Exhibit 4(d)
U.S. $2,000,000,000
CREDIT AGREEMENT
Dated as of May 25, 2005
Among
ENTERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
CITIBANK, N.A.
as Administrative Agent and LC Issuing Bank
and
ABN AMRO BANK N.V.
as LC Issuing Bank
CITIGROUP GLOBAL MARKETS INC.
Sole Lead Arranger & Book Manager
ABN AMRO N.V.
BNP PARIBAS
JPMORGAN CHASE BANK
and
THE ROYAL BANK OF SCOTLAND PLC
Co-Syndication Agents
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. CERTAIN DEFINED TERMS. 1
SECTION 1.02. COMPUTATION OF TIME PERIODS. 11
SECTION 1.03. ACCOUNTING TERMS. 11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 11
SECTION 2.01. THE ADVANCES. 11
SECTION 2.02. MAKING THE ADVANCES. 12
SECTION 2.03. LETTERS OF CREDIT. 13
SECTION 2.04. FEES. 16
SECTION 2.05. ADJUSTMENT OF THE COMMITMENTS. 17
SECTION 2.06. REPAYMENT OF ADVANCES. 18
SECTION 2.07. INTEREST ON ADVANCES. 18
SECTION 2.08. ADDITIONAL INTEREST ON EURODOLLAR RATE
ADVANCES. 19
SECTION 2.09. INTEREST RATE DETERMINATION. 19
SECTION 2.10. CONVERSION OF ADVANCES. 20
SECTION 2.11. PREPAYMENTS. 21
SECTION 2.12. INCREASED COSTS. 21
SECTION 2.13. ILLEGALITY. 22
SECTION 2.14. PAYMENTS AND COMPUTATIONS. 22
SECTION 2.15. TAXES. 23
SECTION 2.16. SHARING OF PAYMENTS, ETC. 25
SECTION 2.17. NOTELESS AGREEMENT; EVIDENCE OF
INDEBTEDNESS. 26
SECTION 2.18. EXTENSION OF TERMINATION DATE. 27
ARTICLE III CONDITIONS OF EXTENSIONS OF CREDIT 28
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL
EXTENSIONS OF CREDIT. 28
SECTION 3.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF
CREDIT. 29
SECTION 3.03. CONDITIONS PRECEDENT TO EXTENSIONS OF
CREDIT AFTER JUNE 30, 2007. 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES 31
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
BORROWER. 31
ARTICLE V COVENANTS OF THE BORROWER 33
SECTION 5.01. AFFIRMATIVE COVENANTS. 33
SECTION 5.02. NEGATIVE COVENANTS. 36
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES 37
SECTION 6.01. EVENTS OF DEFAULT. 37
SECTION 6.02. REMEDIES. 39
SECTION 6.03. CASH COLLATERAL ACCOUNT. 39
ARTICLE VII THE AGENT 40
SECTION 7.01. AUTHORIZATION AND ACTION. 40
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. 40
SECTION 7.03. CITIBANK AND AFFILIATES. 41
SECTION 7.04. LENDER CREDIT DECISION. 41
SECTION 7.05. INDEMNIFICATION. 41
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENT. 42
ARTICLE VIII MISCELLANEOUS 42
SECTION 8.01. AMENDMENTS, ETC. 42
SECTION 8.02. NOTICES, ETC. 43
SECTION 8.03. NO WAIVER; REMEDIES. 43
SECTION 8.04. COSTS AND EXPENSES; INDEMNIFICATION. 43
SECTION 8.05. RIGHT OF SET-OFF. 45
SECTION 8.06. BINDING EFFECT. 45
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS. 45
SECTION 8.08. GOVERNING LAW. 50
SECTION 8.09. CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. 50
SECTION 8.10. EXECUTION IN COUNTERPARTS. 50
SECTION 8.11. ELECTRONIC COMMUNICATIONS. 50
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule II - Commitment Schedule
Schedule 2.03(h) - Letters of Credit
EXHIBITS
Exhibit A-1 - Form of Notice of Borrowing
Exhibit A-2 - Form of Notice of Conversion
Exhibit A-3 - Form of Request for Issuance
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Opinion of Counsel for the
Borrower
Exhibit D - Form of Opinion of Special New York
Counsel to the Administrative Agent
CREDIT AGREEMENT
Dated as of May 25, 2005
ENTERGY CORPORATION, a Delaware corporation (the
"Borrower"), the banks (the "Banks") listed on the signature
pages hereof and Citibank, N.A. ("Citibank"), as administrative
agent (the "Administrative Agent") for the Lenders hereunder and
as LC Issuing Bank (as defined below), ABN AMRO Bank N.V., as LC
Issuing Bank, and the other LC Issuing Banks party hereto from
time to time, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Additional Lender" has the meaning specified in
Section 2.05(b)(i).
"Advance" means an advance by a Lender to the Borrower
as part of a Borrowing and refers to a Base Rate Advance or
a Eurodollar Rate Advance, each of which shall be a "Type"
of Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person.
"Agreement" means this Credit Agreement, as amended,
supplemented or modified from time to time.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance
"Applicable Margin" means, (i) for any Base Rate
Advance, the Base Rate Margin interest rate per annum set
forth below in the columns identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5 and Level 6, and (ii) for any
Eurodollar Rate Advance, (A) on any date the Utilization
Percentage equals or is less than 50%, the Eurodollar Margin
interest rate per annum set forth below in the columns
identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5
and Level 6 and (B) on any date the Utilization Percentage
exceeds 50%, the Utilized Eurodollar Margin interest rate
per annum set forth below in the columns identified as ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5 and Level 6, in each
case, determined by reference to the Relevant Ratings.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 Level 6
_________________________________________________________________________
S&P Relevant Relevant Relevant Relevant Relevant Relevant
Ratings Ratings Ratings Ratings Ratings Ratings
Moody's at least Less than Less than Less than Less than below
A+ or A1 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇*
but at but least but at but at and
least at least least least BBB Baa2*
A or A2 A- or A3 BBB+ or Baa2
or Baa1
_________________________________________________________________________
Interest Rate
Per Annum
_________________________________________________________________________
Eurodollar 0.210% 0.300% 0.350% 0.475% 0.575% 0.800%
Margin
_________________________________________________________________________
Base Rate 0.000% 0.000% 0.000% 0.000% 0.000% 0.500%
Margin
_________________________________________________________________________
Utilized 0.310% 0.400% 0.475% 0.600% 0.700% 0.925%
Eurodollar
Margin
_________________________________________________________________________
*or unrated
Any change in the Applicable Margin will be effective as of
the date on which S&P or Moody's, as the case may be,
announces the applicable change in any Senior Debt Rating.
"Approved Fund" means, with respect to any Lender that
is a fund that invests in bank loans, any other fund that
invests in commercial loans and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee of that
Lender, and accepted by the Administrative Agent, in
substantially the form of Exhibit B hereto.
"Base Rate" means, for any period, a fluctuating
interest rate per annum at all times equal to the higher of:
(i) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(ii) 1/2 of 1% per annum above the Federal Funds Rate in effect
from time to time.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a).
"Borrowing" means a borrowing consisting of
simultaneous Advances of the same Type made by each of the
Lenders pursuant to Section 2.01 or Converted pursuant to
Section 2.09 or 2.10.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Capitalization" means, as of any date of
determination, with respect to the Borrower and its
subsidiaries determined on a consolidated basis, an amount
equal to the sum of (i) the total principal amount of all
Debt of the Borrower and its subsidiaries outstanding on
such date, (ii) Consolidated Net Worth as of such date and
(iii) to the extent not otherwise included in
Capitalization, all preferred stock and other preferred
securities of the Borrower and its subsidiaries, including
preferred securities issued by any subsidiary trust,
outstanding on such date.
"Cash Collateral Account" has the meaning assigned to
that term in Section 6.03.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Increase" has the meaning specified in
Section 2.05(b)(i).
"Common Equity" shall mean the stock, shares or other
ownership interests in the issuer thereof howsoever
evidenced (including, without limitation, limited liability
company membership interests) that has ordinary voting power
for the election of directors, managers or trustees (or
other persons performing similar functions) of the issuer,
as applicable, provided that Preferred Equity, even if it
has such ordinary voting power, shall not be Common Equity.
"Consolidated Net Worth" means the sum of the capital
stock (excluding treasury stock and capital stock subscribed
for and unissued) and surplus (including earned surplus,
capital surplus and the balance of the current profit and
loss account not transferred to surplus) accounts of the
Borrower and its subsidiaries appearing on a consolidated
balance sheet of the Borrower and its subsidiaries prepared
as of the date of determination in accordance with generally
accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to
in Section 4.01(e), after eliminating all intercompany
transactions and all amounts properly attributable to
minority interests, if any, in the stock and surplus of
subsidiaries.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Advances of one Type into Advances of
another Type or the selection of a new, or the renewal of
the same, Interest Period for Eurodollar Rate Advances
pursuant to Section 2.09 or 2.10.
"Debt" of any Person means (without duplication) all
liabilities, obligations and indebtedness (whether
contingent or otherwise) of such Person (i) for borrowed
money or evidenced by bonds, debentures, notes, or other
similar instruments, (ii) to pay the deferred purchase price
of property or services (other than such obligations
incurred in the ordinary course of business on customary
trade terms, provided that such obligations are not more
than 30 days past due), (iii) as lessee under leases which
shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases,
(iv) under reimbursement agreements or similar agreements
with respect to the issuance of letters of credit (other
than obligations in respect of letters of credit opened to
provide for the payment of goods or services purchased in
the ordinary course of business), (v) under any Guaranty
Obligations and (vi) liabilities in respect of unfunded
vested benefits under plans covered by Title IV of ERISA.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the
Administrative Agent.
