Exhibit B-1
CAPACITY USE AND SERVICE AGREEMENT
AMONG
ENTERGY TECHNOLOGIES COMPANY
AND
ARKANSAS POWER & LIGHT COMPANY
GULF STATES UTILITIES COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE INC.
SYSTEM ENERGY RESOURCES, INC.
ENTERGY SERVICES, INC.
Dated as of _____________, 1995
INDEX
ARTICLE PAGE
1. Definitions 2
2. Agreement as to Use of Available Capacity 5
3. Services 7
4. Payment Obligations 9
5. Interruptions in Use 11
6. Insurance 11
7. ETC Rights and Responsibilities 12
8. Indemnification; Disclaimer of Warranties 12
9. Termination Events 13
10. Confidentiality 13
11. Miscellaneous Provisions 14
12. No Third Party Beneficiaries 15
13. Headings 15
14. Counterparts 15
15. Assignability 15
16. Independent Contractors 16
17. Additional Actions and Documents 16
18. Consents; Waivers 16
19. Signatures 16 - 17
Appendix A - Capacity Designation Form
Appendix B - Notices
CAPACITY USE AND SERVICE AGREEMENT
This Agreement is made effective this ___ day of
___________, 1995, by and among Entergy Technologies Company
("ETC") and Arkansas Power & Light Company ("AP&L"), Gulf States
Utilities Company ("GSU"), Louisiana Power & Light Company
("LP&L"), Mississippi Power & Light Company ("MP&L"), New Orleans
Public Service Inc. ("NOPSI") (AP&L, GSU, LP&L, MP&L, and NOPSI
sometimes being referred to herein, collectively, as the "System
Operating Companies," and each individually as a "System
Operating Company"), System Energy Resources, Inc. ("SERI"), and
Entergy Services, Inc. ("ESI").
W I T N E S S E T H
WHEREAS, the System Operating Companies, SERI and ESI, for
itself and in its capacity as agent for the System Operating
Companies and SERI (all of the foregoing being referred to herein
collectively as the "Owners," and each individually as an
"Owner"), own and operate the component parts of the Backbone
System (as hereinafter defined); and
WHEREAS, the Owners propose to make available to ETC
capacity of the Backbone System not currently needed for use by
the System Operating Companies, SERI or ESI; and
WHEREAS, ETC proposes, among other things, to take and pay
for such capacity and to provide "long haul" or "carrier of
carriers" telecommunications services by making such capacity
commercially available to third parties; and
WHEREAS, in connection with making such unused capacity
available to ETC, the Owners and ESI, in its capacity as operator
of the Backbone System on behalf of the Owners (the "Operator"),
are willing to provide, and ETC desires to receive and is willing
to pay for, certain ancillary operations and maintenance
services.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, and subject to the terms and conditions
contained herein, the parties hereby agree as follows:
1. DEFINITIONS
As used herein the following terms shall have the
following meanings, unless the context otherwise requires:
1.1 "Agreement" means this Capacity Use and Service
Agreement, including the Appendices annexed hereto, as
in effect from time to time, and any amendment thereof.
1.2 "Available Capacity" means the amount of bandwidth
in increments of three DS-3 Channels designated as
available to ETC by the Network Management Team
pursuant to Section 2.2 of Article 2 hereof.
1.3 "Backbone System" or "Network" means that portion
of the Owners' telecommunications network, that
connects the Owners' four major and eight minor
telecommunication hubs, together with the associated
high capacity digital technology, such as its
synchronous optical network and synchronous digital
microwave systems, and any future extensions thereof
and modifications, changes and additions thereto.
1.4 "Business Day" means a day which is not a
Saturday, Sunday or holiday observed by Entergy
Corporation or any affiliate thereof, and which is not
a day when banking institutions are authorized to be
closed in the cities of New Orleans, Louisiana, Little
Rock, Arkansas, or New York, New York.
1.5 "Capacity" means the total Channel capabilities of
each electronically lighted Segment between any two
terminating points on the Network.
1.6 "Capacity Use Charge" has the meaning set forth in
Section 4.1 of Article 4 hereof.
1.7 "Channel" means a two point electronically lighted
channel for the simultaneous two-way transmission of
asynchronous serial bipolar data at some specified
minimal rate.
