a Sixth Supplemental Indenture,
dated as of May 1, 1985 between the Company and the
Trustees, entered into the Thirteenth Supplementary Capital
Funds Agreement and Assignment dated as of May 1, 1985 (the
"Thirteenth Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the
Fourth Series Bonds; (v) Entergy, the Company and the
Trustees, as trustees for the holders of $300,000,000
aggregate principal amount of the Company's First Mortgage
Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth
Supplementary Capital Funds Agreement and Assignment dated
as of May 1, 1986 (the "Sixteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Seventh Series Bonds; (vi) Entergy,
the Company, and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's
First Mortgage Bonds, 9 7/8% Series due 1991 (the "Eighth
Series Bonds") issued under the Mortgage, as supplemented by
a Tenth Supplemental Indenture, dated as of September 1,
1986 between the Company and the Trustees, entered into the
Seventeenth Supplementary Capital Funds Agreement and
Assignment dated as of September 1, 1986 (the "Seventeenth
Supplementary Capital Funds Agreement") (also substantially
in the form of this Agreement) to secure the Eighth Series
Bonds; (vii) Entergy, the Company and the Trustees, as
trustees for the holders of $250,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 10 1/2% Series
due 1996 (the "Ninth Series Bonds") issued under the
Mortgage, as supplemented by an Eleventh Supplemental
Indenture, dated as of September 1, 1986 between the Company
and the Trustees, entered into the Eighteenth Supplementary
Capital Funds Agreement and Assignment dated as of
September 1, 1986 (the "Eighteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Ninth Series Bonds; (viii) Entergy,
the Company and the Trustees, as trustees for the holders of
$200,000,000 aggregate principal amount of the Company's
First Mortgage Bonds, 11 3/8% Series due 2016 (the "Tenth
Series Bonds") issued under the Mortgage, as supplemented by
a Twelfth Supplemental Indenture, dated as of September 1,
1986 between the Company and the Trustees, entered into the
Nineteenth Supplementary Capital Funds Agreement and
Assignment dated as of September 1, 1986 (the "Nineteenth
Supplementary Capital Funds Agreement") (also substantially
in the form of this Agreement) to secure the Tenth Series
Bonds; (ix) Entergy, the Company and the Trustees, as
trustees for the holders of $200,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 14% Series due
1994 (the "Eleventh Series Bonds") issued under the
Mortgage, as supplemented by a Thirteenth Supplemental
Indenture dated as of November 15, 1987 between the Company
and the Trustees, entered into the Twentieth Supplementary
Capital Funds Agreement and Assignment dated as of
November 15, 1987 (the "Twentieth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Eleventh Series Bonds; (x) Entergy,
the Company and the Trustees, as trustees for the holders of
$100,000,000 aggregate principal amount of the Company's
First Mortgage Bonds, 14.34% Series due 1992 (the "Twelfth
Series Bonds") issued under the Mortgage, as supplemented by
a Fourteenth Supplemental Indenture dated as of December 1,
1987 between the Company and the Trustees, entered into the
Twenty-first Supplementary Capital Funds Agreement and
Assignment dated as of December 1, 1987 (the "Twenty-first
Supplementary Capital Funds Agreement") (also substantially
in the form of this Agreement) to secure the Twelfth Series
Bonds; (xi) Entergy, the Company and the Trustees, as
trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series
due 2002 (the "Thirteenth Series Bonds") issued under the
Mortgage, as supplemented by a Fifteenth Supplemental
Indenture dated as of July 1, 1992 between the Company and
the Trustees, entered into the Twenty-fourth Supplementary
Capital Funds Agreement and Assignment dated as of July 1,
1992 (the "Twenty-fourth Supplementary Capital Funds
Agreement") (also substantially in the form of this
Agreement) to secure the Thirteenth Series Bonds;
(xii) Entergy, the Company and the Trustees, as trustees for
the holders of $105,000,000 aggregate principal amount of
the Company's First Mortgage Bonds, 6.12% Series due 1995
(the "Fourteenth Series Bonds") issued under the Mortgage,
as supplemented by a Sixteenth Supplemental Indenture dated
as of October 1, 1992 between the Company and the Trustees,
entered into the Twenty-fifth Supplementary Capital Funds
Agreement and Assignment dated as of October 1, 1992 (the
"Twenty-fifth Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the
Fourteenth Series Bonds; (xiii) Entergy, the Company and the
Trustees, as trustees for the holders of $70,000,000
aggregate principal amount of the Company's First Mortgage
Bonds, 8.25% Series due 2002 (the "Fifteenth Series Bonds")
issued under the Mortgage, as supplemented by a Seventeenth
Supplemental Indenture dated as of October 1, 1992 between
the Company and the Trustees, entered into the Twenty-sixth
Supplementary Capital Funds Agreement and Assignment dated
as of October 1, 1992 (the "Twenty-sixth Supplementary
Capital Funds Agreement") (also substantially in the form of
this Agreement) to secure the Fifteenth Series Bonds;
(xiv) Entergy, the Company and the Trustees, as trustees for
the holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6% Series due 1998 (the
"Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated
as of April 1, 1993 between the Company and the Trustees,
entered into the Twenty-seventh Supplementary Capital Funds
Agreement and Assignment dated as of April 1, 1993 (the
"Twenty-seventh Supplementary Capital Funds Agreement")
(also substantially in the form of this Agreement) to secure
the Sixteenth Series Bonds; (xv) Entergy, the Company and
the Trustees, as trustees for the holders of $60,000,000
aggregate principal amount of the Company's First Mortgage
Bonds, 7.58% Series due 1999 (the "Seventeenth Series
Bonds") issued under the Mortgage, as supplemented by a
Nineteenth Supplemental Indenture dated as of April 1, 1994
between the Company and the Trustees, entered into the
Twenty-ninth Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1994 (the "Twenty-ninth
Supplementary Capital Funds Agreement") (also substantially
in the form of this Agreement) to secure the Seventeenth
Series Bonds; (xvi) Entergy, the Company and the Trustees,
as trustees for the holders of $100,000,000 aggregate
principal amount of the Company's First Mortgage Bonds,
7.28% Series due 1999 (the "Eighteenth Series Bonds") issued
under the Mortgage, as supplemented by a Twentieth
Supplemental Indenture dated as of August 1, 1996 between
the Company and the Trustees, entered into the Thirtieth
Supplementary Capital Funds Agreement and Assignment dated
as of August 1, 1996 (the "Thirtieth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Eighteenth Series Bonds; and
(xvii) Entergy, the Company and the Trustees, as trustees
for the holders of $135,000,000 aggregate principal amount
of the Company's First Mortgage Bonds, 7.7% Series due 2000
(the "Nineteeth Series Bonds") issued under the Mortgage, as
supplemented by a Twenty-first Supplemental Indenture dated
as of August 1, 1996 between the Company and the Trustees,
entered into the Thirty-first Supplementary Capital Funds
Agreement and Assignment dated as of August 1, 1996 (the
"Thirty-first Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the
Nineteenth Series Bonds.