"Domestic Regulated Utility Subsidiary" means a direct
or indirect domestic subsidiary of the Company engaged in
generation, transmission or distribution of electricity or
the transmission or distribution of natural gas that is
regulated as to rates on a cost of service basis by the
Federal Energy Regulatory Commission (or successor agency)
or a state or local governmental body.
"Eligible Assignee" means a Person (i) (A) that is
(1) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in
excess of $500,000,000; (2) a commercial bank organized
under the laws of any other country which is a member of the
OECD, or a political subdivision of any such country, and
having total assets in excess of $500,000,000, provided that
such bank is acting through a branch or agency located in
the United States or another country which is also a member
of OECD; or (3) a Lender, a financial institution Affiliate
of any Lender or an Approved Fund of any Lender immediately
prior to an assignment and (B) whose long-term public senior
debt securities are rated at least "BBB-" by S&P or at least
"Baa3" by Moody's; or (ii) that is approved by the Borrower
(whose approval shall not be unreasonably withheld), the LC
Issuing Banks and the Administrative Agent.
"Entergy Arkansas" means Entergy Arkansas, Inc., an
Arkansas corporation, or its successors and permitted
assigns.
"Entergy Gulf States" means Entergy Gulf States, Inc.,
a Texas corporation, or its successors and permitted
assigns.
"Entergy Louisiana" means Entergy Louisiana, Inc., a
Louisiana corporation, or its successors and permitted
assigns.
"Entergy Mississippi" means Entergy Mississippi, Inc.,
a Mississippi corporation, or its successors and permitted
assigns.
"Entergy New Orleans" means Entergy New Orleans, Inc.,
a Louisiana corporation, or its successors and permitted
assigns.
"Environmental Laws" means any federal, state or local
laws, ordinances or codes, rules, orders, or regulations
relating to pollution or protection of the environment,
including, without limitation, laws relating to hazardous
substances, laws relating to reclamation of land and
waterways and laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or
wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollution, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder, each
as amended and modified from time to time.
"ERISA Affiliate" of a Person or entity means any trade
or business (whether or not incorporated) that is a member
of a group of which such Person or entity is a member and
that is under common control with such Person or entity
within the meaning of Section 414 of the Internal Revenue
Code of 1986, and the regulations promulgated and rulings
issued thereunder, each as amended or modified from time to
time.
"ERISA Plan" means an employee benefit plan maintained
for employees of any Person or any ERISA Affiliate of such
Person subject to Title IV of ERISA.
"ERISA Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to PBGC), or (ii) the
withdrawal of the Borrower or any of its ERISA Affiliates
from an ERISA Plan during a plan year in which the Borrower
or any of its ERISA Affiliates was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (iii) the
filing of a notice of intent to terminate an ERISA Plan or
the treatment of an ERISA Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate an ERISA Plan by the PBGC or to
appoint a trustee to administer any ERISA Plan, or (v) any
other event or condition that would constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer any ERISA Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for the Interest Period for
each Eurodollar Rate Advance made as part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England, to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance made as part of such Borrowing and for a period
equal to such Interest Period. The Eurodollar Rate for the
Interest Period for each Eurodollar Rate Advance made as
part of the same Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from
the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions
of Section 2.09.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Lender for
the Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Credit Agreements" means (i) the three-year
Credit Agreement, dated as of May 13, 2004, among the
Borrower, certain banks, Citibank, as agent for such banks,
and the letter of credit issuing banks named therein and
(ii) the five-year Credit Agreement, dated as of December
14, 2004, among the Borrower, certain banks, Citibank, N.A.,
as agent for such banks, and the letter of credit issuing
banks named therein.
"Extension of Credit" means (i) the disbursement of the
proceeds of any Borrowing and (ii) the issuance of a Letter
of Credit or the amendment of any Letter of Credit having
the effect of extending the stated termination date thereof
or increasing the maximum amount available to be drawn
thereunder.
"Extension Notice Date" has the meaning specified in
Section 2.18(a).
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain letter agreement, dated
as of April 15, 2005, between the Borrower and Citigroup
Global Markets Inc., as amended, modified and supplemented
from time to time.
"Granting Lender" has the meaning specified in Section
8.07(i).
"Guaranty Obligations" means (i) direct or indirect
guaranties in respect of, and obligations to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, Debt of any Person and (ii) other
guaranty or similar obligations in respect of the financial
obligations of others, including, without limitation,
Support Obligations.
"Increasing Lender" has the meaning specified in
Section 2.05(b)(i).
"Interest Period" means, for each Advance made as part
of the same Borrowing, the period commencing on the date of
such Advance or the date of the Conversion of any Advance
into such an Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be 1, 2, 3 or 6 months (or
any period of less than one month that ends on the then-
scheduled Termination Date with respect to the Commitment of
the Lender making such Advance in the case of a Eurodollar
Rate Advance, as the Borrower may, upon notice received by
the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the then-scheduled Termination Date with
respect to the Commitment of the Lender making such Advance;
(ii) Interest Periods commencing on the same date for
Advances made as part of the same Borrowing shall be of
the same duration;and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, in the case of any Interest
Period for a Eurodollar Rate Advance, that if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day.
"Junior Subordinated Debentures" means any junior
subordinated deferrable interest debentures issued by any
Significant Subsidiary or Entergy New Orleans from time to
time.
"LC Fee" is defined in Section 2.04(b).
"LC Issuing Bank" means Citibank, ABN AMRO Bank N.V.
and one or more other Lenders or Affiliates thereof that may
be appointed from time to time by the Borrower to issue
Letters of Credit under this Agreement and that are
reasonably acceptable to the Administrative Agent, and "LC
Issuing Banks" shall mean the LC Issuing Banks collectively.
"LC Outstandings" means, on any date of determination,
the sum of the undrawn stated amounts of all Letters of
Credit that are outstanding on such date plus the aggregate
principal amount of all unpaid reimbursement obligations of
the Borrower on such date with respect to payments made by
the LC Issuing Banks under Letters of Credit.
"LC Payment Notice" is defined in Section 2.03(d).
"Lenders" means the Banks listed on the signature pages
hereof and each Person that shall become a party hereto
pursuant to Section 8.07.
"Letter of Credit" means letters of credit issued by an
LC Issuing Bank pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its subsidiaries shall be
deemed to own, subject to a Lien, any asset that it has
acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Majority Lenders" means at any time Lenders to which
are owed more than 50% of the then aggregate unpaid
principal amount of the Advances and participation
obligations with respect to the LC Outstandings, or, if
there are no Outstanding Credits, Lenders having more than
50% of the Commitments (without giving effect to any
termination in whole of the Commitments pursuant to
Section 6.02), provided, that for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall
be included in (i) the Lenders holding such amount of the
Advances or participation obligations with respect to the LC
Outstandings or having such amount of the Commitments or
(ii) determining the aggregate unpaid principal amount of
the Advances or participation obligations with respect to
the LC Outstandings or the total Commitments.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
three plan years made or accrued an obligation to make
contributions.
"Net Available Cash" from a Stock Disposition means
cash payments received therefrom net of all legal, title and
recording tax expenses, commissions and other fees and
expenses incurred, and all federal, state and local taxes
required to be paid or accrued as a liability under
generally accepted accounting principles, as a result of
such Stock Disposition.
"New SEC Order" means the order or orders of the SEC
under the Public Utility Holding Company Act of 1935
authorizing the Borrower to obtain Extensions of Credit and
to perform its obligations under this Agreement after June
30, 2007.
"Non-Consenting Lender" has the meaning specified in
Section 2.18(d).
"Non-Recourse Debt" means any Debt of any subsidiary of
the Borrower that does not constitute Debt of the Borrower,
any Significant Subsidiary or Entergy New Orleans.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"OECD" means the Organization for Economic Cooperation
and Development.
"Outstanding Credits" means, on any date of
determination, an amount equal to the sum of (i) the
aggregate principal amount of all Borrowings outstanding on
such date plus (ii) the LC Outstandings on such date, in
each case, after giving effect to all repayments and
prepayments of Advances and Reimbursement Amounts and all
reductions in the LC Outstandings on such date.
"PBGC" means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions
under ERISA.
"Percentage" means, for any Lender on any date of
determination, the percentage obtained by dividing such
Lender's Commitment on such day by the total of the
Commitments on such date, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency
thereof.
"Preferred Equity" shall mean any stock, shares or
other ownership interests in the issuer thereof howsoever
evidenced (including, without limitation, limited liability
company membership interests), whether with or without
voting rights, that is entitled to dividends or
distributions prior to the payment of dividends or
distributions with respect to Common Equity.
"Prepayment Event" means the occurrence of any event or
the existence of any condition under any agreement or
instrument relating to any Debt of a Significant Subsidiary
that is outstanding in a principal amount in excess of
$50,000,000 in the aggregate, which occurrence or event
results in the declaration of such Debt being due and
payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the
stated maturity thereof.
"Reference Banks" means Citibank, ABN AMRO Bank N.V.,
BNP Paribas, JPMorgan Chase Bank and The Royal Bank of
Scotland plc.
"Register" has the meaning specified in
Section 8.07(c).
"Reimbursement Amount" has the meaning specified in
Section 2.03(c).
"Relevant Ratings" means the Senior Debt Ratings of
Entergy Arkansas, Entergy Gulf States, Entergy Louisiana or
Entergy Mississippi assigned by ▇▇▇▇▇'▇ and S&P that
constitute the second lowest Senior Debt Ratings of all such
Persons assigned by ▇▇▇▇▇'▇ and S&P.
"Reportable Event" has the meaning assigned to that
term in Title IV of ERISA.
"Request for Issuance" means a request made pursuant to
Section 2.03(a) in the form of Exhibit A-3.
"S&P" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any
successor thereto.
"SEC" means the United States Securities and Exchange
Commission.
"SEC Order" has the meaning specified in
Section 3.01(a)(iii).