1.8 "Costs" has the meaning set forth in Section 4.1.1
and 4.1.2 of Article 4 hereof.
1.9 "DS-1 Signal" or "DS-1 Channel" means a two point
Channel for the simultaneous two-way transmission of
asynchronous serial bipolar data at a minimal rate of
1.544 megabits per second ("mbs"). A DS-1 Channel is
made up of 24 individual 64 kilobits per second
("kbs")circuits.
1.10 "DS-3 Signal" or "DS-3 Channel" means a two point
Channel for the simultaneous two-way transmission of
asynchronous serial bipolar data at a minimal rate of
44.736 mbs. A DS-3 Channel is made up of 672
individual 64 kbs circuits.
1.11 "Emergency Restoration" means a method of
telecommunications restoration whereby, in the event of
an unexpected loss of a primary route or Channel,
priority telecommunications traffic will be transferred
to available and uncommitted capacity over an alternate
route or Channel.
1.12 "Entergy System" means Entergy Corporation, a
Delaware corporation, and its various direct and
indirect subsidiaries, which, as of the date of this
Agreement, include but are not limited to each of the
parties hereto.
1.13 "Facilities Charge" has the meaning set forth in
Section 4.1.1 of Article 4 hereof.
1.14 "Force Majeure Event" means an event or
circumstance reasonably beyond the control of a party,
including but not limited to acts of God; acts of war;
civil commotion; riot; strike; lockout; acts under
color of governmental authority (either sovereign or
contractual) or orders, regulations or statutes
promulgated by governments, governmental agencies or
instrumentalities, or courts; fires; floods;
earthquakes; storms and other natural catastrophes;
perturbations in telecommunications transmission; and
the inability to obtain suitable equipment or
components thereof.
1.15 "Full-time" means twenty-four (24) hours per day,
seven (7) days per week.
1.16 "Interruption" has the meaning set forth in
Section 5.1 of Article 5 hereof.
1.17 "Network Performance Standards" are those
performance standards for operating the Network
established by the Owners and the Operator and agreed
to by ETC.
1.18 "Network" has the meaning set forth in Section
1.3 hereof.
1.19 "Network Management" means the deployment and
coordination of resources within the Entergy System to
plan, analyze, evaluate, design, expand, operate and
administer the Network in order to meet service level
objectives and Network Performance Standards at all
times at a reasonable cost.
1.20 "Network Management Center" means the primary
location for the implementation of Network Management
services, which shall be designated by the Operator to
ETC in writing.
1.21 "Network Management Team" means the team,
consisting of designated employees of ESI, responsible
for Network Management.
1.22 "O&M Charge" has the meaning set forth in Section
4.1.2 of Article 4 hereof.
1.23 "Operating Procedures" means the procedures for
operating the Network agreed upon by the parties
hereto.
1.24 "Segment" means a fiber-optic segment between two
terminating points within the Network that is installed
and is electronically lighted and operational at a
level that meets the Network Performance Standards.
The Segments shall be designated by the Operator from
time to time in a Capacity Designation Schedule as set
forth in Appendix A hereto.
1.25 "Telecommunications Facilities" means the
hardware, software and supporting facilities, equipment
and property that comprise the Network, including but
not limited to buildings, towers, antennas, microwave
radios, cables, generators, battery systems, chargers,
multiplexers, jackfields, and channel service units,
whether owned by a company within the Entergy System or
owned by third parties but subject to agreements
permitting the use thereof by any Entergy System
company.
1.26 "Use Commencement Date" means the first date that
Available Capacity is offered to and accepted by ETC
pursuant to this Agreement.
2. AGREEMENT AS TO USE OF AVAILABLE CAPACITY
2.1 Subject to the terms and conditions of this
Agreement, the Owners and the Operator agree to make
available for use by ETC such capacity on the Backbone
System as shall be designated pursuant to Section 2.2
hereof by the Network Management Team as Available
Capacity, and ETC agrees to take and pay for such
Available Capacity.
