Exhibit B-3(a)(1)
THIRTY-FOURTH SUPPLEMENTARY CAPITAL FUNDS AGREEMENT
AND ASSIGNMENT
This Thirty-fourth Supplementary Capital Funds
Agreement and Assignment (hereinafter referred to as "this
Agreement") dated as of September 1, 2002, is made by and among
Entergy Corporation (successor to Middle South Utilities, Inc.)
("Entergy"), System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), The Bank of New York (successor to
United States Trust Company of New York), as trustee (hereinafter
called the "Corporate Trustee"), and Xxxxxxx X. XxxXxxxx
(successor to Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxx), as trustee
(hereinafter called the "Individual Trustee") (the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock of
the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit No. 1 of the Grand Gulf Nuclear
Electric Station project (the "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 among 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
Amendment; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees, as trustees for the holders of $400,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 9.25%
Series due 1989 (the "First Series Bonds") issued under a
Mortgage and Deed of Trust dated as of June 15, 1977, among the
Company and the Trustees (the "Mortgage"), as supplemented by a
First Supplemental Indenture dated as of June 15, 1977, among the
Company and the Trustees (the Mortgage, as so supplemented and as
supplemented by a Second Supplemental Indenture dated as of
January 1, 1980, a Third Supplemental Indenture dated as of June
15, 1981, a Fourth Supplemental Indenture dated as of June 1,
1984, a Fifth Supplemental Indenture dated as of December 1,
1984, a Sixth Supplemental Indenture dated as of May 1, 1985, a
Seventh Supplemental Indenture dated as of June 15, 1985, an
Eighth Supplemental Indenture dated as of May 1, 1986, a Ninth
Supplemental Indenture dated as of May 1, 1986, a Tenth
Supplemental Indenture dated as of September 1, 1986, an Eleventh
Supplemental Indenture dated as of September 1, 1986, a Twelfth
Supplemental Indenture dated as of September 1, 1986, a
Thirteenth Supplemental Indenture dated as of November 15, 1987,
a Fourteenth Supplemental Indenture dated as of December 1, 1987,
a Fifteenth Supplemental Indenture dated as of July 1, 1992, a
Sixteenth Supplemental Indenture dated as of October 1, 1992, a
Seventeenth Supplemental Indenture dated as of October 1, 1992,
an Eighteenth Supplemental Indenture dated as of April 1, 1993, a
Nineteenth Supplemental Indenture dated as of April 1, 1994, a
Twentieth Supplemental Indenture dated as of August 1, 1996, and
a Twenty-first Supplemental Indenture dated as of August 1, 1996
and as the same may from time to time hereafter be amended and
supplemented in accordance with its terms, being hereinafter
called the "Indenture"), entered into the Second Supplementary
Capital Funds Agreement and Assignment dated as of June 30, 1977
(the "Second Supplementary Capital Funds Agreement")
(substantially in the form of this Agreement) to secure the First
Series Bonds; (ii) Entergy, the Company and the Trustees, as
trustees for the holders of $98,500,000 aggregate principal
amount of the Company's First Mortgage Bonds, 12.50% Series due
2000 (the "Second Series Bonds") issued under the Mortgage, as
supplemented by a Second Supplemental Indenture dated as of
January 1, 1980 among 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 among 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 among 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 among 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 among 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 among 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 among 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 among 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 among 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 among 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 among 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 among 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 among the Company and the Trustees, entered into
the Twenty-seventh Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1993 (the "Twenty-seventh
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Sixteenth Series Bonds;
(xv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7-5/8% Series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 among 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 among 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, 7.71% Series due
2001 (the "Nineteenth Series Bonds") issued under the Mortgage,
as supplemented by a Twenty-first Supplemental Indenture dated as
of August 1, 1996 among 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 among 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 the Eurodollar 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 and Assignment (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 Deposit Guaranty National Bank as
trustee under the indenture relating to the Series A Bonds.
G. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement") which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Supplementary Capital Funds Agreement and
Assignment (also substantially in the form of this Agreement)
dated as of June 1, 1984 (the "Tenth Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the Bank and
Deposit Guaranty National Bank as trustee under the indenture
relating to the Series B Bonds.
H. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement and Assignment (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 among the Company and the Trustees,
entered into the Fourteenth Supplementary Capital Funds Agreement
and Assignment dated as of June 15, 1985 (the "Fourteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifth Series Bonds. The
Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (the
"Series D Bonds"), issued by Claiborne County, Mississippi
pursuant to a trust indenture dated as of June 15, 1985 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Fourteenth Supplementary Capital Funds Agreement, Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Trustees and Deposit Guaranty National
Bank as trustee under the indenture relating to the Series D
Bonds.
J. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $95,643,750 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series B (the "Sixth Series Bonds") issued under the
Mortgage, as supplemented by an Eighth Supplemental Indenture
dated as of May 1, 1986 among the Company and the Trustees,
entered into the Fifteenth Supplementary Capital Funds Agreement
and Assignment dated as of May 1, 1986 (the "Fifteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Sixth Series Bonds. The
Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) Series E (the
"Series E Bonds"), issued by Claiborne County, Mississippi
pursuant to a trust indenture dated as of May 1, 1986 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Fifteenth Supplementary Capital Funds Agreement, Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Trustees and Deposit Guaranty National
Bank as trustee under the indenture relating to the Series E
Bonds.
K. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and 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
April 1, 1989, and a separate Lease Supplement No. 2 thereto,
each dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GGIB
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement dated as of
December 1, 1988 (the "Reimbursement Agreement") which provided,
among other things, (x) for the issuance by the Funding Bank
named therein (the "1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein ("1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOCs. Pursuant to the Twenty-second
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of
December 1, 1988 (the "Twenty-second Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the benefit of
Chemical Bank (the "Administrating Bank"), such 1988 Funding Bank
and the 1988 Participating Banks.
L. Entergy, the Company and the Administrating Bank
entered into the Twenty-third Supplementary Capital Funds
Agreement and Assignment (substantially in the form of this
Agreement) dated as of January 11, 1991 ("Twenty-third
Supplementary Capital Funds Agreement") in connection with the
execution and delivery of the First Amendment to Reimbursement
Agreement, dated as of January 11, 1991 ("First Amendment to
Reimbursement Agreement") (the Reimbursement Agreement, as
amended by the First Amendment to Reimbursement Agreement, is
herein called the "First Amended Reimbursement Agreement") that
provided, among other things, (i) for the issuance by The Bank of
Tokyo, Ltd., Los Angeles Agency (the "Funding Bank"), for the
account of the Company, of irrevocable transferable letters of
credit (the "1991 LOCs") to the Owner Participants to secure
certain obligations of the Company to the Owner Participants,
such 1991 LOCs to be substantially in the form of Exhibit A to
the First Amended Reimbursement Agreement with maximum amounts of
$116,601,440 and $29,150,360; (ii) for the reimbursement to the
Funding Bank by the banks named in the First Amended
Reimbursement Agreement (the "Participating Banks") for all
drafts paid by the Funding Bank under any 1991 LOC; and (iii) for
the reimbursement by the Company to the Funding Bank for the
benefit of the Participating Banks of sums equal to all drafts
paid by the Funding Bank under any 1991 LOC.
M. Entergy, the Company and the Administrating Bank
entered into the Twenty-eighth Supplementary Capital Funds
Agreement and Assignment (substantially in the form of this
Agreement), dated as of December 17, 1993 ("Twenty-eighth
Supplementary Capital Funds Agreement") in connection with the
execution and delivery of the Second Amendment to Reimbursement
Agreement, dated as of December 17, 1993 ("Second Amendment to
Reimbursement Agreement") (the First Amended Reimbursement
Agreement, as amended by the Second Amendment to Reimbursement
Agreement, is herein called the "Second Amended Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by the Funding Bank, for the account of the Company, of
irrevocable transferable letters of credit (the "1993 LOCs") to
the Owner Participants to secure certain obligations of the
Company to the Owner Participants, such 1993 LOCs to be
substantially in the form of Exhibit A to the Second Amended
Reimbursement Agreement with maximum amounts of $132,131,960 and
$33,032,990 (subsequently reduced to $32,205,291); (ii) for the
reimbursement to the Funding Bank by the Participating Banks for
all drafts paid by the Funding Bank under any 1993 LOC; and (iii)
for the reimbursement by the Company to the Funding Bank for the
benefit of the Participating Banks of sums equal to all drafts
paid by the Funding Bank under any 1993 LOC.
N. Entergy, the Company and the Administrating Bank
entered into the Thirty-second Supplementary Capital Funds
Agreement and Assignment (substantially in the form of this
Agreement), dated as of December 27, 1996 ("Thirty-second
Supplementary Capital Funds Agreement") in connection with the
execution and delivery of the Amended and Restated Reimbursement
Agreement, dated as of December 27, 1996 (the "1996 Restated
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 (the "1996
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants, such 1996 LOCs to be
substantially in the form of Exhibit A to the 1996 Restated
Reimbursement Agreement with maximum amounts of $148,719,125 and
$34,946,720; (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1996 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 1996 LOC.