"Senior Debt Rating" means, as to any Person, the
rating assigned by ▇▇▇▇▇'▇ or S&P to the senior secured long-
term debt of such Person.
"SERI" means Systems Energy Resources, Inc., an
Arkansas corporation, or its successors and permitted
assigns.
"Significant Subsidiary" means Entergy Arkansas,
Entergy Gulf States, Entergy Louisiana, Entergy Mississippi,
SERI and any other Domestic Regulated Utility Subsidiary of
the Borrower: (i) the total assets (after intercompany
eliminations) of which exceed 5% of the total assets of the
Borrower and its subsidiaries or (ii) the net worth of which
exceeds 5% of the Consolidated Net Worth of the Borrower and
its subsidiaries, in each case as shown on the most recent
audited consolidated balance sheet of the Borrower and its
subsidiaries. In no event shall "Significant Subsidiary"
include any Domestic Regulated Utility Subsidiary that as of
March 31, 2005, (i) had total assets (after intercompany
eliminations) that were 5% or less of the total assets of
the Borrower and its subsidiaries as of such date or (ii)
had a net worth that was 5% or less of the Consolidated Net
Worth of the Borrower and its subsidiaries as of such date.
"SPC" has the meaning specified in Section 8.07(i).
"Stock Disposition" means, with respect to any Person,
the issuance, sale, lease, transfer, conveyance or other
disposition of (whether in one transaction or in a series of
transactions) any Common Equity (or stock or other
instruments convertible into Common Equity) of such Person.
"Support Obligations" means any financial obligation,
contingent or otherwise, of any Person guaranteeing or
otherwise supporting any Debt or other obligation of any
other Person in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such
Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the
purpose of assuring the owner of such Debt of the payment of
such Debt, (iii) to maintain working capital, equity
capital, available cash or other financial statement
condition of the primary obligor so as to enable the primary
obligor to pay such Debt, (iv) to provide equity capital
under or in respect of equity subscription arrangements so
as to assure any Person with respect to the payment of such
Debt or the performance of such obligation, or (v) to
provide financial support for the performance of, or to
arrange for the performance of, any non-monetary obligations
or non-funded debt payment obligations (including, without
limitation, guaranties of payments under power purchase or
other similar arrangements) of the primary obligor.
"Termination Date" means the earlier to occur of
(i) May 25, 2010, or, as to any Lender, such later date that
may be established for such Lender pursuant to Section 2.18,
and (ii) date of termination in whole of the Commitments and
each LC Issuing Bank's obligation to issue Letters of Credit
pursuant to Section 2.05 or Section 6.02 hereof.
"Utilization Percentage" means, as of any time for the
determination thereof, the percentage obtained by dividing
the aggregate Outstanding Credits by the aggregate
Commitments then in effect.
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from
a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means
"to but excluding".
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section 4.01(e) hereof.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower and to
participate in the reimbursement obligations of the Borrower in
respect of Letters of Credit from time to time on any Business
Day during the period from the date hereof until the Termination
Date with respect to the Commitment of such Lender in an
aggregate amount not to exceed at any time outstanding the amount
set opposite such Lender's name on Schedule II hereto or, if such
Lender has entered into any Assignment and Acceptance, set forth
for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c), as such amount may be reduced
pursuant to Section 2.05(a) or increased pursuant to
Section 2.05(b) (such Lender's "Commitment"). Each Borrowing
shall be in an amount not less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of
Advances of the same Type and, in the case of Eurodollar Rate
Advances, having the same Interest Period made or Converted on
the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the
Borrower may from time to time borrow, prepay pursuant to
Section 2.11 and reborrow under this Section 2.01; provided,
however, that at no time may the Outstanding Credits exceed the
aggregate amount of the Commitments.
SECTION 2.02. Making the Advances.
(a) Each Borrowing shall be made on notice, given (i) in the
case of a Borrowing comprising Eurodollar Rate Advances, not
later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Borrowing, and (ii) in the
case of a Borrowing comprising Base Rate Advances, not later than
11:00 A.M. (New York City time) on the date of the proposed
Borrowing, by the Borrower to the Administrative Agent, which
shall give to each Lender prompt notice thereof. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be
transmitted by telecopier, telex or cable, confirmed immediately
in writing, in substantially the form of Exhibit A-1 hereto,
specifying therein the requested (A) date of such Borrowing,
(B) Type of Advances to be made in connection with such
Borrowing, (C) aggregate amount of such Borrowing, and (D) in the
case of a Borrowing comprising Eurodollar Rate Advances, initial
Interest Period for each such Advance. Each Lender shall, before
(x) 12:00 noon (New York City time) on the date of any Borrowing
comprising Eurodollar Rate Advances, and (y) 1:00 P.M. (New York
City time) on the date of any Borrowing comprising Base Rate
Advances, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address
referred to in Section 8.02, in same day funds, such Lender's
ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
(b) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Notice of Borrowing requesting
Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including,
without limitation, any loss, cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result
of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's
ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance
with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender and
the Borrower (following the Administrative Agent's demand on such
Lender for the corresponding amount) severally agree to repay to
the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to
Advances made in connection with such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date
of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by
such other Lender on the date of any Borrowing.
SECTION 2.03. Letters of Credit.
(a) Subject to the terms and conditions hereof, each LC Issuing
Bank agrees to issue Letters of Credit from time to time for the
account of the Borrower (or the stated maturity thereof extended
or terms thereof modified or amended) on not less than two
Business Days' prior notice thereof by delivery of a Request for
Issuance to the Administrative Agent (which shall promptly
distribute copies thereof to the Lenders) and the applicable LC
Issuing Bank. Each Request for Issuance shall specify (i) the
date (which shall be a Business Day) of issuance of such Letter
of Credit (or the date of effectiveness of such extension,
modification or amendment) and the stated expiry date thereof
(which shall be no later than five Business Days prior to the
then-scheduled Termination Date), (ii) the proposed stated amount
of such Letter of Credit (which shall not be less than $100,000),
(iii) the name and address of the beneficiary of such Letter of
Credit and (iv) a statement of drawing conditions applicable to
such Letter of Credit, and if such Request for Issuance relates
to an amendment or modification of a Letter of Credit, it shall
be accompanied by the consent of the beneficiary of the Letter of
Credit thereto. Each Request for Issuance shall be irrevocable
unless modified or rescinded by the Borrower not less than one
day prior to the proposed date of issuance (or effectiveness)
specified therein. Not later than 12:00 noon on the proposed
date of issuance (or effectiveness) specified in such Request for
Issuance, and upon fulfillment of the applicable conditions
precedent and the other requirements set forth herein, the
applicable LC Issuing Bank shall issue (or extend, amend or
modify) such Letter of Credit and provide notice and a copy
thereof to the Administrative Agent, which shall promptly furnish
copies thereof to the Lenders.
(b) No Letter of Credit shall be requested or issued hereunder
if, after the issuance thereof, the Outstanding Credits would
exceed the total Commitments scheduled to be in effect until the
Termination Date. The Borrower will not request, and no LC
Issuing Bank will issue a Letter of Credit, if after the issuance
thereof, the LC Outstandings of such LC Issuing Bank would exceed
$2,000,000,000.
(c) The Borrower hereby agrees to pay to the Administrative
Agent for the account of the applicable LC Issuing Bank and, if
they shall have purchased participations in the reimbursement
obligations of the Borrower pursuant to subsection (d) below, the
Lenders, on demand made by the applicable LC Issuing Bank to the
Borrower, on and after each date on which the applicable LC
Issuing Bank shall pay any amount under any Letter of Credit
issued by such LC Issuing Bank, a sum equal to the amount so paid
(the "Reimbursement Amount") plus interest on the Reimbursement
Amount from the date so paid by such LC Issuing Bank until
repayment to such LC Issuing Bank in full at a fluctuating
interest rate per annum equal to the interest rate applicable to
Base Rate Advances plus, if any amount paid by such LC Issuing
Bank under a Letter of Credit is not reimbursed by the Borrower
within three Business Days, 2%. The Borrower may satisfy its
obligation hereunder to repay the Reimbursement Amount by
requesting a Borrowing under Section 2.02 in the amount of such
Reimbursement Amount, and the proceeds of such Borrowing may be
applied to satisfy the Borrower's obligations to the applicable
LC Issuing Bank or the Lenders, as the case may be.
(d) If any LC Issuing Bank shall not have been reimbursed in
full for any payment made by such LC Issuing Bank under a Letter
of Credit issued by such LC Issuing Bank on the date of such
payment, such LC Issuing Bank shall give the Administrative Agent
and each Lender prompt notice thereof (an "LC Payment Notice") no
later than 12:00 noon on the Business Day immediately succeeding
the date of such payment by such LC Issuing Bank. Each Lender
severally agrees to purchase a participation in the reimbursement
obligation of the Borrower to each LC Issuing Bank by paying to
the Administrative Agent for the account of the applicable LC
Issuing Bank an amount equal to such Lender's Percentage of such
unreimbursed amount paid by such LC Issuing Bank, plus interest
on such amount at a rate per annum equal to the Federal Funds
Rate from the date of the payment by the applicable LC Issuing
Bank to the date of payment to such LC Issuing Bank by such
Lender. Each such payment by a Lender shall be made not later
than 3:00 P.M. on the later to occur of (i) the Business Day
immediately following the date of such payment by the applicable
LC Issuing Bank and (ii) the Business Day on which such Lender
shall have received an LC Payment Notice from the applicable LC
Issuing Bank. Each Lender's obligation to make each such payment
to the Administrative Agent for the account of any LC Issuing
Bank shall be several and shall not be affected by the occurrence
or continuance of an Event of Default or the failure of any other
Lender to make any payment under this Section 2.03(d). Each
Lender further agrees that each such payment shall be made
without any offset, abatement, withholding or reduction
whatsoever.