2.2 As soon as reasonably possible after the execution
and delivery of this Agreement and thereafter not less
frequently than once per year, on or prior to June 30
of each year, or more frequently if deemed appropriate
by the Owners and the Operator, each Owner shall submit
or cause to be submitted to the Network Management Team
a schedule in substantially the form of Appendix A
hereto, designating (i) the amount of bandwidth in
increments of three DS-3 Channels on a Segment-by-
Segment basis, that is not currently required to
support the Owners' internal utility telecommunications
requirements and (ii) the period or periods during
which such bandwidth is not expected to be required for
such purposes. The Network Management Team shall
consolidate such data and eliminate redundancy as it
deems appropriate and shall promptly submit to ETC a
Capacity Designation Schedule substantially in the form
of said Appendix A that designates the amount of
bandwidth, in increments of three DS-3 Channels on a
Segment-by-Segment basis throughout the Network, that
is available for a period of not less than three years
("Available Capacity") and the period or periods from
and after the date of said schedule during which such
Available Capacity is expected to continue to be
available.
2.3 ETC shall take and pay for the Available Capacity
and shall have the exclusive right to commercialize all
of the Available Capacity along each Segment of the
Network by marketing the same in the long-haul carrier
of carriers market to third parties (which, subject to
applicable statutes, ordinances and/or regulations, may
include direct or indirect non-utility subsidiaries of
Entergy Corporation); provided, however, that the
commercialization of such Available Capacity shall not
(i) exceed the amount and the term of availability
thereof, (ii) affect the amount of Capacity reserved by
the Owners or the Operator or the Owners' or Operator's
use thereof or (iii) subject the Owners or the Operator
to regulation by state or local governments or agencies
thereof as a telecommunications utility or common
carrier. ETC shall have the right to enter into
agreements authorizing third parties to use Available
Capacity for any lawful purpose. ETC shall include in
each such agreement a declaration that ETC's and such
third parties' right to use Capacity may not (i) affect
the amount of Capacity reserved by the Owner or the
Operator or the Owners' or Operator's use thereof or
(ii) subject the Owners or the Operator to regulation
by state or local governments or agencies thereof as a
telecommunications utility or common carrier.
2.4 ETC and one or more of the Owners may also enter
into agreements from time to time under which ETC shall
have the right to commercialize Capacity on any Segment
of the Network that the respective Owner(s)
determine(s) will not be used for utility purposes
during the ensuing three years. Any such agreement
shall be in writing and shall be considered to be an
amendment to, and shall otherwise be governed by the
terms (including without limitation the payment
obligation terms) of, this Agreement.
2.5 Notwithstanding any other provisions of this
Agreement, each Owner and the Operator shall have the
right, upon 90 days' written notice to ETC, to regain
the use of all or a portion of the Capacity on any
Segment of the Network theretofore made available to
ETC pursuant to this Agreement, provided that (a) the
use of such Capacity is needed for a valid electric or
gas utility purpose, (b) the Owners and the Operator
shall have made reasonable efforts to find alternate
telecommunications capacity to meet the need for such
Capacity and (c) the lack of such Capacity will have a
meaningful adverse effect on the utility operations of
any of the Owners or the Operator. Any such Capacity
regained by an Owner or the Operator from ETC pursuant
to this Section 2.5 shall immediately cease to be
Available Capacity for the purposes of this Agreement.
At ETC's option, it may provide, at its own expense,
alternate equivalent telecommunications capacity in
lieu of returning Capacity to an Owner or the Operator
pursuant to this Section 2.5. Regardless of whether
ETC returns Capacity to an Operating Company or
provides alternate telecommunications capacity at ETC's
expense in lieu thereof, ETC shall have no obligation
to pay to any Owner a Facilities Charge or O&M Charge
with respect to Capacity that shall no longer be
Available Capacity or for which ETC has provided
alternate telecommunications capacity.
2.6 The Owners and ESI shall not be entitled, without
ETC's consent, to designate as Additional Capacity
hereunder any Capacity on the Network not existing or
contemplated on the date of this Agreement, which
results from technological improvements or enhancements
to the Network made otherwise than for reasonable
utility purposes.
2.7 It is the intent of the parties that Available
Capacity under this Agreement shall be made available
by the Owners to ETC and by ETC to its customers on a
"private carrier" basis.
2.8 Anything in this Agreement to the contrary
notwithstanding, ETC expressly acknowledges and agrees
that each Owner shall continue to exercise licensee
control of its Telecommunications Facilities that are
subject to this Agreement and be responsible therefor
under applicable laws and governmental rules and
regulations. ETC further agrees that its use of
Available Capacity hereunder shall be in accordance
with applicable laws and governmental rules and
regulations.