E. The Company, Credit Suisse First Boston
Limited, as agent for certain banks (the "Eurodollar Agent")
and said banks (including successors and assignees and such
other banks as became party to the Loan Facility as defined
below, the "Eurodollar Banks") were parties to the Loan
Agreement (the "Original Eurodollar Loan Agreement") dated
February 5, 1982, as amended, the "Loan Facility"). Under
the Original Eurodollar Loan Agreement the banks party
thereto made loans to the Company in the aggregate principal
amount of $315,000,000 and pursuant to the Sixth
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the
Eurodollar Agent (the "Sixth Supplementary Capital Funds
Agreement"), the Company and Entergy supplemented their
undertakings under the Capital Funds Agreement for the
benefit of the Eurodollar Agent and said banks. The
Company, the Eurodollar Agent and the Eurodollar Banks were
parties to the First Amendment dated as of February 18, 1983
to the Loan Facility which, among other things, increased
the amount of the loans to be made by the Eurodollar Banks
to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially
in the form of this Agreement) dated as of February 18, 1983
(the "Seventh Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the
Eurodollar Agent and the Eurodollar Banks.
F. The Company and Citibank, N.A. (the "Bank")
were parties to a letter of credit and reimbursement
agreement dated as of December 1, 1983 (the "Series A
Reimbursement Agreement") which provided, among other
things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds
(Middle South Energy, Inc. Project) Series A (the "Series A
Bonds"), issued by Claiborne County, Mississippi pursuant to
a trust indenture dated as of December 1, 1983 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Ninth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of
December 1, 1983 (the "Ninth Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and Citibank, N.A. (the "Bank")
were parties to a letter of credit and reimbursement
agreement dated as of June 1, 1984 (the "Series B
Reimbursement Agreement") which provided, among other
things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds
(Middle South Energy, Inc. Project) Series B (the "Series B
Bonds"), issued by Claiborne County, Mississippi pursuant to
a trust indenture dated as of June 1, 1984 naming Deposit
Guaranty National Bank as trustee. Pursuant to the Tenth
Supplementary Capital Funds Agreement (also substantially in
the form of this Agreement) dated as of June 1, 1984 (the
"Tenth Supplementary Capital Funds Agreement"), Entergy and
the Company further supplemented their undertakings under
the Capital Funds Agreement for the Bank and Deposit
Guaranty National Bank as trustee under the indenture
relating to the Series B Bonds.
H. The Company, Citibank, N.A. as a Co-Agent and
as Coordinating Agent, and Manufacturers Hanover Trust
Company, as a Co-Agent for a group of banks (the "Banks")
were parties to a letter of credit and reimbursement
agreement dated as of December 1, 1984 (the "Series C
Reimbursement Agreement") which provided, among other
things, for the issuance by the Banks for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds
(Middle South Energy, Inc. Project) Series C (the "Series C
Bonds"), issued by Claiborne County, Mississippi pursuant to
a trust indenture dated as of December 1, 1984 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Twelfth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of
December 1, 1984 (the "Twelfth Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under
the indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $47,208,334 aggregate
principal amount of the Company's First Mortgage Bonds,
Pollution Control Series A (the "Fifth Series Bonds") issued
under the Mortgage, as supplemented by a Seventh
Supplemental Indenture dated as of June 15, 1985 between the
Company and the Trustees, entered into the Fourteenth
Supplementary Capital Funds Agreement and Assignment dated
as of June 15, 1985 (the "Fourteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Fifth Series Bonds. The Fifth
Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control
Revenue Bonds due 2015 (Middle South Energy, Inc. Project)
(the "Series D Bonds"), issued by Claiborne County,
Mississippi pursuant to a trust indenture dated as of
June 15, 1985 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Fourteenth Supplementary Capital
Funds Agreement, Entergy and the Company further
supplemented their undertakings under the Capital Funds
Agreement for the Trustees and Deposit Guaranty National
Bank as trustee under the indenture relating to the Series D
Bonds.
J. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $95,643,750 aggregate
principal amount of the Company's First Mortgage Bonds,
Pollution Control Series B (the "Sixth Series Bonds") issued
under the Mortgage, as supplemented by an Eighth
Supplemental Indenture dated as of May 1, 1986 between the
Company and the Trustees, entered into the Fifteenth
Supplementary Capital Funds Agreement and Assignment dated
as of May 1, 1986 (the "Fifteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Sixth Series Bonds. The Sixth
Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control
Revenue Bonds due 2016 (Middle South Energy, Inc. Project)
(the "Series E Bonds"), issued by Claiborne County,
Mississippi pursuant to a trust indenture dated as of May 1,
1986 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Fifteenth Supplementary Capital Funds
Agreement, Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Trustees and Deposit Guaranty National Bank as trustee under
the indenture relating to the Series E Bonds.