O. Entergy, the Company and the Administrating Bank
entered into the Thirty-third Supplementary Capital Funds
Agreement and Assignment (substantially in the form of this
Agreement), dated as of December 20, 1999 ("Thirty-third
Supplementary Capital Funds Agreement") in connection with the
execution and delivery of the Amended and Restated Reimbursement
Agreement, dated as of December 20, 1999 (the "1999 Restated
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 (the "1999
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants, such 1999 LOCs to be
substantially in the form of Exhibit A to the 1999 Restated
Reimbursement Agreement with maximum amounts of $156,885,464 and
$36,061,470; (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1999 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 1999 LOC.
P. The Company seeks to refinance that part of the
capital costs related to the Project with borrowed funds, and, to
that end, (i) the Company has entered into an Underwriting
Agreement, dated September 18, 2002 (the "Underwriting
Agreement"), with Barclays Capital Inc., BNP Paribas Securities
Corp. and The Xxxxxxxx Capital Group, L.P., providing, among
other things, for the issue and sale by the Company of
$70,000,000 aggregate principal amount of First Mortgage Bonds, 4
7/8% Series due 2007 (the "Twentieth Series Bonds"), to be issued
under and secured pursuant to the Indenture as heretofore
supplemented and as further supplemented by a Twenty-second
Supplemental Indenture dated as of September 1, 2002 (the "Twenty-
second Supplemental Indenture").
Q. By written assumption dated as of December 31,
1993, Entergy Corporation, a Delaware corporation, assumed all
obligations and liabilities of Entergy Corporation, a Florida
corporation, under the Capital Funds Agreement, as supplemented,
pursuant to and as permitted by the terms of the supplements
thereto.
R. The Company and Entergy, by this instrument, wish
(i) to continue to supplement their undertakings under the
Capital Funds Agreement for the benefit of the Trustees and
(ii) to create enforceable rights hereunder in the Trustees as
hereinafter set forth.
S. 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. 70-9753, 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.
T. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Obligations of Entergy and the Company.
1.1. Commercial Operation of the Project. The Company
shall (and Entergy shall cause the Company to) use its best
efforts to maintain the Project in commercial operation and, in
connection therewith, take all such action, including, without
limitation, all actions before governmental authorities, as shall
be necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall
supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required from
time to time by the Company in order to maintain that portion of
the Capitalization (as defined in Section 1.6 hereof) of the
Company as shall be represented by the aggregate of the par value
of, or stated capital represented by, the outstanding shares of
all classes of capital stock and the surplus of the Company, paid
in, earned and other, if any, at an amount equal to at least 35%
of the Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy in
exchange for shares of the Company's common stock and (ii) the
capital made available to the Company at any time in question
through the incurrence by the Company of Indebtedness for
Borrowed Money (as defined in Section 1.6 hereof) as shall be
required in order for the Company to continue to own its
undivided ownership interest in the Project, to provide (without
limitation) for interest charges of the Company, to permit the
commercial operation of Unit No. 1, to permit the continuation of
such commercial operation and to pay in full all payments of the
principal of, and premium, if any, and interest on Indebtedness
for Borrowed Money, as defined in Section 1.6 hereof (whether due
at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), it being understood and agreed that,
in connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor) and
the entering into by the Company of industrial development
revenue bond financing with respect to pollution control
facilities and the issuance and sale by the Company of debt
securities, and, to the extent necessary or desirable, preferred
stock, to banks, institutions and the public may constitute some
of the means by which required capital can be made available to
the Company.
1.3. Manner of Performance. If, with respect to any
amount of capital which Entergy shall, at any time in question,
be obligated under the provisions of Section 1.2 to supply or
cause to be supplied to the Company, Entergy and the Company
shall fail to agree on the type, or terms, of any particular
security to be issued by the Company and sold to Entergy or to
others for the purpose of securing such required capital or if
requisite regulatory approvals are not obtained for any issuance
and sale so agreed upon or if such issuance and sale cannot for
any other reason be carried out, then and in such event, Entergy
shall supply such capital to the Company in the form of a cash
capital contribution.