(e) The failure of any Lender to make any payment to the
Administrative Agent for the account of any LC Issuing Bank in
accordance with subsection (d) above shall not relieve any other
Lender of its obligation to make payment, but no Lender shall be
responsible for the failure of any other Lender. If any Lender
(a "Non-Performing Lender") shall fail to make any payment to the
Administrative Agent for the account of any LC Issuing Bank in
accordance with subsection (d) above within five Business Days
after the LC Payment Notice relating thereto, then, for so long
as such failure shall continue, the applicable LC Issuing Bank
shall be deemed, for purposes of Section 8.01 and Article VI
hereof, to be a Lender owed a Borrowing in an amount equal to the
outstanding principal amount due and payable by such
Non-Performing Lender to the Administrative Agent for the account
of such LC Issuing Bank pursuant to subsection (d) above. Any
Non-Performing Lender and the Borrower (without waiving any claim
against such Lender for such Lender's failure to purchase a
participation in the reimbursement obligations of the Borrower
under subsection (d) above) severally agree to pay to the
Administrative Agent for the account of the applicable LC Issuing
Bank forthwith on demand such amount, together with interest
thereon for each day from the date such Lender would have
purchased its participation had it complied with the requirements
of subsection (d) above until the date such amount is paid to the
Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to Base Rate Advances and
(ii) in the case of such Lender, the Federal Funds Rate.
(f) The payment obligations of each Lender under Section 2.03(d)
and of the Borrower under this Agreement in respect of any
payment under any Letter of Credit by any LC Issuing Bank shall
be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of this Agreement,
any other Loan Document or any other agreement or instrument
relating thereto or to such Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure
from, the terms of this Agreement or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against any
beneficiary, or any transferee, of such Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee may
be acting), the applicable LC Issuing Bank, or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby, thereby or by such Letter of Credit, or any
unrelated transaction;
(iv) any statement or any other document presented under such
Letter of Credit reasonably proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(v) payment in good faith by the applicable LC Issuing Bank
under the Letter of Credit issued by such LC Issuing Bank against
presentation of a draft or certificate that does not comply with
the terms of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
(g) The Borrower assumes all risks of the acts and omissions of
any beneficiary or transferee of any Letter of Credit. Neither
the LC Issuing Banks, the Lenders nor any of their respective
officers, directors, employees, agents or Affiliates shall be
liable or responsible for (i) the use that may be made of such
Letter of Credit or any acts or omissions of any beneficiary or
transferee thereof in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii)
payment by any LC Issuing Bank against presentation of documents
that do not comply with the terms of such Letter of Credit,
including failure of any documents to bear any reference or
adequate reference to such Letter of Credit; or (iv) any other
circumstances whatsoever in making or failing to make payment
under such Letter of Credit. Notwithstanding any provision to
the contrary contained in this Agreement, the Borrower and each
Lender shall have the right to bring suit against any LC Issuing
Bank, and such LC Issuing Bank shall be liable to the Borrower
and any Lender, to the extent of any direct, as opposed to
consequential, damages suffered by the Borrower or such Lender
which the Borrower or such Lender proves were caused by such LC
Issuing Bank's willful misconduct or gross negligence, including,
in the case of the Borrower, such LC Issuing Bank's willful
failure to make timely payment under such Letter of Credit
following the presentation to it by the beneficiary thereof of a
draft and accompanying certificate(s) that strictly comply with
the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, each LC
Issuing Bank may accept sight drafts and accompanying
certificates presented under the Letter of Credit issued by such
LC Issuing Bank that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary, and payment against such
documents shall not constitute willful misconduct or gross
negligence by such LC Issuing Bank. Notwithstanding the
foregoing, no Lender shall be obligated to indemnify the Borrower
for damages caused by any LC Issuing Bank's willful misconduct or
gross negligence.
(h) The letters of credit listed in Schedule 2.03(h) shall be
deemed "Letters of Credit" upon fulfillment of the conditions
listed in Section 3.01.
SECTION 2.04. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee on the average daily
amount of such Lender's Commitment from the date hereof in the
case of each Bank, and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender,
in the case of each other Lender, until the earlier to occur of
the Termination Date with respect to the Commitment of such
Lender and, in the case of the termination in whole of a Lender's
Commitment pursuant to Section 2.05, the date of such
termination, payable on the last day of each March, June,
September and December during such period, and on the Termination
Date with respect to the Commitment of such Lender at the rate
per annum set forth below in the columns identified as ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4 and Level 5, determined by reference to
the Relevant Ratings:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 Level 6
__________________________________________________________________
Relevant Relevant Relevant Relevant Relevant Relevant
Ratings Ratings Ratings Ratings Ratings Ratings
at least Less Less Less Less below
S&P A+ or A1 than than than than BBB* and
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇*
▇▇▇▇▇'▇ but at but at but at but at
least A least A- least least
or A2 or A3 BBB+ or BBB or
Baa1 Baa2
__________________________________________________________________
Rate Per
Annum
__________________________________________________________________
Facility
Fee 0.900% 0.100% 0.125% 0.150% 0.175% 0.200%
*or unrated
Any change in the facility fee will be effective as of the date
on which S&P or ▇▇▇▇▇'▇, as the case may be, announces the
applicable change in any Senior Debt Rating.
(b) The Borrower shall pay to the Administrative Agent for the
account of each Lender a fee (the "LC Fee") on the average daily
amount of the sum of the undrawn stated amounts of all Letters of
Credit outstanding on each such day, from the date hereof in the
case of each Bank, and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender,
in the case of each other Lender, until the later to occur of the
Termination Date with respect to the Commitment of such Lender
and the date on which no Letters of Credit are outstanding,
payable on the last day of each March, June, September and
December during such period and such later date, at a rate equal
at all times to the Applicable Margin in effect from time to time
for Eurodollar Rate Advances. In addition, the Borrower shall
pay to the LC Issuing Banks such fees for the issuance and
maintenance of Letters of Credit and for drawings thereunder as
may be separately agreed between the Borrower and the LC Issuing
Banks.
SECTION 2.05. Adjustment of the Commitments.
(a) The Borrower shall have the right, upon at least three
Business Days' notice to the Administrative Agent, to terminate
in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders; provided that each partial
reduction shall be in the aggregate amount of $1,000,000 or an
integral multiple thereof. Once terminated, a Commitment may not
be reinstated.
(b) (i) On any date on or prior to the Termination Date, the
Borrower may increase the aggregate amount of the Commitments by
an amount not less than $5,000,000 and to an amount not to exceed
$2,500,000,000 (any such increase, a "Commitment Increase") by
designating either one or more of the existing Lenders or one or
more Affiliates thereof (each of which, in its sole discretion,
may determine whether and to what degree to participate in such
Commitment Increase) or one or more other Eligible Assignees
reasonably acceptable to the Administrative Agent that at the
time agree, in the case of any such Eligible Assignee that is an
existing Lender, to increase its Commitment (an "Increasing
Lender") and, in the case of any other Eligible Assignee or an
Affiliate of a Lender (an "Additional Lender"), to become a party
to this Agreement. The sum of the increases in the Commitments
of the Increasing Lenders pursuant to this subsection (c) plus
the Commitments of the Additional Lenders upon giving effect to
the Commitment Increase shall not in the aggregate exceed the
amount of the Commitment Increase. The Borrower shall provide
prompt notice of any proposed Commitment Increase pursuant to
this Section 2.05(b) to the Administrative Agent, which shall
promptly provide a copy of such notice to the Lenders.
(ii) Any Commitment Increase shall become effective upon (A) the
receipt by the Administrative Agent of an agreement in form and
substance satisfactory to the Administrative Agent signed by the
Borrower, each Increasing Lender and each Additional Lender,
setting forth the new Commitments of each such Lender and setting
forth the agreement of each Additional Lender to become a party
to this Agreement and to be bound by all the terms and provisions
hereof binding upon each Lender, (B) the funding by each Lender
of the Advance(s) to be made by each such Lender described in
paragraph (iii) below and (C) receipt by the Administrative Agent
of a certificate (the statements contained in which shall be
true) of a duly authorized officer of the Borrower stating that
both before and after giving effect to such Commitment Increase
(1) no Event of Default and no Prepayment Event has occurred and
is continuing and (2) all representations and warranties made by
such Borrower in this Agreement are true and correct in all
material respects.
(iii) Upon the effective date of any Commitment Increase, the
Borrower shall prepay the outstanding Borrowings (if any) in
full, and shall simultaneously make new Borrowings hereunder in
an amount equal to such prepayment, so that, after giving effect
thereto, the Borrowings are held ratably by the Lenders in
accordance with their respective Commitments (after giving effect
to such Commitment Increase). Prepayments made under this
paragraph (iii) shall not be subject to the notice requirements
of Section 2.11.
(iv) Notwithstanding any provision contained herein to the
contrary, from and after the date of any Commitment Increase and
the making of any Advances on such date pursuant to paragraph
(iii) above, all calculations and payments of the facility fee
and of interest on the Advances shall take into account the
actual Commitment of each Lender and the principal amount
outstanding of each Advance made by such Lender during the
relevant period of time.
SECTION 2.06. Repayment of Advances.
The Borrower shall repay the principal amount of each
Advance made by each Lender and as Converted from time to time on
the earlier to occur of (i) 364 days after the date of the
Borrowing comprising such Advance and (ii) the Termination Date
with respect to the Commitment of such Lender.
SECTION 2.07. Interest on Advances.
The Borrower shall pay interest on the unpaid principal
amount of each Advance made by each Lender from the date of such
Advance until such principal amount shall be paid in full, at the
following rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate Advance,
a rate per annum equal at all times to the Base Rate in effect
from time to time plus the Applicable Margin for such Base Rate
Advance in effect from time to time, payable quarterly on the
last day of each March, June, September and December and on the
date such Base Rate Advance shall be Converted or paid in full.