K. The Company has entered into a sale and
leaseback transaction with respect to a portion of its
undivided interest in Unit No. 1 and to that end the Company
has entered into, among other agreements, (i) Facility
Leases Nos. 1 and 2, dated as of December 1, 1988, among
Meridian Trust Company and Xxxxxxx X. Xxxxx (Xxxxxxx X.
Xxxx, successor) (collectively, the "Owner Trustee") as
Owner Trustee and the Company, each as supplemented by a
separate Lease Supplement No. 1 thereto, each dated as of
Xxxxx 0, 0000, (xx) a Participation Agreement No. 1, dated
as of December 1, 1988 among Public Service Resources
Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation, as
Funding Corporation, the Owner Trustee and the Company
pursuant to which PSRC invested $400,000,000 in an undivided
interest in Unit No. 1 (which interest was subsequently
acquired by Resources Capital Management Corporation from
PSRC and subsequently acquired by RCMC Del., Inc. from
Resources Capital Management Corporation), and a
Participation Agreement No. 2, dated as of December 1, 1988
among Lease Management Realty Corporation IV ("LMRC") as
Owner Participant, the Loan Participants listed therein,
GGIA Funding Corporation, as Funding Corporation, the Owner
Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all
such participation agreements being referred to as the
"Owner Participants") and (iii) the 1988 Reimbursement
Agreement which provided, among other things, (x) for the
issuance by the Funding Bank named therein ("1988 Funding
Bank"), for the account of the Company, of irrevocable
transferable letters of credit (the "1988 LOCS") to the
Owner Participants to secure certain obligations of the
Company to the Owner Participants substantially in the form
of Exhibit A to the 1988 Reimbursement Agreement with
maximum amounts of $104,000,000, and $26,000,000, (y) for
the reimbursement to such 1988 Funding Bank by the
Participating Banks for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the
Participating Banks of sums equal to all drafts paid by such
1988 Funding Bank under any 1988 LOCS. Pursuant to the
Twenty-second Supplementary Capital Funds Agreement and
Assignment (substantially in the form of this Agreement),
dated as of December 1, 1988 (the "Twenty-second
Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the
Capital Funds Agreement for the benefit of the
Administrating Bank, such 1988 Funding Bank and the
Participating Banks.
L. Entergy, the Company and Chemical Bank entered
into the Twenty-third Supplementary Capital Funds Agreement
dated as of January 11, 1991 ("Twenty-third Supplementary
Capital Funds Agreement") in connection with the execution
and delivery of the First Amendment to 1988 Reimbursement
Agreement (the 1988 Reimbursement Agreement, as amended by
the First Amendment to 1988 Reimbursement Agreement, is
herein called the "1991 Reimbursement Agreement") that
provided, among other things, (i) for the issuance by the
Funding Bank, for the account of the Company, of irrevocable
transferable letters of credit ("1991 LOCS") to the Owner
Participants to secure certain obligations of the Company to
the Owner Participants, substantially in the form of
Exhibit A to the 1991 Reimbursement Agreement, with maximum
amounts of $116,601,440 and $29,150,360; (ii) for the
reimbursement to the Funding Bank by the Participating Banks
for all drafts paid by the Funding Bank under any 1991 LOC;
and (iii) for the reimbursement by the Company to the
Funding Bank for the benefit of the Participating Banks of
sums equal to all drafts paid by the Funding Bank under any
1991 LOC.
M. Entergy, the Company and Chemical Bank entered
into the Twenty-eighth Supplementary Capital Funds Agreement
dated as of December 17, 1993 ("Twenty-eighth Supplementary
Capital Funds Agreement") in connection with the execution
and delivery of the Second Amendment to 1988 Reimbursement
Agreement (the 1988 Reimbursement Agreement, as amended by
the Second Amendment to 1988 Reimbursement Agreement, is
herein called the "1993 Reimbursement Agreement") that
provided, among other things, (i) for the issuance by the
Funding Bank, for the account of the Company, of irrevocable
transferable letters of credit ("1993 LOCS") to the Owner
Participants to secure certain obligations of the Company to
the Owner Participants, substantially in the form of
Exhibit A to the 1993 Reimbursement Agreement, with maximum
amounts of $132,131,960 and $33,032,990; (ii) for the
reimbursement to the Funding Bank by the Participating Banks
for all drafts paid by the Funding Bank under any 1993 LOC;
and (iii) for the reimbursement by the Company to the
Funding Bank for the benefit of the Participating Banks of
sums equal to all drafts paid by the Funding Bank under any
1993 LOC.
N. The Company wishes to amend the 1993
Reimbursement Agreement in the manner provided in the
Amended Reimbursement Agreement and to provide for the
cancellation of the 1993 LOCs and issuance of new LOCs (the
"New LOCS") by the Funding Bank to further secure the Owner
Participants. The Amended Reimbursement Agreement provides,
among other things, (i) for the issuance by the Funding
Bank, for the account of the Company, of irrevocable
transferable letters of credit to the Owner Participants to
secure certain obligations of the Company to the Owner
Participants, such New LOCs to be substantially in the form
of Exhibit A to the Amended Reimbursement Agreement with
maximum amounts of $148,719,045.41 and $34,946,720.11;
(ii) for the reimbursement to the Funding Bank by the
Participating Banks for all drafts paid by the Funding Bank
under any New LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the
Participating Banks of sums equal to all drafts paid by the
Funding Bank under any New LOC (such amounts shall
hereinafter be called the "Reimbursement Obligations").
O. The Company and Entergy, by this instrument,
wish (i) to continue to supplement their undertakings under
the Capital Funds Agreement for the benefit of the Funding
Bank, the Administrating Bank and the Participating Banks
(collectively, the "LOC Banks") and (ii) to create
enforceable rights hereunder in the Administrating Bank as
hereinafter set forth.