1.4. Payments in Respect of the Twentieth Series
Bonds. If at any time the Company shall require funds to pay
(i) the interest (including, if and to the extent permitted by
law, interest on overdue principal, premium and interest) and
premium, if any, on, and the principal of, the Twentieth Series
Bonds (whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (ii) the expenses,
commitment fees, financing charges, trustees' fees and
administration expenses attributable to the Twentieth Series
Bonds, and the funds of the Company available for such purpose or
purposes shall be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of, funds
under any loan agreement or similar instrument or instruments to
which the Company is now or hereafter becomes a party, Entergy
will pay to the Company in cash as a capital contribution the
funds necessary to enable the Company to pay the amounts referred
to above in this Section 1.4.
1.5. Subordination of Claims of Entergy Against the
Company. Entergy hereby agrees that (i) all amounts advanced by
Entergy to the Company (other than by way of purchases of capital
stock of the Company or capital contributions to the Company)
shall, for the purposes of this Agreement and so long as this
Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of the Company (as defined in Section
1.6 hereof) and (ii) no such Subordinated Indebtedness of the
Company shall be transferred or assigned (including by way of
security) to any person (other than to a successor of Entergy by
way of merger or consolidation or the acquisition by such person
of all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of the
Company as such on its books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of the
Company (exclusive of Short Term Debt), secured or unsecured,
then outstanding, and the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of the Company and the surplus of the
Company, paid in, earned and other, if any;
(b) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed Money
created or incurred by the Company which matures by its terms not
more than 12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the option
of the Company for a period of more than 12 months from the date
of the creation or incurrence thereof pursuant to any revolving
credit or similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to the
Obligations Secured Hereby (as defined in Section 5.1 hereof) to
the extent and in the manner set forth below:
(i) if there shall occur a Default (as defined in
the Indenture), then so long as such Default shall be continuing
and shall not have been cured or waived, or unless and until all
the Obligations Secured Hereby shall have been paid in full in
money or money's worth at the time of receipt, no payment of
principal and premium, if any, or interest shall be made upon
Subordinated Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar case or proceedings,
or any receivership proceedings in connection therewith, relative
to the Company or its creditors or its property, and in the event
of any proceedings for voluntary liquidation, dissolution or
other winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then the Obligations
Secured Hereby shall first be paid in full in money or money's
worth at the time of receipt, or payment thereof shall have been
provided for, before any payment on account of principal,
premium, if any, or interest is made upon Subordinated
Indebtedness of the Company.
ARTICLE II.
Nature of the Obligations of
Entergy and the Company
2.1. Regulatory Approvals.
(a) Except as provided in Section 2.2 with respect to
the obligations of Entergy to make cash capital contributions to
the Company pursuant to the provisions of Sections 1.3 and 1.4
(as to which the SEC Orders are in full force and effect at the
date of execution and delivery of this Agreement), the
performance of the obligations of Entergy hereunder shall be
subject to the receipt and continued effectiveness of all
authorizations of governmental regulatory authorities necessary
at the time to permit Entergy at the time to perform its duties
and obligations then to be performed hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental authorities necessary at the time to permit Entergy
at the time to supply or cause to be supplied to the Company
capital pursuant to the provisions of Section 1.2 or to permit
Entergy at the time to acquire securities issued and sold to
Entergy by the Company.
(b) The performance of the obligations of the Company
hereunder shall be subject to the receipt and continued
effectiveness of all authorizations of governmental regulatory
authorities at the time necessary to permit the Company to
perform its duties and obligations hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental regulatory authorities at the time necessary to
permit the Company to operate the Project (or to have the Project
operated for it) to the extent the Project is then operable, and
to issue and to sell securities then to be issued and sold by the
Company to Entergy or to others for the purpose of securing
required capital.
(c) Entergy and the Company shall use their best
efforts to secure and maintain all such authorizations of
governmental regulatory authorities.