(b) Eurodollar Rate Advances. Subject to Section 2.08, if such
Advance is a Eurodollar Rate Advance, a rate per annum equal at
all times during the Interest Period for such Advance to the sum
of the Eurodollar Rate for such Interest Period plus the
Applicable Margin for such Eurodollar Rate Advance in effect from
time to time, payable on the last day of each Interest Period for
such Eurodollar Rate Advance and on the date such Eurodollar Rate
Advance shall be Converted or paid in full and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the
first day of such Interest Period.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender, so long as such
Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender,
from the date of such Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through
the Administrative Agent, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.09. Interest Rate Determination.
(a) Each Reference Bank agrees to furnish to the Administrative
Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall
not furnish such timely information to the Administrative Agent
for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference
Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of
Section 2.07(a) and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable
interest rate under Section 2.07(b).
(c) If fewer than two Reference Banks furnish timely information
to the Administrative Agent for determining the Eurodollar Rate
for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Advances into Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.10. Conversion of Advances.
(a) Voluntary. The Borrower may, upon notice given to the
Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and
2.13, on any Business Day, Convert all Advances of one Type made
in connection with the same Borrowing into Advances of another
Type; provided, however, that any Conversion of, or with respect
to, any Eurodollar Rate Advances into Advances of another Type
shall be made on, and only on, the last day of an Interest Period
for such Eurodollar Rate Advances, unless the Borrower shall also
reimburse the Lenders in respect thereof pursuant to
Section 8.04(b) on the date of such Conversion. Each such notice
of a Conversion (a "Notice of Conversion") shall be by
telecopier, telex or cable, confirmed immediately in writing, in
substantially the form of Exhibit A-2 hereto, specifying therein
(i) the date of such Conversion, (ii) the Advances to be
Converted, and (iii) if such Conversion is into, or with respect
to, Eurodollar Rate Advances, the duration of the Interest Period
for each such Advance.
(b) Mandatory. If a Borrower shall fail to select the Type of
any Advance or the duration of any Interest Period for any
Borrowing comprising Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period"
in Section 1.01 and Section 2.10(a), or if any proposed
Conversion of a Borrowing that is to comprise Eurodollar Rate
Advances upon Conversion shall not occur as a result of the
circumstances described in paragraph (c) below, the
Administrative Agent will forthwith so notify the Borrower and
the Lenders, and such Advances will automatically, on the last
day of the then existing Interest Period therefor, Convert into
Base Rate Advances.
(c) Failure to Convert. Each notice of Conversion given
pursuant to subsection (a) above shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that is to
comprise Eurodollar Rate Advances upon Conversion, the Borrower
agrees to indemnify each Lender against any loss, cost or expense
incurred by such Lender if, as a result of the failure of the
Borrower to satisfy any condition to such Conversion (including,
without limitation, the occurrence of any Prepayment Event or
Event of Default, or any event that would constitute an Event of
Default or a Prepayment Event with notice or lapse of time or
both), such Conversion does not occur. The Borrower's
obligations under this subsection (c) shall survive the repayment
of all other amounts owing to the Lenders and the Administrative
Agent under this Agreement and the termination of the
Commitments.
SECTION 2.11. Prepayments.
The Borrower may, upon notice received by the Administrative
Agent prior to 11:00 A.M. (New York City time) on any Business
Day, with respect to Base Rate Advances, and upon at least two
Business Days' notice to the Administrative Agent, with respect
to Eurodollar Rate Advances, stating the proposed date and
aggregate principal amount of the prepayment, and if such notice
is given the Borrower shall, prepay the outstanding principal
amounts of the Advances made as part of the same Borrowing in
whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid;
provided, however, that (i) each partial prepayment shall be in
an aggregate principal amount not less than $1,000,000 or any
integral multiple of $100,000 in excess thereof and (ii) in the
case of any such prepayment of an Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(b) on the date of such
prepayment.
SECTION 2.12. Increased Costs.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of
reserve requirements in the case of Eurodollar Rate Advances,
included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance
with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative
Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender or LC Issuing Bank determines that compliance
with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or
LC Issuing Bank or any corporation controlling such Lender or LC
Issuing Bank and that the amount of such capital is increased by
or based upon the existence of such Lender's or LC Issuing Bank's
commitment to lend hereunder and other commitments of this type
(including such Lender's or LC Issuing Bank's commitment to lend
hereunder) or the Advances, then, upon demand by such Lender or
LC Issuing Bank (with a copy of such demand to the Administrative
Agent), the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender or LC Issuing Bank, from
time to time as specified by such Lender or LC Issuing Bank,
additional amounts sufficient to compensate such Lender or LC
Issuing Bank or such corporation in the light of such
circumstances, to the extent that such Lender or LC Issuing Bank
reasonably determines such increase in capital to be allocable to
the existence of such Lender's or LC Issuing Bank's commitment to
lend hereunder or the Advances made by such Lender or LC Issuing
Bank. A certificate in reasonable detail as to such amounts
submitted to the Borrower and the Administrative Agent by such
Lender or LC Issuing Bank shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.13. Illegality.
Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Administrative Agent that the
introduction of, any change in or any change in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith
prepay in full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless the
Borrower, within five Business Days of notice from the
Administrative Agent, Converts all Eurodollar Rate Advances of
all Lenders then outstanding into Advances of another Type in
accordance with Section 2.10.
SECTION 2.14. Payments and Computations.
(a) The Borrower shall make each payment hereunder not later
than 12:00 noon (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at its address referred to in
Section 8.02 in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating
to the payment of principal or interest or facility fees ratably
(other than amounts payable pursuant to Section 2.02(c), 2.04,
2.08, 2.12, 2.15 or 8.04(b)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender
or LC Issuing Bank to such Lender for the account of its
Applicable Lending Office or to any LC Issuing Bank, in each case
to be applied in accordance with the terms of this Agreement.
Upon its acceptance of an Assignment and Acceptance and recording
of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in
such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due
hereunder, to charge from time to time to the extent permitted by
law against any or all of the Borrower's accounts with such
Lender any amount so due.
(c) All computations of interest based on clause (i) of the
definition of "Base Rate" shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar
Rate, the LC Fee, the Federal Funds Rate or clause (ii) of the
definition of "Base Rate" and of facility fees shall be made by
the Administrative Agent, and all computations of interest
pursuant to Section 2.08 shall be made by a Lender, on the basis
of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent (or, in the case
of Section 2.08, by a Lender) of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder shall be stated to be due on
a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of
interest or facility fee, as the case may be; provided, however,
if such extension would cause payment of interest on or principal
of Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so made
such payment in full to the Administrative Agent, each Lender
shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained herein,
any Advance or other amount payable by the Borrower hereunder
that is not paid when due (whether at stated maturity, by
acceleration or otherwise), and all Advances at any time an Event
of Default shall have occurred and be continuing, shall (to the
fullest extent permitted by law) bear interest from the date when
due until paid in full at a rate per annum equal at all times, in
the case of each Advance, to the applicable interest rate in
effect from time to time for such Advance plus 2% per annum, and,
in the case of other amounts, to the Base Rate plus the
Applicable Margin for Base Rate Advances plus 2% per annum,
payable in each case upon demand.
SECTION 2.15. Taxes.
(a) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.14, free and clear of and
without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Lender, such LC Issuing Bank and the Administrative Agent, net
income taxes and franchise taxes imposed in lieu of net income
taxes on it by the jurisdiction under the laws of which such
Lender, such LC Issuing Bank or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof
and, in the case of each Lender, net income taxes and franchise
taxes imposed on it in lieu of net income taxes by the
jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender, any LC
Issuing Bank or the Administrative Agent, (i) the sum payable
shall be increased (unless and to the extent that (x) the
Borrower is required to deduct such Taxes because any Lender
fails to comply with subsection (d) below or (y) such Taxes are
imposed on amounts payable to such Lender at the time such Lender
becomes a party to this Agreement, except to the extent such
Lender's assignor, if any, was entitled at the time of
assignment, to receive additional amounts from the Borrower
pursuant to this Section 2.15(a)) as may be necessary so that
after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15)
such Lender, such LC Issuing Bank or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. Whenever any Taxes
are payable by the Borrower, as promptly as possible thereafter,
the Borrower shall send to the Administrative Agent a certified
copy of the original receipt received by the Borrower showing
payment thereof.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender, each LC Issuing
Bank and the Administrative Agent for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Lender, such LC Issuing Bank or the
Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall
be made within 30 days from the date such Lender, such LC Issuing
Bank or the Administrative Agent (as the case may be) makes
written demand therefor. Nothing herein shall preclude the right
of the Borrower to contest any such Taxes or Other Taxes so paid,
and the Lenders or LC Issuing Banks in question or the
Administrative Agent (as the case may be) will, following notice
from, and at the expense of, the Borrower, take such actions as
the Borrower may reasonably request to preserve the Borrower's
rights to contest such Taxes or Other Taxes, and, within 60 days
following receipt of any refund of amounts with respect to Taxes
or Other Taxes for which such Lenders, such LC Issuing Banks or
the Administrative Agent were previously indemnified under this
Section 2.15, pay to the Borrower such refunded amounts
(including any interest paid by the relevant taxing authority
with respect to such amounts) to the extent of the indemnity
payments made by the Borrower; provided, however, that the
Borrower agrees to repay the amount paid over to the Borrower if
such Lender, such LC Issuing Bank or the Administrative Agent is
required to repay such refund.