P. The Company, Entergy and certain other
subsidiaries of Entergy have joined in an Application-
Declaration on Form U-1, as amended and supplemented to
date, in File No. 70-7561, filed with the Securities and
Exchange Commission under the Public Utility Holding Company
Act of 1935 with respect to this Agreement and certain other
matters, the Securities and Exchange Commission has issued
orders (the "SEC Orders") granting and permitting to become
effective said Application-Declaration, as so amended and
supplemented, and the SEC Orders are in full force and
effect on the date of the execution and delivery hereof.
Q. All things necessary to make this Agreement
the valid, legally binding and enforceable obligation of
each of the parties hereto have been done and performed and
the execution and performance hereof in all respects have
been authorized and approved by all corporate and
shareholder action necessary on the part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with
each other as follows:
ARTICLE I
Obligations of Entergy and the Company
1.1. Commercial Operation of the Project. The
Company shall (and Entergy shall cause the Company to) use
its best efforts to maintain the Project in commercial
operation and, in connection therewith, take all such
action, including, without limitation, all actions before
governmental authorities, as shall be necessary to enable
the Company to do so.
1.2. Capital Structure of the Company. Entergy
shall supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required
from time to time by the Company in order to maintain that
portion of the Capitalization (as defined in Section 1.6
hereof) of the Company as shall be represented by the
aggregate of the par value of, or stated capital represented
by, the outstanding shares of all classes of capital stock
and the surplus of the Company, paid in, earned and other,
if any, at an amount equal to at least 35% of the
Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction
in the premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy
in exchange for shares of the Company's common stock and
(ii) the capital made available to the Company at any time
in question through the incurrence by the Company of
Indebtedness for Borrowed Money (as defined in Section 1.6
hereof) as shall be required in order for the Company to
continue to own its undivided ownership interest in the
Project, to provide (without limitation) for interest
charges of the Company, to permit the commercial operation
of Unit No. 1, to permit the continuation of such commercial
operation and to pay in full all payments of the principal
of, and premium, if any, and interest on Indebtedness for
Borrowed Money (whether due at maturity, pursuant to
mandatory or optional prepayment, by acceleration or
otherwise), it being understood and agreed that, in
connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor)
and the entering into by the Company of industrial
development revenue bond financing with respect to pollution
control facilities and the issuance and sale by the Company
of debt securities, and, to the extent necessary or
desirable, preferred stock, to banks, institutions and the
public may constitute some of the means by which required
capital can be made available to the Company.
1.3. Manner of Performance. If, with respect to
any amount of capital which Entergy shall, at any time in
question, be obligated under the provisions of Section 1.2
to supply or cause to be supplied to the Company, Entergy
and the Company shall fail to agree on the type, or terms,
of any particular security to be issued by the Company and
sold to Entergy or to others for the purpose of securing
such required capital or if requisite regulatory approvals
are not obtained for any issuance and sale so agreed upon or
if such issuance and sale cannot for any other reason be
carried out, then and in such event, Entergy shall supply
such capital to the Company in the form of a cash capital
contribution.
1.4. Payments in Respect of the Reimbursement
Obligations. If at any time the Company shall require funds
to pay the interest (including, if and to the extent
permitted by law, interest on overdue principal, premium and
interest) and premium, if any, on, and the principal of, the
Reimbursement Obligations (whether at maturity, pursuant to
mandatory or optional prepayment, by acceleration or
otherwise) and the expenses, commitment fees, financing
charges, trustees' fees and administration expenses
attributable to the Reimbursement Obligations, and the funds
of the Company available for such purpose or purposes shall
be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of,
funds under any local agreement or similar instrument or
instruments to which the Company is now or hereafter becomes
a party, Entergy will pay to the Company in cash as a
capital contribution the funds necessary to enable the
Company to pay the amounts referred to above in this
Section 1.4.
1.5. Subordination of Claims of Entergy Against
the Company. Entergy hereby agrees that (i) all amounts
advanced by Entergy to the Company (other than by way of
purchases of capital stock of the Company or capital
contributions to the Company) shall, for the purposes of
this Agreement and so long as this Agreement shall be in
full force and effect, constitute Subordinated Indebtedness
of the Company (as defined in Section 1.6 hereof) and
(ii) no such Subordinated Indebtedness of the Company shall
be transferred or assigned (including by way of security) to
any person (other than to a successor of Entergy by way of
merger or consolidation or the acquisition by such person of
all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of
the Company as such on its books.
1.6. Definitions. For the purposes of this
Agreement, the following terms shall have the following
meanings:
(a) the term "Capitalization" shall mean, as of
any particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of
the Company (exclusive of Short Term Debt), secured or
unsecured, then outstanding, and the aggregate of the par
value of, or stated capital represented by, the outstanding
shares of all classes of capital stock of the Company and
the surplus of the Company, paid in, earned and other, if
any;
(b) the term "Indebtedness for Borrowed Money"
shall mean the principal amount of all indebtedness for
borrowed money, secured or unsecured, of the Company then
outstanding and shall include, without limitation, the
principal amount of all bonds issued by a governmental or
industrial development agency or authority in connection
with an industrial development revenue bond financing of
pollution control facilities constituting part of the
Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed
Money created or incurred by the Company which matures by
its terms not more than 12 months after the date of the
creation or incurrence thereof, and which is not renewable
or extendable at the option of the Company for a period of
more than 12 months from the date of the creation or
incurrence thereof pursuant to any revolving credit or
similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to
the Obligations Secured Hereby (as defined in Section 5.1
hereof) to the extent and in the manner set forth below:
(i) if there shall occur a Reimbursement
Event of Default or Prepayment Event (as defined in the
Amended Reimbursement Agreement), then so long as such
Reimbursement Event of Default or Prepayment Event shall be
continuing and shall not have been cured or waived, or
unless and until all the Obligations Secured Hereby shall
have been paid in full in money or money's worth at the time
of receipt, no payment of principal and premium, if any, or
interest shall be made upon Subordinated Indebtedness of the
Company; and
(ii) in the event of any insolvency,
bankruptcy, liquidation, reorganization or other similar
case or proceedings, or any receivership proceedings in
connection therewith, relative to the Company or its
creditors or its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then the Obligations
Secured Hereby shall first be paid in full in money or
money's worth at the time of receipt, or payment thereof
shall have been provided for, before any payment on account
of principal, premium, if any, or interest is made upon
Subordinated Indebtedness of the Company.