2.2. Nature of Obligations. The obligations of
Entergy hereunder to make cash capital contributions to the
Company pursuant to the provisions of Sections 1.3 and 1.4 having
heretofore been authorized by the SEC Orders (and no other
authorization by any governmental regulatory authority being
required) and the owners of the Twentieth Series Bonds having
relied on such authorization in accepting the Twentieth Series
Bonds as security for the Company's obligations, Entergy agrees
that its duty to perform such obligations shall be absolute and
unconditional, (a) whether or not Entergy shall have received all
authorizations of governmental regulatory authorities necessary
at the time to permit Entergy to perform its other duties and
obligations hereunder, (b) whether or not the Company shall have
received all authorizations of governmental regulatory
authorities necessary at the time to permit the Company to
perform its duties and obligations hereunder, (c) whether or not
any authorizations referred to in the foregoing clauses (a) and
(b) continue, at the time, in effect, (d) whether or not, at any
time in question, the Company shall have performed its duties and
obligations under this Agreement, (e) whether or not the Project
shall be maintained in commercial operation, energy from the
Project is being produced or delivered or is available
(including, without limitation, delivery or availability to other
subsidiaries of Entergy), an abandonment of the Project shall
have occurred or the Project shall be in whole or in part
destroyed or taken, for any reason whatsoever, (f) whether or not
the Company shall be solvent, (g) regardless of any event of
force majeure and (h) regardless of any other circumstance,
happening, condition or event whatsoever, whether or not similar
to any of the foregoing. Subject to Section 2.1(a), all other
obligations of Entergy hereunder are similarly absolute and
unconditional.
(b) In the event that Entergy shall cease to own at
least a majority of common stock of the Company and such lower
ownership percentage has been permitted pursuant to the consent
of the holders of at least 66 2/3% of the Twentieth Series Bonds
Outstanding (as defined in the Indenture) at the time of such
consent, the obligations of Entergy hereunder shall not be
increased by any amendment to, or modification of, the terms and
provisions of the Indenture, the Twenty-second Supplemental
Indenture or the Twentieth Series Bonds unless Entergy shall have
consented in writing to such amendment or modification.
2.3. Waivers of Defenses. The obligations of Entergy
under Sections 1.2, 1.3 and 1.4 to supply capital or cause
capital to be supplied or to make cash capital contributions to
the Company shall not be subject to any abatement, reduction,
limitation, impairment, termination, set-off, defense,
counterclaim or recoupment whatsoever or any right to any thereof
(including, but not limited to, abatements, reductions,
limitations, impairments, terminations, set-offs, defenses,
counterclaims and recoupments for or on account of any past,
present or future indebtedness of the Company to Entergy or any
claim by Entergy against the Company, whether or not arising
under this Agreement and whether or not arising out of any action
or nonaction on the part of the Company or the Trustees (or
either of them), including any disposition of the Project or any
part thereof pursuant to the Indenture, requirements of
governmental authorities, actions of judicial receivers or
trustees or otherwise and whether or not arising from willful or
negligent acts or omissions). The foregoing, however, shall not,
subject to the provisions of Section 1.5 hereof, affect in any
other way any rights and remedies of Entergy with respect to any
amounts owed to Entergy by the Company or any such claim by
Entergy against the Company. The obligations and liabilities of
Entergy hereunder shall not be released, discharged or in any way
affected by any reorganization, arrangement, compromise,
composition or plan affecting the Company or any change, waiver,
extension, indulgence or other action or omission in respect of
any indebtedness or obligation of the Company or Entergy, whether
or not the Company or Entergy shall have had any notice or
knowledge of any of the foregoing. Neither failure nor delay by
the Company or the Trustees (or either of them) to exercise any
right or remedy provided herein or by statute or at law or in
equity shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy preclude any other
or further exercise thereof, or the exercise of any other right
or remedy. Entergy also hereby irrevocably waives, to the extent
that it may do so under applicable law, any defense based on the
adequacy of a remedy at law which may be asserted as a bar to the
remedy of specific performance in any action brought against
Entergy for specific performance of this Agreement by the Company
or by the Trustees (or either of them) or for their benefit by a
receiver or trustee appointed for the Company or in respect of
all or a substantial part of the Company's assets under the
bankruptcy or insolvency law of any jurisdiction to which the
Company is or its assets are subject. Anything in this Section
2.3 to the contrary notwithstanding, Entergy shall not be
precluded from asserting as a defense against any claim made
against Entergy upon any of its obligations hereunder that it has
fully performed such obligation in accordance with the terms of
this Agreement.
2.4. Subrogation, Etc. Entergy shall, subject to the
provisions of Section 1.5, be subrogated to all rights of the
Trustees and the holders of the Twentieth Series Bonds against
the Company in respect of any amounts paid by Entergy pursuant to
the provisions of this Agreement and applied to the payment of
the Obligations Secured Hereby (as defined in Section 5.1
hereof). The Trustees agree that they will not deal with the
Company, or any security for the Twentieth Series Bonds, in such
a manner as to prejudice such rights of Entergy.
ARTICLE III.