3. SERVICES
3.1 Services provided by Owner or Operator. Subject
to the terms and conditions of this Agreement, each
Owner agrees to perform the following services in
respect of its portion of the Backbone System, the
costs and expenses of which services shall be borne and
paid for as provided in Article 4 hereof.
3.1.1 Each Owner and/or the Operator shall
provide or cause to be provided the installation and
operation of all Telecommunications Facilities,
electronic equipment and fiber-optic cable required for
the efficient and effective operation of its portion of
the Network. Installation shall include, but not be
limited to, the procurement and installation of cable
and equipment, regardless of type, required at a
telecommunications facility, together with the labor
and materials required to support this function.
Operation of such facilities and equipment shall be
conducted in accordance with the procedures set forth
in the Network Operations Manual.
3.1.2 The Owners and the Operator shall provide
or cause to be provided the maintenance and repair of
all Telecommunications Facilities, comprising their
respective portions of the Network and, in accordance
with existing arrangements between the Owner and the
Operator, the Operator's portion of the Network, so as
to enable the Network to be and remain in good and
usable condition at all times at a level that meets or
exceeds the Network Performance Standards. Provision
of maintenance shall be both in the form of (a)
preventive maintenance in accordance with manufacturer
recommendations and the Statement of Technical
Standards and (b) corrective maintenance, including the
removal of any broken equipment, forwarding the same to
the appropriate vendor for repair, testing upon return,
and reinstallation in, or re-entry into the spare
inventory of, the Network.
3.1.3 Each Owner and ESI shall replace or cause
to be replaced Telecommunications Facilities for which
it has ownership or responsibility, that have been
damaged or that have deteriorated due to normal usage,
in order to maintain the Network in working order at a
standard meets or exceeds the applicable Network
Performance Standards.
3.1.4 Each Owner and the Operator shall provide
to ETC, or its designated representative, access to all
Telecommunications Facilities comprising such Owner's
or the Operator's portion of the Network, for the
purpose of routine inspections and audits to verify
compliance with established standards and practices set
forth in the Statement of Technical Standards and the
Network Operations Manual.
3.1.5 Each Owner and the Operator shall provide
the Available Capacity on its portion of the Network on
a Full-time basis using personnel that meet the
training and certification requirements outlined in the
Network Operations Manual.
3.1.6 Each Owner and the Operator agrees to
install, construct, operate and maintain such additions
and upgrades to the Network as ETC may reasonably
request, provided that ETC is not in default of its
obligations hereunder, and further provided that ETC
shall reimburse such Owner and/or the Operator within
30 days of receipt of a xxxx therefor for the full cost
of all such additions and upgrades plus 5% on an "as
built" basis.
3.2 Services Provided by Operator
3.2.1 In accordance with the Statement of
Technical Standards, the Network Operations Manual and
the Network Management and Operation Center Services
Manual, the Operator shall provide procurement, system
planning, engineering and design services, Network
management services, Network performance analysis
services, and quality assurance and standards
compliance audits for all Telecommunications
Facilities, subject to this Agreement, so as to ensure
the reliability and availability of the Available
Capacity.
3.2.2 The Operator shall provide and maintain a
Network Management and Operations Center ("Center")
that will provide Network monitoring services on a Full-
time basis. The Center shall be staffed by personnel
meeting the standards and certifications set forth in
the Network Operations Manual and the Network
Management and Operations Center Services Manual.
3.2.3 The Operator shall provide overall
restoration supervision and coordination between
Operator and ETC. In the event of an Emergency
Restoration, Operator shall have sole discretion to
determine whether capacity on any alternate route is
available or committed.
3.2.4 The Operator shall provide the engineering
and design, procurement and Network Management services
for such additions and upgrades to the Network as ETC
may reasonably request; provided that ETC is not in
default of its obligations hereunder and provided,
further, that ETC shall reimburse ESI within 30 days of
receipt of a xxxx therefor for the full cost of all
such services plus 5% on an "as provided" basis.
3.3 Services Provided by ETC.
3.3.1 ETC agrees to make available to the
Operator and the Owners alternate routing and
redundancy support for the Network to the extent
available from ETC and not in conflict with ETC's
customer contracts.