ARTICLE II
Nature of the Obligations of
Entergy and the Company
2.1. Regulatory Approvals.
(a) Except as provided in Section 2.2 with
respect to the obligations of Entergy to make cash capital
contributions to the Company pursuant to the provisions of
Sections 1.3 and 1.4 (as to which the SEC Orders are in full
force and effect at the date of execution and delivery of
this Agreement), the performance of the obligations of
Entergy hereunder shall be subject to the receipt and
continued effectiveness of all authorizations of
governmental regulatory authorities necessary at the time to
permit Entergy at the time to perform its duties and
obligations then to be performed hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental authorities necessary at the time to permit
Entergy at the time to supply or cause to be supplied to the
Company capital pursuant to the provisions of Section 1.2 or
to permit Entergy at the time to acquire securities issued
and sold to Entergy by the Company.
(b) The performance of the obligations of the
Company hereunder shall be subject to the receipt and
continued effectiveness of all authorizations of
governmental regulatory authorities at the time necessary to
permit the Company to perform its duties and obligations
hereunder, including the receipt and continued effectiveness
of all authorizations of governmental regulatory authorities
at the time necessary to permit the Company to operate the
Project (or to have the Project operated for it) to the
extent the Project is then operable, and to issue and to
sell securities then to be issued and sold by the Company to
Entergy or to others for the purpose of securing required
capital.
(c) Entergy and the Company shall use their best
efforts to secure and maintain all such authorizations of
governmental regulatory authorities.
2.2. Nature of Obligations.
(a) The obligations of Entergy hereunder to make
cash capital contributions to the Company pursuant to the
provisions of Sections 1.3 and 1.4 having heretofore been
authorized by the SEC Orders (and no other authorization by
any governmental regulatory authority being required) and
the LOC Banks having relied on such authorization in
entering into the Amended Reimbursement Agreement, Entergy
agrees that its duty to perform such obligations shall be
absolute and unconditional, (a) whether or not Entergy shall
have received all authorizations of governmental regulatory
authorities necessary at the time to permit Entergy to
perform its other duties and obligations hereunder,
(b) whether or not the Company shall have received all
authorizations of governmental regulatory authorities
necessary at the time to permit the Company to perform its
duties and obligations hereunder, (c) whether or not any
authorizations referred to in the foregoing clauses (a) and
(b) continue, at the time, in effect, (d) whether or not, at
any time in question, the Company shall have performed its
duties and obligations under this Agreement, (e) whether or
not the Project shall be maintained in commercial operation,
energy from the Project is being produced or delivered or is
available (including, without limitation, delivery or
availability to other subsidiaries of Entergy), an
abandonment of the Project shall have occurred or the
Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (f) whether or not the Company shall
be solvent, (g) regardless of any event of force majeure and
(h) regardless of any other circumstance, happening,
condition or event whatsoever, whether or not similar to any
of the foregoing. Subject to Section 2.1(a), all other
obligations of Entergy hereunder are similarly absolute and
unconditional.
(b) In the event that Entergy shall cease to own
at least a majority of common stock of the Company and such
lower ownership percentage has been permitted pursuant to
the consent of the LOC Banks, the obligations of Entergy
hereunder shall not be increased by any amendment to, or
modification of, the terms and provisions of the Amended
Reimbursement Agreement unless Entergy shall have consented
in writing to such amendment or modification.
2.3. Waivers of Defenses. The obligations of
Entergy under Sections 1.2, 1.3 and 1.4 to supply capital or
cause capital to be supplied or to make cash capital
contributions to the Company shall not be subject to any
abatement, reduction, limitation, impairment, termination,
set-off, defense, counterclaim or recoupment whatsoever or
any right to any thereof (including, but not limited to,
abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and
recoupments for or on account of any past, present or future
indebtedness of the Company to Entergy or any claim by
Entergy against the Company, whether or not arising under
this Agreement and whether or not arising out of any action
or nonaction on the part of the Company, or any LOC Bank,
including any disposition of the Project or any part thereof
pursuant to the Indenture, requirements of governmental
authorities, actions of judicial receivers or trustees or
otherwise and whether or not arising from wilful or
negligent acts or omissions). The foregoing, however, shall
not, subject to the provisions of Section 1.5 hereof, affect
in any other way any rights and remedies of Entergy with
respect to any amounts owed to Entergy by the Company or any
such claim by Entergy against the Company. The obligations
and liabilities of Entergy hereunder shall not be released,
discharged or in any way affected by any reorganization,
arrangement, compromise, composition or plan affecting the
Company or any change, waiver, extension, indulgence or
other action or omission in respect of any indebtedness or
obligation of the Company or Entergy, whether or not the
Company or Entergy shall have had any notice or knowledge of
any of the foregoing. Neither failure nor delay by the
Company or the LOC Banks to exercise any right or remedy
provided herein or by statute or at law or in equity shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such right or remedy preclude any other or
further exercise thereof, or the exercise of any other right
or remedy. Entergy also hereby irrevocably waives, to the
extent that it may do so under applicable law, any defense
based on the adequacy of a remedy at law which may be
asserted as a bar to the remedy of specific performance in
any action brought against Entergy for specific performance
of this Agreement by the Company or by the LOC Banks or for
their benefit by a receiver or trustee appointed for the
Company or in respect of all or a substantial part of the
Company's assets under the bankruptcy or insolvency law of
any jurisdiction to which the Company is or its assets are
subject. Anything in this Section 2.3 to the contrary
notwithstanding, Entergy shall not be precluded from
asserting as a defense against any claim made against
Entergy upon any of its obligations hereunder that it has
fully performed such obligation in accordance with the terms
of this Agreement.