(d) Prior to the date of the initial Borrowing in the case of
each Bank, prior to the date of the initial issuance of any
Letter of Credit, and on the date of the Assignment and
Acceptance pursuant to which it became a Lender in the case of
each other Lender, and from time to time thereafter if reasonably
requested by the Borrower, an LC Issuing Bank or the
Administrative Agent in writing, each Lender and each LC Issuing
Bank organized under the laws of a jurisdiction outside the
United States shall provide the Administrative Agent and the
Borrower with the forms prescribed by the Internal Revenue
Service of the United States certifying that such Lender or such
LC Issuing Bank is exempt from or eligible for a reduced rate of
United States federal withholding taxes with respect to all
payments to be made to such Lender hereunder or such LC Issuing
Bank. Each LC Issuing Bank and each Lender shall deliver forms
pursuant to this Section 2.15(d) showing eligibility for a
reduced rate of United States federal withholding tax, rather
than a complete exemption therefrom, only as a result of a change
in treaty, law or regulation that occurs after the date such
Lender or such LC Issuing Bank becomes a party to this Agreement;
provided, however, that a Lender whose assignor, if any, was
entitled at the time of assignment to a reduced rate of United
States federal withholding tax, rather than a complete exemption
therefrom, as a result of a change in treaty, law or regulation
that occurred after the date such assignor became a party to this
Agreement shall be entitled to deliver a form showing eligibility
for a reduced rate of United States federal withholding tax to
the extent that such assignor was so entitled. If for any reason
during the term of this Agreement, any Lender or any LC Issuing
Bank becomes unable to submit the forms referred to above or the
information or representations contained therein are no longer
accurate in any material respect, such Lender or such LC Issuing
Bank shall notify the Administrative Agent and the Borrower in
writing to that effect. Unless the Borrower and the
Administrative Agent have received forms or other documents
satisfactory to them indicating that payments hereunder are not
subject to United States federal withholding tax, the Borrower
or, if the Borrower fails to do so, the Administrative Agent,
shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Lender or
any LC Issuing Bank organized under the laws of a jurisdiction
outside the United States. Notwithstanding any other provision
of this paragraph, a Lender or an LC Issuing Bank organized under
the laws of a jurisdiction outside of the United States shall not
be required to deliver any form that such Lender or such LC
Issuing Bank is not legally able to deliver.
(e) Any Lender claiming any additional amounts payable pursuant
to this Section 2.15 shall use its reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Applicable Lending Office,
change its Applicable Lending Office to another office of the
Lender or take other actions customary or otherwise reasonable
under the circumstances if the making of such a change or the
taking of such actions would avoid the need for, or reduce the
amount of, any such additional amounts which may thereafter
accrue and would not, in the sole judgment of such Lender, cause
such Lender to suffer economic, legal or regulator disadvantage.
Nothing in this subsection 2.15(e) shall postpone any of the
obligations of the Borrower pursuant to Section 2.15.
(f) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.15 shall survive the payment
in full of principal and interest hereunder.
SECTION 2.16. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Advances made by it (other than
pursuant to Section 2.02(c), 2.08, 2.12, 2.15 or 8.04(b)) or, on
account of the Borrower's reimbursement obligations in respect of
LC Outstandings in excess of its ratable share of payments on
account of the Advances or on account of such reimbursement
obligations obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the Advances made by them and such reimbursement obligations as
shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them, provided, however, that
if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Advance made by
such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time
hereunder.
(b) The Administrative Agent shall also maintain accounts in
which it will record (i) the amount of each Advance made
hereunder, the Type thereof and the Interest Period (if any) with
respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to
each Lender hereunder, and (iii) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant
to subsections (a) and (b) above shall be prima facie evidence of
the existence and amounts of the obligations therein recorded;
provided, however, that the failure of the Administrative Agent
or any Lender to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to
repay such obligations in accordance with their terms.
(d) Any Lender may request that its Advances be evidenced by one
or more promissory notes. In such event, the Borrower shall
prepare, execute and deliver to such Lender one or more
promissory notes payable to the order of such Lender and in a
form acceptable to the Borrower and the Administrative Agent.
Thereafter, the Advances evidenced by such note(s) and interest
thereon shall at all times (including after any assignment
pursuant to Section 8.07) be represented by notes from the
Borrower, payable to the order of the payee named therein or any
assignee pursuant to Section 8.07, except to the extent that any
such Lender or assignee subsequently returns any such notes for
cancellation and requests that such Borrowings once again be
evidenced as in subsections (a) and (b) above.
SECTION 2.18. Extension of Termination Date.
(a) So long as no Event of Default and no Prepayment Event has
occurred and is continuing, the Borrower may, at least 30 but not
more than 60 days prior to each anniversary of the date hereof
(the "Extension Notice Date"), by delivering a written request to
the Administrative Agent (such request being irrevocable),
request that each Lender extend for one year the Termination Date
with respect to such Lender's Commitment. The Administrative
Agent shall, upon its receipt of such request, promptly notify
each Lender thereof, and request that each Lender promptly advise
the Administrative Agent of its approval or rejection of such
request. The Borrower may exercise its right to request an
extension of the Termination Date under this Section 2.18 once
per year no more than five times.
(b) Upon receipt of such notification from the Administrative
Agent, each Lender may (but shall not be required to), in its
sole and absolute discretion, agree to extend the Termination
Date with respect to its Commitment and any of its outstanding
Advances for a period of one year, and shall (should it determine
to do so), no earlier than 30 days (but in any event no later
than 20 days prior to the then-scheduled Termination Date)
following its receipt of such notification, notify the
Administrative Agent in writing of its consent to such request.
If any Lender shall not so notify the Administrative Agent, such
Lender shall be deemed not to have consented to such request.
The Administrative Agent shall thereupon notify the Borrower no
later than 15 days prior to the then-scheduled Termination Date
as to the Lenders, if any, that have consented to such request.
(c) If Lenders holding Commitments aggregating more than 50% of
the Commitments then in effect agree to such request, the
Commitment of each Lender that consents to such request shall be
extended for a period of one year, commencing on the then-
scheduled Termination Date; subject, however, to the condition
precedent that, on or prior to the date of such extension, the
Administrative Agent shall have received the following, each
dated such date and in form and substance satisfactory to the
Administrative Agent: (i) a certificate of a duly authorized
officer of the Borrower to the effect that as of the date of
extension of the Termination Date (A) no event has occurred and
is continuing, or would result from the extension of the
Termination Date, that constitutes an Event of Default or would,
with the giving of notice or the lapse of time, or both,
constitute an Event of Default and (B) the representations and
warranties contained in Section 4.01 are correct in all material
respects on and as of the date of extension of the Termination
Date, before and after giving effect to such extension, as though
made on and as of such date, (ii) certified copies of the
resolutions of the Board of Directors of the Borrower authorizing
such extension and the performance of this Agreement on and after
the date of extension of the Termination Date, and of all
documents evidencing other necessary corporate action and
governmental and regulatory approvals with respect to this
Agreement and such extension of the Termination Date and (iii) an
opinion of the counsel of the Borrower, as to such matters
related to the foregoing as the Administrative Agent or the
Lenders through the Administrative Agent may reasonably request.
Subject to subsection (d) below, the Commitment of any Lender
electing not to extend (or failing to notify the Administrative
Agent in writing of its consent to extend) the Termination Date
shall automatically terminate on the then-scheduled Termination
Date (without regard to any extension by any other Lender).
(d) In the event that any Lender (a "Nonconsenting Lender")
shall not consent (or shall be deemed not to have consented) to
an extension request of the Borrower made pursuant to subsection
(a) above, the Borrower will have the right to substitute other
financial institutions reasonably acceptable to the
Administrative Agent and the LC Issuing Banks for any
Nonconsenting Lender (provided that the other Lenders shall have
the right to increase their Commitments ratably according to the
amount of their Commitments relative to the other Commitments
that are to be extended up to the amount of the Commitment of
such Nonconsenting Lender before the Borrower shall be permitted
to substitute any other financial institution for such
Nonconsenting Lender) by causing any Nonconsenting Lender to
assign its Commitment pursuant to Section 8.07 hereof, provided,
however, that the parties to any such assignment shall not be
required to pay the processing and recordation fee otherwise
payable under Section 8.07(a)(iv), and provided, further that
such Nonconsenting Lender shall, prior to the effectiveness of
any such assignment, be paid in full all amounts due to it
hereunder.
(e) Upon the extension of the Termination Date in accordance
with this Section 2.18, the Administrative Agent shall deliver to
each Lender a revised Schedule II setting forth the Commitment of
each Lender after giving effect to such extension, and such
Schedule II shall replace the Schedule II in effect before the
extension of the then applicable Termination Date.
(f) In the event that any Lender shall not have consented to a
request made by the Borrower under this Section 2.18 to extend
the Termination Date, then, on the date of any termination or
reduction of the Commitment pursuant to this Section 2.18, the
Borrower shall pay or prepay to such Lender the aggregate
outstanding principal amount of all Advances of such Lender with
respect to such termination or reduction of its Commitment,
together with accrued interest to the date of such prepayment on
the principal amount prepaid and all other fees and other amounts
due and payable to such Lender hereunder. In the case of any
such prepayment of a Eurodollar Rate Advance, the Borrower shall
be obligated to reimburse each such Lender in respect thereof
pursuant to Section 8.04(b).
ARTICLE III
CONDITIONS OF EXTENSIONS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extensions of
Credit.