4. PAYMENT OBLIGATIONS
4.1 ETC agrees to pay each Owner and the Operator,
monthly in arrears, pursuant to invoices rendered on or
before the 15th day of each month for the preceding
month, which shall be paid by ETC on or before the
close of business on the tenth Business Day after the
receipt thereof, a Capacity Use Charge in an amount
equal to the Facilities Charge plus the O&M Charge in
respect of the Available Capacity provided by such
Owner or ESI, multiplied by a factor of 1.05 [i.e., Use
Charge = (Facilities Charge + O&M Charge) x 1.05].
4.1.1 The Facilities Charge shall be a monthly
charge calculated by determining the ratio of Available
Capacity to the total Capacity of the Network, on a
Segment-by-Segment basis and multiplying the result by
(i) an amount that is equal to the fully allocated
costs of the electronically lighted fiber-optic cable
comprising the Backbone System and (ii) an amount that
is equal to the aggregate costs of the
Telecommunications Facilities other than fiber-optic
cable, comprising the Backbone System, in each case
which normally would be included in a revenue
requirement calculation for ratemaking purposes. The
resulting allocated cost determined by adding the
results of calculation (i) and (ii) in the preceding
sentence will be used to calculate a monthly revenue
requirement, which amount shall be the Facilities
Charge.
4.1.2 The O&M Charge shall be a monthly charge
calculated, on a fully allocated basis (i.e., based on
the proportion that the Available Capacity bears to the
total Capacity of the asset), on the basis of the
operation and maintenance costs incurred during each
month by the Owners and the Operator respectively, in
respect of the applicable Telecommunications
Facilities. Operation and maintenance costs shall mean
verifiable direct and indirect costs, including but not
limited to the fixed and variable costs of operation,
maintenance, administrative overhead and other costs
normally expensed for accounting purposes and not
included in the calculation of the Facilities Charge
hereunder.
4.2 If ETC, at its own expense, purchases and causes
to be installed electronic equipment or other tangible
or intangible property that enhances the capabilities
of the Network, then ETC shall not incur any additional
Facilities Charge in respect thereof, but shall incur
only the O&M Charge (if any) with respect thereto. Any
such equipment or property installed on premises owned
by an Owner or the Operator shall be contributed by ETC
to such Owner or the Operator, as the case may be.
4.3 The Owners hereby designate ESI to serve as their
agent for accounting, billing and collection purposes
under this Agreement. Promptly after the end of each
month, ESI shall calculate the Capacity Use Charge and
any additional amounts payable by ETC to each Owner and
to ESI in respect of the Available Capacity and shall
send to ETC an invoice therefor in accordance with
Section 4.1 of Article 4 hereof.
4.4 ETC agrees to make payments due hereunder in
accordance with Section 4.1 of Article 4 hereof.
Payments shall be made to ESI for disbursement to the
appropriate Owner and/or itself.
4.5 In the event that any sums are not paid in full
when due, a late payment charge shall accrue on the
outstanding balance then due at a rate equal to the
lower of 1.5% per month or the maximum lawful rate of
interest that may be charged, for each month or part
thereof that such payment is overdue.
5. INTERRUPTIONS IN USE
5.1 Any period during which Available Capacity it
fails to meet the Network Performance Standards shall
be deemed an "Interruption".
5.2 The Owners and the Operator shall use their best
efforts to correct any Interruption to the Network upon
recognition by a party and appropriate notification to
the Operator that an Interruption has occurred and is
continuing; provided, however, that nothing herein
shall be construed to diminish any obligation of a
System Operating Company to restore electric service to
its customers.
5.3 In the event of an Interruption in the access
facilities of ETC's customers or any other service
provided by parties other than the parties hereto,
neither the Owners nor the Operator shall have any
liability to ETC or to any party to whom ETC shall have
provided Available Capacity, and ETC shall continue to
be liable for all payments as specified in Article 4
hereof.
5.4 The parties hereto agree to coordinate planned
outages on the Network, so that ETC shall have
sufficient notice of such outages to provide alternate
routes for its customers when possible, or to negotiate
an outage with its customers when no alternative
routing is possible.