2.4. Subrogation, Etc. Entergy shall, subject to
the provisions of Section 1.5, be subrogated to all rights
of the LOC Banks against the Company in respect of any
amounts paid by Entergy pursuant to the provisions of this
Agreement and applied to the payment of the Obligations
Secured Hereby (as defined in Section 5.1 hereof). The LOC
Banks agree that they will not deal with the Company in such
a manner as to prejudice such rights of Entergy.
ARTICLE III
Term
This Agreement shall remain in full force and
effect until, and shall terminate and be of no further force
and effect after, all Obligations Secured Hereby shall have
been paid in full in money or money's worth at the time of
receipt. It is agreed that all the covenants and
undertakings on the part of Entergy and the Company set
forth in this Agreement are exclusively for the benefit of,
and may be enforced only by, the LOC Banks as provided in
the Amended Reimbursement Agreement, or for their benefit by
a receiver or trustee for the Company or in respect of all
or a substantial part of its assets under the bankruptcy or
insolvency law of any jurisdiction to which the Company is
or its assets are subject.
ARTICLE IV
Assignment
Neither this Agreement nor any interest herein may
be assigned, transferred or encumbered by any of the parties
hereto, except transfer or assignment by the LOC Banks to
their successors in accordance with Section 23(b) of the
Amended Reimbursement Agreement, except as otherwise
provided in Article V hereof and except that:
(i) in the event that Entergy shall consolidate
with or merge with or into another corporation or shall
transfer to another corporation or other person all or
substantially all of its assets, this Agreement shall be
transferred by Entergy to and shall be binding upon the
corporation resulting from such consolidation or merger or
the corporation or other person to which such transfer is
made and, as a condition to such consolidation, merger or
other transfer, such corporation or other person shall
deliver to the Company and the Administrating Bank a written
assumption, in form and substance satisfactory to the
Administrating Bank, of Entergy's obligations and
liabilities under this Agreement and an opinion of counsel
to the effect that such instrument complies with the
requirements hereof and constitutes a valid, legally binding
and enforceable obligation of such corporation or other
person; and
(ii) in the event that the Company shall
consolidate with or merge with or into another corporation
or shall transfer to another corporation or other person all
or substantially all of its assets, this Agreement shall be
transferred by the Company to and shall be binding upon the
corporation resulting from such consolidation or merger or
the corporation or other person to which such transfer is
made and, as a condition to such consolidation, merger or
other transfer, such corporation or other person shall
deliver to the Administrating Bank a written assumption, in
form and substance satisfactory to the Administrating Bank,
of the Company's obligations and liabilities under this
Agreement and an opinion of counsel to the effect that such
instrument complies with the requirements hereof and
constitutes a valid, legally binding and enforceable
obligation of such corporation or other person.
ARTICLE V
Security Assignment and Agreement
5.1. Assignment and Creation of Security
Interest. As security for (i) the due and punctual payment
of the interest (including, if and to the extent permitted
by law, interest on overdue principal, premium and interest)
and premium, if any, on, and the principal of, the
Reimbursement Obligations (whether at the stated maturity
thereof, pursuant to mandatory or optional prepayment, by
acceleration or otherwise) and (ii) the due and punctual
payment of all fees and costs, expenses and other amounts
which may become payable by the Company under the Amended
Reimbursement Agreement, together in each case with all
costs of collection thereof (all such amounts referred to in
the foregoing clauses (i) and (ii) being hereinafter
collectively referred to as "Obligations Secured Hereby"),
the Company hereby assigns to the Administrating Bank and
creates a security interest in favor of the Administrating
Bank, for the benefit of the LOC Banks, in (x) all of the
Company's rights to receive all moneys paid, or caused to be
paid, or to be paid or to be caused to be paid, to the
Company by Entergy pursuant to Section 1.4 of this
Agreement, and (y) all other claims, rights (but not
obligations or duties), powers, privileges, interests and
remedies of the Company (including, without limitation, all
of the Company's rights to receive all moneys paid, or
caused to be paid, or to be paid, or to be caused to be
paid, to the Company by Entergy pursuant to Sections 1.2 and
1.3 of this Agreement), whether arising under this Agreement
or by statute or in law or in equity or otherwise, resulting
from any failure by Entergy to perform its obligations under
this Agreement, but so far as this clause (y) is concerned
only to the extent required for the payment when due and
payable of the Obligations Secured Hereby, together in each
case with full power and authority, in the name of the
Administrating Bank, or the Company as assignor, or
otherwise, to demand payment of, enforce, collect, receive
and receipt for any and all of the foregoing (the rights,
claims, powers, privileges, interests and remedies referred
to in clause (y) being hereinafter sometimes called the
"Collateral").