Term
This Agreement shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of
Entergy and the Company set forth in this Agreement are
exclusively for the benefit of, and may be enforced only by, the
Trustees (or either of them), the holders of the Twentieth Series
Bonds as provided in the Indenture, or for their benefit by a
receiver or trustee for the Company or in respect of all or a
substantial part of its assets under the bankruptcy or insolvency
law of any jurisdiction to which the Company is or its assets are
subject.
ARTICLE IV.
Assignment
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by any of the parties hereto,
except transfer or assignment by the Trustees to their respective
successors in accordance with Article XVII of the Indenture,
except as otherwise provided in Article V hereof and except that:
(i) in the event that Entergy shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Agreement shall be transferred by Entergy to
and shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such
consolidation, merger or other transfer, such corporation or
other person shall deliver to the Company and the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of Entergy's obligations and
liabilities under this Agreement and an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person; and
(ii) in the event that the Company shall
consolidate with or merge with or into another corporation or
shall transfer to another corporation or other person all or
substantially all of its assets, this Agreement shall be
transferred by the Company to and shall be binding upon the
corporation resulting from such consolidation or merger or the
corporation or other person to which such transfer is made and,
as a condition to such consolidation, merger or other transfer,
such corporation or other person shall deliver to the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of the Company's obligations and
liabilities under this Agreement and an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person.
ARTICLE V.
Security Assignment and Agreement
5.1. Assignment and Creation of Security Interest. As
security for (i) the due and punctual payment of the interest
(including, if and to the extent permitted by law, interest on
overdue principal, premium and interest) and premium, if any, on,
and the principal of, the Twentieth Series Bonds (whether at the
stated maturity thereof, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (ii) the due and
punctual payment of all fees and costs, expenses and other
amounts which may become payable by the Company under the
Indenture which are a charge on the trust estate thereunder which
is superior to the charge thereon for the benefit of the
Twentieth Series Bonds, together in each case with all costs of
collection thereof (all such amounts referred to in the foregoing
clauses (i), and (ii) being hereinafter collectively referred to
as "Obligations Secured Hereby"), the Company hereby assigns to
the Trustees, and creates a security interest in favor of the
Trustees in, (x) all of the Company's rights to receive all
moneys paid, or caused to be paid, or to be paid or to be caused
to be paid, to the Company by Entergy pursuant to Section 1.4 of
this Agreement, and (y) all other claims, rights (but not
obligations or duties), powers, privileges, interests and
remedies of the Company (including, without limitation, all of
the Company's rights to receive all moneys paid, or caused to be
paid, or to be paid, or to be caused to be paid, to the Company
by Entergy pursuant to Sections 1.2 and 1.3 of this Agreement),
whether arising under this Agreement or by statute or in law or
in equity or otherwise, resulting from any failure by Entergy to
perform its obligations under this Agreement, but so far as this
clause (y) is concerned only to the extent required for the
payment when due and payable of the Obligations Secured Hereby,
together in each case with full power and authority, in the name
of the Trustees (or either of the Trustees), or the Company as
assignor, or otherwise, to demand payment of, enforce, collect,
receive and receipt for any and all of the foregoing (the rights,
claims, powers, privileges, interests and remedies referred to in
clause (y) being hereinafter sometimes called the "Collateral").
5.2. Other Agreements.
(a) The Company will not assign the rights assigned in
clause (x) of Section 5.1 as security for any indebtedness other
than the Obligations Secured Hereby and will not assign the other
rights assigned in Section 5.1 as security for any indebtedness
other than the Obligations Secured Hereby, except as provided in
paragraph (b) of this Section 5.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain banks as
referred to in Whereas Clause C hereof by the First, Fourth,
Fifth and Eighth Supplementary Capital Funds Agreements, (ii) the
First Series Bonds, the Second Series Bonds, the Third Series
Bonds, the Fourth Series Bonds, the Seventh Series Bonds, the
Eighth Series Bonds, the Ninth Series Bonds, the Tenth Series
Bonds, the Eleventh Series Bonds, the Twelfth Series Bonds, the
Thirteenth Series Bonds, the Fourteenth Series Bonds, the
Fifteenth Series Bonds, the Sixteenth Series Bonds, the
Seventeenth Series Bonds, 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 Reimbursement Agreement as referred to in Whereas Clause K
hereof by the Twenty-second Supplementary Capital Funds
Agreement, (x) the obligations under the First Amended
Reimbursement Agreement as referred to in Whereas Clause L hereof
by the Twenty-third Supplementary Capital Funds Agreement,
(xi) the obligations under the Second Amended Reimbursement
Agreement as referred to in Whereas Clause M hereof by the Twenty-
eighth Supplementary Capital Funds Agreement, (xii) the
obligations under the 1996 Restated Reimbursement Agreement as
referred to in Whereas Clause N hereof by the Thirty-second
Supplementary Capital Funds Agreement, and (xiii) the obligations
under the 1999 Restated Reimbursement Agreement as referred to in
Whereas Clause O hereof by the Thirty-third 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 Thirty-third 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 Twentieth
Series Bonds, the Trustees, and the Indenture, respectively, and
such Additional Supplementary Agreement may contain such other
provisions as are not inconsistent with this Agreement and do not
adversely affect the rights hereunder of the holders of the
Twentieth Series Bonds or the Trustees (or either of the
Trustees).