6. INSURANCE
6.1 Throughout the term of this Agreement, each Owner
shall insure the Telecommunications Facilities
comprising the Backbone System against such risks and
for such amounts and subject to such deductibles and
self-insurance as is customary in the electric utility
business. The Owners shall pay all premiums and other
expenses for such customary coverage. Any additional
insurance with respect to the Backbone System shall be
obtained only upon the written request and at the sole
expense of ETC. The parties agree that if any
Telecommunications Facilities comprising the Backbone
System are damaged, the insurance proceeds received
shall be utilized for the repair or replacement thereof
until it is in good working condition and the Available
Capacity meets the Network Performance Standards.
7. ETC RIGHTS AND RESPONSIBILITIES
7.1 In connection with its use of the Available
Capacity, ETC shall comply with all laws and
governmental rules and regulations, both current and as
may come into effect, that are applicable to the use of
such Capacity. The failure of any party hereto to so
comply or to obtain any necessary governmental
authorization or approval that shall be necessary for
ETC to use such Capacity shall not relieve ETC of its
payment obligations under this Agreement; provided,
however, that if a party hereto shall be unable, after
having made a reasonable, good faith effort to obtain
any necessary governmental approval or license or to
comply with any law or governmental regulation or order
necessary to exercise its rights or perform its
obligations hereunder in whole or in material part,
then such party shall have the right to terminate this
Agreement.
8. INDEMNIFICATION; DISCLAIMER OF WARRANTIES
8.1 ETC agrees to indemnify and hold harmless each
Owner and the Operator, and their respective
affiliates, officers, directors, employees, agents and
permitted assigns, from and against any and all losses,
claims, damages or liabilities to which they or any of
them may become subject and to reimburse each of them
for any legal or other expenses (including reasonable
attorneys' fees) incurred by them in connection with
defending any action, suit, proceeding or governmental
investigation insofar as such liabilities, actions
suits, proceedings or investigations arise out of or
are related to (a) ETC's use of Available Capacity or
(b) the use by any customer of ETC of the Available
Capacity.
8.2 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
THE OWNERS AND THE OPERATOR MAKE NO WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE OF THE BACKBONE SYSTEM,
RIGHTS OF WAY, THE AVAILABLE CAPACITY OR ANY SERVICES
OR PROPERTY FURNISHED UNDER THIS AGREEMENT, WHETHER
ARISING UNDER LAW OR IN EQUITY.
8.3 In no event shall any System Operating Company,
SERI, ESI or any of them, or any affiliate, director,
officer, shareholder, employee, agent, or permitted
assign, of any of them, be liable, in contract, tort or
otherwise, for any incidental or consequential damages
of any nature arising at any time or from any cause
whatsoever, including specifically but without
limitation, loss of profits or revenue, loss of full or
partial use of any telecommunications capacity, loss of
goodwill, claims of ETC customers or other damages.
9. TERMINATION EVENTS
9.1 In the event of an Interruption not caused in
whole or in part by ETC's own negligence or willful
misconduct, for which comparable Capacity is not
offered promptly by the Owners, ETC, at its option, may
terminate its obligation to take and pay for Available
Capacity along the applicable Segment of the Network
upon five business days' notice to the party that owns
such Segment.
9.2 In the event that ETC fails to pay any amount due
hereunder and such failure continues for 30 days, then
the party to which such payment is due may terminate
its obligations pursuant to this Agreement upon ten
business days' written notice to ETC and the other
parties to this Agreement.
9.3 In the event that ETC ceases conducting business
in the normal course , becomes insolvent, makes a
general assignment for the benefit of creditors,
suffers or permits the appointment of a receiver for
its business or assets or files voluntarily or has
filed against it involuntarily a petition seeking
relief under applicable bankruptcy laws, then each
Owner and/or the Operator may terminate this Agreement
upon ten business days' notice to ETC and to the other
parties hereto.
9.4 Nothing in this Agreement shall prevent the
parties hereto from terminating this Agreement at any
time by mutual consent, provided that such termination
shall not relieve a party from any liability or
obligation incurred hereunder prior such termination.