5.2. Other Agreements.
(a) The Company will not assign the rights
assigned in clause (x) of Section 5.1 as security for any
indebtedness other than the Obligations Secured Hereby and
will not assign the other rights assigned in Section 5.1 as
security for any indebtedness other than the Obligations
Secured Hereby, except as provided in paragraph (b) of this
Section 5.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain
banks as referred to in Whereas Clause C hereof by the
First, Fourth, Fifth and Eighth Supplementary Capital Funds
Agreements, (ii) the First Series Bonds, the Second Series
Bonds, the Third Series Bonds, the Fourth Series Bonds, the
Seventh Series Bonds, the Eighth Series Bonds, the Ninth
Series Bonds, the Tenth Series Bonds, the Eleventh Series
Bonds, the Twelfth Series Bonds, the Thirteenth Series
Bonds, the Fourteenth Series Bonds, the Fifteenth Series
Bonds, the Sixteenth Series Bonds, the Seventeenth Series
Bonds, the Eighteenth Series Bonds and the Nineteenth Series
Bonds, as referred to in Whereas Clause D hereof by the
Second, Third, Eleventh, Thirteenth, Sixteenth, Seventeenth,
Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-
fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-
ninth, Thirtieth and Thirty-first Supplementary Capital
Funds Agreements, respectively, (iii) loans made by certain
banks as referred to in Whereas Clause E hereof by the Sixth
and Seventh Supplementary Capital Funds Agreements,
respectively, (iv) the obligations under the Series A
Reimbursement Agreement as referred to in Whereas Clause F
hereof by the Ninth Supplementary Capital Funds Agreement,
(v) the obligations under the Series B Reimbursement
Agreement as referred to in Whereas Clause G hereof by the
Tenth Supplementary Capital Funds Agreement, (vi) the
obligations under the Series C Reimbursement Agreement as
referred to in Whereas Clause H hereof by the Twelfth
Supplementary Capital Funds Agreement, (vii) the Fifth
Series Bonds as referred to in Whereas Clause I hereof by
the Fourteenth Supplementary Capital Funds Agreement,
(viii) the Sixth Series Bonds as referred to in Whereas
Clause J hereof by the Fifteenth Supplementary Capital Funds
Agreement, (ix) the obligations under the 1988 Reimbursement
Agreement as referred to in Whereas Clause K hereof by the
Twenty-second Supplementary Capital Funds Agreement, (x) the
obligations under the 1991 Reimbursement Agreement as
referred to in Whereas Clause L hereof by the Twenty-third
Supplementary Capital Funds Agreement, (xi) the obligations
under the 1993 Reimbursement Agreement as referred to in
Whereas Clause M hereof by the Twenty-eighth Supplementary
Capital Funds Agreement, and shall be entitled to secure the
interest and premium, if any, on, and the principal of,
other Indebtedness for Borrowed Money of the Company issued
by the Company to any person (except Entergy or any
affiliate of Entergy) to finance the cost of the Project
(including, without limitation, indebtedness outstanding
under the Indenture) or to refund (including any successive
refundings) any such Indebtedness issued for such purpose,
the incurrence of which Indebtedness is at the time
permitted by the Indenture (herein called "Additional
Indebtedness"), by entering into a supplementary capital
funds agreement and assignment including, without
limitation, the First through Twenty-eighth Supplementary
Capital Funds Agreements (each being hereinafter called an
"Additional Supplementary Agreement") with the holders of
such Additional Indebtedness or representatives of or
trustees for such holders, or both, as the case may be
(hereinafter called an "Additional Assignee"). Each
Additional Supplementary Agreement shall be substantially in
the form of this Agreement, except that there shall be
substituted in such Additional Supplementary Agreement
appropriate references to such Additional Indebtedness, such
Additional Assignee and the agreement or instrument under
which such Additional Indebtedness is issued in lieu of the
references herein to the Reimbursement Obligations, the LOC
Banks, the Amended Reimbursement Agreement and the New LOCs,
respectively, and such Additional Supplementary Agreement
may contain such other provisions as are not inconsistent
with this Agreement and do not adversely affect the rights
hereunder of the LOC Banks.
(c) Notwithstanding any provision of this
Agreement to the contrary, or any priority in time of
creation, attachment or perfection of a security interest,
pledge or lien by the Administrating Bank, or any provision
of or filing or recording under the Uniform Commercial Code
or any other applicable law of any jurisdiction, the
Administrating Bank agrees that the claims of the
Administrating Bank under Sections 1.2 and 1.3 of this
Agreement and any security interest, pledge or lien in favor
of the Administrating Bank now or hereafter existing in and
to the Collateral shall rank pari passu with the claims of
each Additional Assignee under the corresponding sections of
the Additional Supplementary Agreement to which it is a
party and any security interest, pledge or lien in favor of
such Additional Assignee thereunder now or hereafter
existing in and to the Collateral, irrespective of the time
or times at which prior, concurrent or subsequent Additional
Supplementary Agreements are entered into in accordance with
Section 5.2(b) hereof.
5.3. Payments to the Administrating Bank. The
Company agrees that, if and whenever it shall make a demand
to Entergy for any payment pursuant to Section 1.2, 1.3, or
1.4 of this Agreement or pursuant to the corresponding
provisions of any Additional Supplementary Agreement, it
will separately identify the respective portions of such
payment, if any, required for (i) the payment of Obligations
Secured Hereby and (ii) the payment of any other amounts
then due and payable in respect of Additional Indebtedness
and instruct Entergy (subject to the provisions of
Section 5.4) to pay or cause to be paid the amount so
identified as required for the payment of Obligations
Secured Hereby directly to the Administrating Bank. Any
payments made or caused to be made by Entergy pursuant to
Section 1.2 or 1.3 of this Agreement or pursuant to the
corresponding provisions of any Additional Supplementary
Agreement shall, to the extent necessary to satisfy in full
the assignment set forth in Section 5.1 of this Agreement
and the corresponding assignments set forth in the
Additional Supplementary Agreements, be made pro rata in
proportion to the respective amounts secured by, and then
due and owing under, such assignments.