The obligation of each Lender to make its initial Advance
and of each LC Issuing Bank to issue the initial Letter of Credit
is subject to the conditions precedent that on or before the date
of such Advance:
(a) The Administrative Agent shall have received the following,
each dated the same date (except for the financial statements
referred to in paragraph (iv) below), in form and substance
satisfactory to the Administrative Agent and (except for the
notes described in paragraph (i)) with one copy for each Lender
and each LC Issuing Bank:
(i) A promissory note payable to the order of each Lender that
requests one pursuant to Section 2.17;
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement, and of all
documents evidencing other necessary corporate action with
respect to this Agreement;
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (A) the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the other documents to be delivered hereunder;
(B) that attached thereto are true and correct copies of the
Certificate of Incorporation and the By Laws of the Borrower, in
each case in effect on such date; and (C) that attached thereto
are true and correct copies of all governmental and regulatory
authorizations and approvals required for the due execution,
delivery and performance of this Agreement, including, without
limitation, a copy of the order dated June 30, 2004 (File No. 70-
10202) of the SEC under the Public Utility Holding Company Act of
1935 authorizing the Borrower to obtain Extensions of Credit
through June 30, 2007 and to execute, deliver and perform this
Agreement (the "SEC Order");
(iv) Copies of the consolidated balance sheets of the Borrower
and its subsidiaries as of December 31, 2004, and the related
consolidated statements of income, retained earnings and cash
flows of the Borrower and its subsidiaries for the fiscal year
then ended, and copies of the consolidated financial statements
of the Borrower and its subsidiaries as of March 31, 2005, in
each case certified by a duly authorized officer of the Borrower
as having been prepared in accordance with generally accepted
accounting principles consistently applied;
(v) A favorable opinion of counsel for the Borrower, acceptable
to the Administrative Agent, substantially in the form of
Exhibit C hereto and as to such other matters as any Lender
through the Administrative Agent may reasonably request; and
(vi) A favorable opinion of King & Spalding LLP, special New York
counsel for the Administrative Agent, substantially in the form
of Exhibit D hereto.
(b) The Administrative Agent shall have received the fees
payable pursuant to the Fee Letter.
(c) The commitments of the lenders under the Existing Credit
Agreements shall have been terminated, and the obligations of the
Borrower under the Existing Credit Agreements to such lenders
shall have been paid in full.
SECTION 3.02. Conditions Precedent to Each Extension of Credit.
The obligation of each Lender to make an Advance on the
occasion of each Borrowing (including the initial Borrowing) and
of each LC Issuing Bank to issue any Letter of Credit shall be
subject to the further conditions precedent that on the date of
such Borrowing:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing, Request for
Issuance or Notice of Conversion and the acceptance by the
Borrower of any proceeds of a Borrowing or the issuance of such
Letter of Credit shall constitute a representation and warranty
by the Borrower that on the date of such Extension of Credit or
Conversion, as applicable, such statements are true):
(i) The representations and warranties contained in Section 4.01
(excluding those contained in subsections (e) and (f) thereof
with respect to each Extension of Credit requested after the
initial Extension of Credit) are correct on and as of the date of
such Extension of Credit, before and after giving effect to such
Extension of Credit and to the application of the proceeds
therefrom, as though made on and as of such date; and
(ii) No event has occurred and is continuing, or would result
from such Extension of Credit or from the application of the
proceeds therefrom or the issuance or amendment of any Letter of
Credit in connection therewith, that constitutes a Prepayment
Event or an Event of Default or would constitute a Prepayment
Event or an Event of Default with notice or lapse of time or
both.
(b) The Administrative Agent shall have received such other
approvals, opinions or documents with respect to the truth of the
foregoing statements (i) and (ii) as any Lender through the
Administrative Agent may reasonably request.
(c) Each Letter of Credit shall be in form and substance
acceptable to the LC Issuing Bank issuing such Letter of Credit.
SECTION 3.03. Conditions Precedent to Extensions of Credit After
June 30, 2007.
At any time after June 30, 2007, the obligation of each
Lender to make an Advance as part of any Borrowing (including the
initial Borrowing) that would increase the aggregate principal
amount of Advances outstanding hereunder, and the obligation of
each LC Issuing Bank to issue, amend, extend or renew a Letter of
Credit (including the initial Letter of Credit), shall be subject
to the further conditions precedent that on or prior to the date
of such Extension of Credit the Administrative Agent shall have
received the following, each dated the same date, in form and
substance satisfactory to the Administrative Agent and with one
copy for each LC Issuing Bank and each Lender:
(i) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying that attached thereto is a true and
correct copy of the New SEC Order and the Declaration on Form U-1
and amendments and exhibits thereto in the SEC file or files
related thereto and that such order and declaration have been
issued or filed and are in full force and effect; and
(ii) An opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special counsel
for the Borrower, to the effect that no Governmental Action is
or will be required in connection with the performance by the
Borrower, or the consummation by the Borrower of the transactions
contemplated by this Agreement other than the New SEC Order,
which has been duly issued and is in full force and effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and is duly qualified to do business as a
foreign corporation in each jurisdiction in which the nature of
the business conducted or the property owned, operated or leased
by it requires such qualification, except where failure to so
qualify would not materially adversely affect its condition
(financial or otherwise), operations, business, properties, or
prospects.
(b) The execution, delivery and performance by the Borrower of
this Agreement are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action and do not
contravene (i) the Borrower's charter or by-laws, (ii) law
applicable to the Borrower or its properties, or (iii) any
contractual or legal restriction binding on or affecting the
Borrower or its properties.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body (i) is required for the due execution, delivery
and performance by the Borrower of this Agreement, including
obtaining any Extensions of Credit under this Agreement, except
for the following (each of which has been duly filed or obtained,
and is final and in full force and effect): (A) the filing of the
Declaration on Form U-1 and amendments and exhibits thereto in
File No. 70-10202 and (B) the SEC Order; and (ii) is required
after June 30, 2007 for the performance by the Borrower of this
Agreement, including obtaining any Extensions of Credit under
this Agreement, except for the following: (A) the filing of a
Declaration on Form U-1 and amendments and exhibits thereto, or
the filing of amendments to File No. 70-10202, to request, among
other things, that the term of the SEC Order be extended from at
least June 30, 2007 to May 25, 2010, or such later Termination
Date as extended pursuant to Section 2.18 and (B) the New SEC
Order.
(d) This Agreement is the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with
its terms, subject, however, to any applicable bankruptcy,
reorganization, rearrangement, moratorium or similar laws
affecting generally the enforcement of creditors' rights and
remedies and to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or
at law).
(e) The consolidated financial statements of the Borrower and
its subsidiaries as of December 31, 2004 and for the year ended
on such date, as set forth in the Borrower's Annual Report on
Form 10-K for the fiscal year ended on such date, as filed with
the SEC, accompanied by an opinion of Deloitte & Touche LLP, and
the consolidated financial statements of the Borrower and its
subsidiaries as of March 31, 2005 and for the fiscal period ended
on such date set forth in the Borrower's Quarterly Report on
Form 10-Q for the fiscal quarter ended on such date, as filed
with the SEC, copies of each of which have been furnished to each
Bank, fairly present (subject, in the case of such statements
dated March 31, 2005, to year-end adjustments) the consolidated
financial condition of the Borrower and its subsidiaries as at
such dates and the consolidated results of the operations of the
Borrower and its subsidiaries for the periods ended on such
dates, in accordance with generally accepted accounting
principles consistently applied. Except as disclosed in the
Borrower's Quarterly Report on Form 10-Q for the fiscal period
ended March 31, 2005, since December 31, 2004, there has been no
material adverse change in the financial condition or operations
of the Borrower.
(f) Except as disclosed in the Borrower's Annual Report on
Form 10-K for the fiscal year ended December 31, 2004, and the
Borrower's Quarterly Report on Form 10-Q for the period ended
March 31, 2005, there is no pending or threatened action or
proceeding affecting the Borrower or any of its subsidiaries
before any court, governmental agency or arbitrator that, if
determined adversely, could reasonably be expected to have a
material adverse effect upon the condition (financial or
otherwise), operations, business, properties or prospects of the
Borrower or on its ability to perform its obligations under this
Agreement, or that purports to affect the legality, validity,
binding effect or enforceability of this Agreement. There has
been no change in any matter disclosed in such filings that could
reasonably be expected to result in such a material adverse
effect.
(g) No event has occurred and is continuing that constitutes a
Prepayment Event or an Event of Default or that would constitute
a Prepayment Event or an Event of Default but for the requirement
that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and not more than 25%
of the value of the assets of the Borrower and its subsidiaries
subject to the restrictions of Section 5.02(a), (c) or (d) is, on
the date hereof, represented by margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal
Reserve System).
(i) The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment
advisor" within the meaning of the Investment Company Act of
1940, as amended. The Borrower is a "holding company" as that
term is defined in, and is registered under, the Public Utility
Holding Company Act of 1935.
(j) No ERISA Termination Event has occurred, or is reasonably
expected to occur, with respect to any ERISA Plan that may
materially and adversely affect the condition (financial or
otherwise), operations, business, properties or prospects of the
Borrower and its subsidiaries, taken as a whole.
(k) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) with respect to each ERISA Plan, copies
of which have been filed with the Internal Revenue Service and
furnished to the Banks, is complete and accurate and fairly
presents the funding status of such ERISA Plan, and since the
date of such Schedule B there has been no material adverse change
in such funding status.
(l) The Borrower has not incurred, and does not reasonably
expect to incur, any withdrawal liability under ERISA to any
Multiemployer Plan.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.
So long as any amount payable by the Borrower hereunder
shall remain unpaid or any Lender shall have any Commitment or
any Letter of Credit shall remain outstanding hereunder, the
Borrower will, unless the Majority Lenders shall otherwise
consent in writing:
(a) Keep Books; Corporate Existence; Maintenance of Properties;
Compliance with Laws; Insurance; Taxes; Inspection Rights.
(i) keep proper books of record and account, all in accordance
with generally accepted accounting principles;
(ii) except as otherwise permitted by Section 5.02(c), preserve
and keep in full force and effect its existence and preserve and
keep in full force and effect its licenses, rights and franchises
to the extent necessary to carry on its business;
(iii) maintain and keep, or cause to be maintained and kept,
its properties in good repair, working order and condition, and
from time to time make or cause to be made all needful and proper
repairs, renewals, replacements and improvements, in each case to
the extent such properties are not obsolete and not necessary to
carry on its business;
(iv) comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or
its property, except to the extent being contested in good faith
by appropriate proceedings, and compliance with ERISA and
Environmental Laws;
(v) maintain insurance with responsible and reputable
insurance companies or associations or through its own program of
self-insurance in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which it operates
and furnish to the Administrative Agent, within a reasonable time
after written request therefor, such information as to the
insurance carried as any Lender, through the Administrative
Agent, may reasonably request;
(vi) pay and discharge its obligations and liabilities
in the ordinary course of business, except to the extent that such
obligations and liabilities are being contested in good faith by
appropriate proceedings; and
(vii) from time to time upon reasonable notice, permit or
arrange for the Administrative Agent, the LC Issuing Banks, the
Lenders and their respective agents and representatives to
inspect the records and books of account of the Borrower and its
subsidiaries during regular business hours.