10. CONFIDENTIALITY
10.1 Subject to the exceptions set forth below, each
of the parties hereto shall hold in confidence any non-
public information obtained by it pursuant to the
performance of the obligations required hereby or the
transactions contemplated hereby, including but not
limited to, information concerning technology and
administrative, marketing and financial activities
("Proprietary Information"). The parties hereto
acknowledge and agree that all such Proprietary
Information, not otherwise known to the public, is
confidential and shall not be disclosed to third
persons without the prior written consent of the
parties hereto, except:
(a) to the extent necessary to comply with law or
the valid order of a governmental agency or court of
competent jurisdiction; provided, however, that the
party making such disclosure shall seek confidential
treatment of such Proprietary Information; or
(b) as part of any normal reporting and review
procedure with auditors and attorneys, or with any
outside lender, or any proposed or actual successor in
interest; provided, however, that prior to such
disclosure, the third party to receive such disclosure
shall agree to maintain the confidentiality of the
Proprietary Information.
11. MISCELLANEOUS PROVISIONS
11.1 Term; Renewal. The initial term of this
Agreement shall be five (5) years commencing on the Use
Commencement Date and ending on the fifth anniversary
of such date; and ETC shall have the right to renew
this Agreement for an additional five (5) year term,
upon giving notice thereof to the Owners and the
Operator not less than ninety (90) days prior to the
expiration of the initial term hereof.
11.2 Notices. Any and all notices, demands, requests
or other communications required to be given in
connection with this Agreement shall be in writing and
shall be directed to the person at the addresses
designated on Appendix B hereto. Such notices,
demands, requests or other communications may be
transmitted to the receiving party by facsimile (with
electronic confirmation of receipt) or other electronic
means; provided that the original is sent to the
receiving party by mail or courier.
11.3 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the
State of Louisiana, regardless of the choice of law
provisions thereof.
11.4 Severability. In the event that any one or more
of the provisions of this Agreement is for any reason
held to be invalid or unenforceable, the remaining
provisions of this Agreement shall be unimpaired.
11.5 Entire Agreement; Amendments; Effect of Waivers.
This Agreement comprises the entire agreement of the
parties hereto with respect to the subject matter
hereof. This Agreement may be modified, changed or
amended only by an express written agreement signed by
the parties hereto. The failure of any party to insist
upon strict adherence to any provision of this
Agreement on any occasion shall not be considered a
waiver of any right thereafter to insist upon strict
adherence to that provision or any other provision of
this Agreement.
12. NO THIRD PARTY BENEFICIARIES
12.1 The provisions of this Agreement are for the
benefit only of the parties hereto, and the parties
hereto do not intend to create or to confer any
benefits upon any persons, firms or entities not a
party hereto, and no third party shall have the right
to enforce the provisions hereof.
13. HEADINGS
13.1 The headings of the sections and subsections of
this Agreement are for purposes of reference only and
do not evidence the intentions of the parties.
14. COUNTERPARTS
14.1 This Agreement may be executed in multiple
counterpart originals, each of which, when fully
executed, shall be deemed to have the same force and
effect as an original.
15. ASSIGNABILITY
15.1 This Agreement and the rights and obligations
hereunder shall be assignable by a party hereto only
with the written consent of the other parties hereto.
16. INDEPENDENT CONTRACTORS
16.1 The relationship of the parties pursuant to this
Agreement is intended to be that of independent
contractor and nothing herein shall be interpreted as
creating a partnership or joint venture among the
parties hereto or any of them.
17. ADDITIONAL ACTIONS AND DOCUMENTS
17.1 Each of the parties hereto agrees to take such
actions and execute and deliver such documents and
instruments as shall be found reasonably necessary or
appropriate to confirm or to further implement the
terms and intent of this Agreement.
18. CONSENTS; WAIVERS
18.1 Any consent or waiver requested pursuant hereto
shall be given or withheld, in the discretion of the
relevant party; provided, however, that this Agreement
and the conduct of the parties hereunder shall be
subject to standards of commercial reasonableness.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed in their respective corporate
names by their respective representatives duly authorized
thereunto effective as of the day and year first above
written.
ENTERGY TECHNOLOGIES COMPANY
By:____________________________
ARKANSAS POWER & LIGHT COMPANY
By:_____________________________
GULF STATES UTILITIES COMPANY
By:______________________________
LOUISIANA POWER & LIGHT COMPANY
By:______________________________
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
NEW ORLEANS PUBLIC SERVICE INC.
By:______________________________
SYSTEM ENERGY RESOURCES, INC.
By:_____________________________
ENTERGY SERVICES, INC.
By:_____________________________