(c) Notwithstanding any provision of this Agreement to
the contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the
Trustees, or any provision of or filing or recording under the
Uniform Commercial Code or any other applicable law of any
jurisdiction, the Trustees agree that the claims of the Trustees
under Sections 1.2 and 1.3 of this Agreement and any security
interest, pledge or lien in favor of the Trustees now or
hereafter existing in and to the Collateral shall rank pari passu
with the claims of each Additional Assignee under the
corresponding sections of the Additional Supplementary Agreement
to which it is a party and any security interest, pledge or lien
in favor of such Additional Assignee thereunder now or hereafter
existing in and to the Collateral, irrespective of the time or
times at which prior, concurrent or subsequent Additional
Supplementary Agreements are entered into in accordance with
Section 5.2(b) hereof.
5.3. Payments to the Corporate Trustee. The Company
agrees that, if and whenever it shall make a demand to Entergy
for any payment pursuant to Section 1.2, 1.3, or 1.4 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement, it will separately identify
the respective portions of such payment, if any, required for (i)
the payment of Obligations Secured Hereby and (ii) the payment of
any other amounts then due and payable in respect of Additional
Indebtedness and instruct Entergy (subject to the provisions of
Section 5.4) to pay or cause to be paid the amount so identified
as required for the payment of Obligations Secured Hereby
directly to the Corporate Trustee. Any payments made or caused
to be made by Entergy pursuant to Section 1.2 or 1.3 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement shall, to the extent necessary
to satisfy in full the assignment set forth in Section 5.1 of
this Agreement and the corresponding assignments set forth in the
Additional Supplementary Agreements, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
5.4. Payments to the Company. Notwithstanding the
provisions of Sections 5.1 and 5.3, unless and until the
Corporate Trustee shall have given written notice to Entergy of
the occurrence and continuance of any Default (as defined in the
Indenture), all moneys paid or to be paid to the Company pursuant
to Sections 1.2, 1.3 and 1.4 of this Agreement shall be paid
directly to the Company and the Company need not separately
identify the respective portions of payments as provided in
Section 5.3 hereof, provided that notice as to the amount of any
such payments or advances shall be given by the Company to the
Corporate Trustee simultaneously with the demand by the Company
for any such payment. If the Corporate Trustee shall have duly
notified Entergy of the occurrence of any such Default, such
payments shall be made in the manner and in the amounts specified
in Section 5.3 hereof until the Corporate Trustee shall by
further notice to Entergy give permission that all such payments
may be made again to the Company, such permission being subject
to revocation by a subsequent notice pursuant to the first
sentence of this Section 5.4. The Corporate Trustee shall give
such permission if no such Default continues to exist.
5.5. Consent and Agreement of Entergy.
(a) Entergy hereby consents to the foregoing
assignment and agrees with the Trustees to make payments to the
Corporate Trustee in the amounts and in the manner specified in
Section 5.3 at principal corporate trust office of the Corporate
Trustee in New York City, New York, which is presently located at
000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000.
(b) Subject to the provisions of Section 2.4 hereof,
Entergy agrees that all payments made to the Corporate Trustee or
to the Company as contemplated by Sections 5.3 and 5.4 shall be
final as between Entergy and the Corporate Trustee or the
Company, as the case may be, and that Entergy will not seek to
recover from the Corporate Trustee for any reason whatsoever any
moneys paid to the Corporate Trustee by virtue of this Agreement,
but the finality of any such payment shall not prevent the
recovery of any overpayments or mistaken payments which may be
made by Entergy unless a Default has occurred and is continuing,
in which case any such overpayment or mistaken payment shall not
be recoverable but shall constitute Subordinated Indebtedness of
the Company to Entergy.
ARTICLE VI.