5.4. Payments to the Company. Notwithstanding
the provisions of Sections 5.1. and 5.3, unless and until
the Administrating Bank shall have given written notice to
Entergy of the occurrence and continuance of any
Reimbursement Event of Default or Prepayment Event (as
defined in the Amended Reimbursement Agreement), all moneys
paid or to be paid to the Company pursuant to Sections 1.2,
1.3 and 1.4 of this Agreement shall be paid directly to the
Company and the Company need not separately identify the
respective portions of payments as provided in Section 5.3
hereof, provided that notice as to the amount of any such
payments or advances shall be given by the Company to the
Administrating Bank simultaneously with the demand by the
Company for any such payment. If the Administrating Bank
shall have duly notified Entergy of the occurrence of any
such Reimbursement Event of Default or Prepayment Event,
such payments shall be made in the manner and in the amounts
specified in Section 5.3 hereof until the Administrating
Bank shall by further notice to Entergy give permission that
all such payments may be made again to the Company, such
permission being subject to revocation by a subsequent
notice pursuant to the first sentence of this Section 5.4.
The Administrating Bank shall give such permission if no
such Reimbursement Event of Default or Prepayment Event
continues to exist.
5.5. Consent and Agreement of Entergy.
(a) Entergy hereby consents to the foregoing
assignment and agrees with the Administrating Bank to make
payments to the Administrating Bank in the amounts and in
the manner specified in Section 5.3 at the office of the
Administrating Bank in New York City, New York, which is
presently located at Loan and Agency Services Group, One
Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Subject to the provisions of Section 2.4
hereof, Entergy agrees that all payments made to the
Administrating Bank or to the Company as contemplated by
Sections 5.3 and 5.4 shall be final as between Entergy and
the LOC Banks or the Company, as the case may be, and that
Entergy will not seek to recover from any LOC Banks for any
reason whatsoever any moneys paid to the Administrating Bank
by virtue of this Agreement, but the finality of any such
payment shall not prevent the recovery of any overpayments
or mistaken payments which may be made by Entergy unless a
Reimbursement Event of Default or Prepayment Event has
occurred and is continuing, in which case any such
overpayment or mistaken payment shall not be recoverable but
shall constitute Subordinated Indebtedness of the Company to
Entergy.
ARTICLE VI
Amendments
6.1. Restrictions on Amendments. This Agreement
may not be amended, waived, modified, discharged or
otherwise changed orally. It may be amended, waived,
modified, discharged or otherwise changed only by a written
instrument which has been signed by all the parties hereto
and which has been approved by the Administrating Bank or
which does not materially adversely affect the rights of the
LOC Banks.
6.2. Administrating Bank's Execution. The
Administrating Bank shall, at the request of the Company,
execute any instrument amending, waiving, modifying,
discharging or otherwise changing this Agreement (a) as to
which the Administrating Bank shall have received an opinion
of counsel to the effect that such instrument has been duly
authorized by Entergy and the Company and is permitted by
the provisions of Section 6.1 and that this Agreement, as
amended, waived, modified, discharged or otherwise changed
by such instrument, constitutes valid, legally binding and
enforceable obligations of the Company and Entergy, and
(b) which shall have been executed by Entergy and the
Company. The Administrating Bank shall be fully protected
in relying upon the aforesaid opinion.
ARTICLE VII
Notices
7.1. Notices, Etc., in Writing. All notices,
consents, requests and other documents authorized or
permitted to be given pursuant to this Agreement shall be
given in writing and either personally served on the party
to whom (or an officer of a corporate party) it is given or
mailed by registered or certified first-class mail, postage
prepaid, or sent by telex or telegram, addressed as follows:
If to System Energy Resources, Inc., to:
Xxx 00000
Xxx Xxxxxxx, XX 00000
Attention: Treasurer
If to Entergy Corporation, to:
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
If to the Administrating Bank, to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxx Xxxxx
with copies to each party.
7.2. Delivery, Etc. Notices, consents, requests
and other documents shall be deemed given or served or
submitted when delivered or, if mailed as provided in
Section 7.1 hereof, on the third day after the day of
mailing, or if sent by telex or telegram, 24 hours after the
time of dispatch. A party may change its address for the
receipt of notices, consents, requests and other documents
at any time by giving notice thereof to the other parties.
Any notice, consent, request or other document given
hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VIII
Enforcement
8.1. Enforcement Action. At any time when a
Reimbursement Event of Default or Prepayment Event under the
Amended Reimbursement Agreement has occurred and is
continuing, the Administrating Bank may proceed, in its own
name, or as agent or otherwise, to protect and enforce its
rights, those of the other LOC Banks and those of the
Company under this Agreement by suit in equity, action at
law or other appropriate proceedings, whether for the
specific performance of any covenant or agreement contained
in this Agreement or otherwise, and whether or not the
Company shall have complied with any of the provisions
hereof or proceeded to take any action authorized or
permitted under applicable law. Each and every remedy of
the LOC Banks shall, to the extent permitted by law, be
cumulative and shall be in addition to any other remedy
given hereunder or under the Amended Reimbursement Agreement
or now or hereafter existing at law or in equity or by
statute.
8.2. Attorney-in-Fact. The Company hereby
constitutes the Administrating Bank its true and lawful
attorney, irrevocably, with full power (in such attorney's
name or otherwise), at any time when a Reimbursement Event
of Default or Prepayment Event under the Amended
Reimbursement Agreement has occurred and is continuing, to
enforce any of the obligations contained herein or to take
any action or institute any proceedings which to the
Administrating Bank may seem necessary or advisable in the
premises.
ARTICLE IX
Severability
If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
ARTICLE X
Governing Law
This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
ARTICLE XI
Succession
Subject to Article IV hereof, this Agreement shall
be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, but no
assignment hereof, or of any right to any funds due or to
become due under this Agreement, shall in any event relieve
the Company or Entergy of their respective obligations
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year
first above written.
ENTERGY CORPORATION,
By
/s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President and Treasurer
SYSTEM ENERGY RESOURCES, INC.,
By
/s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrating Bank,
By
/s/ Michiel V.M. Van Der Voort
Name: Michiel V.M. Van Der Voort
Title: Vice President