Amendments
6.1. Restrictions on Amendments. This Agreement may
not be amended, waived, modified, discharged or otherwise changed
orally. It may be amended, waived, modified, discharged or
otherwise changed only by a written instrument which has been
signed by all the parties hereto and which has been approved by
the holders of more than 50% in principal amount of the Twentieth
Series Bonds Outstanding (as defined in the Indenture) at the
time of such consent or which does not materially adversely
affect the rights of the Trustees or the holders of the Twentieth
Series Bonds or which is necessary in order to qualify the
Indenture under the Trust Indenture Act of 1939, as contemplated
by Section 20.04 of the Mortgage provided, however, that (i)
without the written consent of the holders of all the Twentieth
Series Bonds affected thereby, no amendment, waiver,
modification, discharge or other change shall be made which shall
change the terms of this Section 6.1 and (ii) no such amendment,
waiver, modification, discharge or other change shall be made
which shall modify, without the written consent of each of the
Trustees, the rights, duties or immunities of the Trustees (or
either of them).
6.2. Trustees' Execution. The Trustees shall, at the
request of the Company, execute any instrument amending, waiving,
modifying, discharging or otherwise changing this Agreement (a)
as to which the Corporate Trustee shall have received an opinion
of counsel to the effect that such instrument has been duly
authorized by Entergy and the Company and is permitted by the
provisions of Section 6.1 and that this Agreement, as amended,
waived, modified discharged or otherwise changed by such
instrument, constitutes valid, legally binding and enforceable
obligations of the Company and Entergy, and (b) which shall have
been executed by Entergy and the Company. The Trustees (and each
of the Trustees) shall be fully protected in relying upon the
aforesaid opinion.
ARTICLE VII.
Notices
7.1. Notices, Etc., in Writing. All notices,
consents, requests and other documents authorized or permitted to
be given pursuant to this Agreement shall be given in writing and
either personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Treasurer
If to Entergy Corporation, to:
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
If to the Corporate Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Xxxxxxx X. XxxXxxxx]
If to the Individual Trustee, to:
Xxxxxxx X. XxxXxxxx
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
with copies to each party.
7.2. Delivery, Etc. Notices, consents, requests and
other documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 7.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VIII.
Enforcement
8.1 Indenture Terms and Conditions. The Trustees (and
each of the Trustees) enter into and accept this Agreement upon
the terms and conditions set forth in Article XVII of the
Indenture, respectively, with the same force and effect as if
those terms and conditions were repeated at length herein and
made applicable to Trustees (or either of the Trustees)
hereunder. Nothing in this Agreement shall affect any right or
remedy of the Company or Entergy against the Trustees (or either
of the Trustees) (other than those specifically waived herein),
for breach or violation of any of the obligations or duties of
the Trustees assumed or undertaken in this Agreement. Without
limiting the generality of the foregoing, the Trustees (and each
of the Trustees) assume no responsibility as to the validity or
enforceability hereof or for the correctness of the recitals of
fact contained herein or in the Capital Funds Agreement, which
shall be taken as the statements, representations and warranties
of the Company and Entergy.
8.2. Enforcement Action By Trustees. At any time when
a Default under the Indenture has occurred and is continuing, the
Trustees (or either of them) may proceed, in their, its or his
own name, or as trustees or trustee of an express trust or
otherwise, to protect and enforce the rights of the Trustees (or
either of them), and those of the Company under this Agreement by
suit in equity, action at law or other appropriate proceedings,
whether for the specific performance of any covenant or agreement
contained in this Agreement of otherwise, and whether or not the
Company shall have complied with any of the provisions hereof or
proceeded to take any action authorized or permitted under
applicable law. Each and every remedy of the Trustee, and each
of them, shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under
the Indenture or now or hereafter existing at law or in equity or
by statute.
8.3. Attorney-in-Fact. The Company hereby constitutes
the Trustees (and each of the Trustees) with authority to act
without the other, its true and lawful attorney, irrevocably,
with full power (in such attorney's name or otherwise), at any
time when a Default (as defined in the Indenture) has occurred
and is continuing, to enforce any of the obligations contained
herein or to take any action or institute any proceedings which
to the Trustees (or either of the Trustees) may seem necessary or
advisable in the premises.
ARTICLE IX.
Severability
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
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/ C. Xxxx Xxxxxx
Name: C. Xxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Corporate Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxxxxx
Title: Vice President
XXXXXXX X. XXXXXXXX
as Individual Trustee
/s/ Xxxxxxx X. XxxXxxxx