(b) Use of Proceeds. The Borrower may use the proceeds
of the Borrowings and the Letters of Credit for only general
corporate purposes including (i) financing, in part, investments
by and capital expenditures of the Borrower and its subsidiaries,
(ii) subject to the terms and conditions of this Agreement,
repurchases of common stock of the Borrower and/or investments in
nonregulated and/or nonutility businesses and (iii) financing
working capital requirements of the Borrower and its
subsidiaries.
(c) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year
of the Borrower, (A) consolidated balance sheets of the Borrower
and its subsidiaries as of the end of such quarter and (B)
consolidated statements of income and retained earnings of the
Borrower and its subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such
quarter, each certified by a duly authorized officer of the
Borrower as having been prepared in accordance with generally
accepted accounting principles, consistently applied;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the annual
report for such year for the Borrower and its subsidiaries,
containing consolidated financial statements for such year
certified without qualification by Deloitte & Touche LLP (or such
other nationally recognized public accounting firm as the
Administrative Agent may approve), and certified by a duly
authorized officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles,
consistently applied;
(iii) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower and within 120 days after the end of the
fiscal year of the Borrower, a certificate of a duly authorized
officer of the Borrower, stating that no Prepayment Event or
Event of Default has occurred and is continuing, or if a
Prepayment Event or an Event of Default has occurred and is
continuing, a statement setting forth details of such Prepayment
Event or Event of Default, as the case may be, and the action
that the Borrower has taken and proposes to take with respect
thereto;
(iv) as soon as possible and in any event within five days after
the Borrower has knowledge of the occurrence of each Prepayment
Event, Event of Default and each event that, with the giving of
notice or lapse of time or both, would constitute a Prepayment
Event or an Event of Default, continuing on the date of such
statement, a statement of the duly authorized officer of the
Borrower setting forth details of such Prepayment Event or Event
of Default or event, as the case may be, and the actions that the
Borrower has taken and proposes to take with respect thereto;
(v) as soon as possible and in any event within five days after
the Borrower receives notice of the commencement of any
litigation against, or any arbitration, administrative,
governmental or regulatory proceeding involving, the Borrower or
any of its subsidiaries, that, if adversely determined, could
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), operations, business,
properties or prospects of the Borrower, notice of such
litigation describing in reasonable detail the facts and
circumstances concerning such litigation and the Borrower's or
such subsidiary's proposed actions in connection therewith;
(vi) promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to any of its securities holders,
and copies of all reports and registration statements which the
Borrower files with the SEC or any national securities exchange
pursuant to the Securities Act of 1933 or the Exchange Act, and
of all certificates pursuant to Rule 24 which the Borrower files
with the SEC pursuant to the Public Utility Holding Company Act
of 1935 in connection with the proceeding of the SEC in File No.
70-10202 related to the SEC Order, the SEC file or files related
to the New SEC Order or any subsequent proceedings related
thereto;
(vii) as soon as possible and in any event (A) within 30 days
after the Borrower knows or has reason to know that any ERISA
Termination Event described in clause (i) of the definition of
ERISA Termination Event with respect to any ERISA Plan has
occurred and (B) within 10 days after the Borrower knows or has
reason to know that any other ERISA Termination Event with
respect to any ERISA Plan has occurred, a statement of the chief
financial officer of the Borrower describing such ERISA
Termination Event and the action, if any, that the Borrower
proposes to take with respect thereto;
(viii) promptly and in any event within two Business Days
after receipt thereof by the Borrower from the PBGC, copies of
each notice received by the Borrower of the PBGC's intention to
terminate any ERISA Plan or to have a trustee appointed to
administer any ERISA Plan;
(ix) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each ERISA Plan;
(x) promptly and in any event within five Business Days after
receipt thereof by the Borrower from a Multiemployer Plan
sponsor, a copy of each notice received by the Borrower
concerning the imposition of withdrawal liability pursuant to
Section 4202 of ERISA;
(xi) promptly and in any event within five Business Days after
▇▇▇▇▇'▇ or S&P has changed any Senior Debt Rating of any
Significant Subsidiary, notice of such change; and
(xii) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
subsidiaries as the Administrative Agent or any LC Issuing Bank
or any Lender through the Administrative Agent may from time to
time reasonably request.
(d) SEC Orders. Maintain the SEC Order and, on and after the
date of any Extension of Credit after June 30, 2007, the New SEC
Order, in full force and effect and comply with all terms and
conditions thereof until all amounts outstanding under this
Agreement shall have been repaid or paid (as the case may be) and
the Termination Date has occurred.
SECTION 5.02. Negative Covenants.
So long as any amount payable by the Borrower hereunder
shall remain unpaid or any Lender shall have any Commitment or
any Letter of Credit shall remain outstanding hereunder, the
Borrower will not, without the written consent of the Majority
Lenders:
(a) Liens, Etc. Create or suffer to exist any Lien upon or with
respect to any of its properties (including, without limitation,
any shares of any class of equity security of any of its
Significant Subsidiaries or of Entergy New Orleans), in each case
to secure or provide for the payment of Debt, other than:
(i) Liens in existence on the date of this Agreement; (ii) Liens
for taxes, assessments or governmental charges or levies to the
extent not past due, or which are being contested in good faith
in appropriate proceedings diligently conducted and for which the
Borrower has provided adequate reserves for the payment thereof
in accordance with generally accepted accounting principles;
(iii) pledges or deposits in the ordinary course of business to
secure obligations under worker's compensation laws or similar
legislation; (iv) other pledges or deposits in the ordinary
course of business (other than for borrowed monies) that, in the
aggregate, are not material to the Borrower; (v) purchase money
mortgages or other liens or purchase money security interests
upon or in any property acquired or held by the Borrower in the
ordinary course of business to secure the purchase price of such
property or to secure indebtedness incurred solely for the
purpose of financing the acquisition of such property; (vi) Liens
imposed by law such as materialmen's, mechanics', carriers',
workers' and repairmen's Liens and other similar Liens arising in
the ordinary course of business for sums not yet due or currently
being contested in good faith by appropriate proceedings
diligently conducted; (vii) attachment, judgment or other similar
Liens arising in connection with court proceedings, provided that
such Liens, in the aggregate, shall not exceed $50,000,000 at any
one time outstanding, (viii) other Liens not otherwise referred
to in the foregoing clauses (i) through (vii) above, provided
that such Liens, in the aggregate, shall not exceed $100,000,000
at any one time and (ix) Liens created for the sole purpose of
extending, renewing or replacing in whole or in part Debt secured
by any Lien referred in the foregoing clauses (i) through (vi)
above, provided that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of indebtedness so
secured at the time of such extension, renewal or replacement and
that such extension, renewal or replacement, as the case may be,
shall be limited to all or a part of the property or Debt that
secured the Lien so extended, renewed or replaced (and any
improvements on such property); provided, further, that no Lien
permitted under the foregoing clauses (i) through (ix) shall be
placed upon any shares of any class of equity security of any
Significant Subsidiary or of Entergy New Orleans unless the
obligations of the Borrower to the Lenders hereunder are
simultaneously and ratably secured by such Lien pursuant to
documentation satisfactory to the Lenders.
(b) Limitation on Debt. Permit the total principal amount of
all Debt of the Borrower and its subsidiaries, determined on a
consolidated basis and without duplication of liability therefor,
at any time to exceed 65% of Capitalization determined as of the
last day of the most recently ended fiscal quarter of the
Borrower; provided, however, that for purposes of this Section
5.02(b) "Debt" and "Capitalization" shall not include (i) Junior
Subordinated Debentures issued to a subsidiary trust which has
issued preferred securities that are included in the calculation
of "Capitalization" and (ii) any Debt of any subsidiary of the
Borrower that is Non-Recourse Debt.
(c) Mergers, Etc. Merge with or into or consolidate with or
into any other Person, except that the Borrower may merge with
any other Person, provided that, immediately after giving effect
to any such merger, (i) the Borrower is the surviving corporation
or (A) the surviving corporation is organized under the laws of
one of the states of the United States of America and assumes the
Borrower's obligations hereunder in a manner acceptable to the
Majority Lenders, and (B) after giving effect to such merger, the
senior unsecured long-term debt of such Person shall be at least
BBB- and Baa3, (ii) no event shall have occurred and be
continuing that constitutes a Prepayment Event or an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, and
(iii) the Borrower shall not be liable with respect to any Debt
or allow its property to be subject to any Lien which would not
be permissible with respect to it or its property under this
Agreement on the date of such transaction.
(d) Disposition of Assets. Cause a Stock Disposition with
respect to any Significant Subsidiary, or permit any Significant
Subsidiary to cause a Stock Disposition with respect to any other
Person, unless (i) the Borrower shall continue to own directly or
indirectly all of the Common Equity of each Significant
Subsidiary, or (ii) such Stock Disposition is pursuant, required
or related to any regulatory authority and/or governing body
(pertaining (A) to the organization or formation of a regional
transmission organization or (B) to the separation or
disaggregation of generation, transmission and/or distribution
assets), and within 180 days of such Stock Disposition, the
Borrower applies (or causes such Significant Subsidiary to apply)
all of the Net Available Cash from such Stock Disposition (1) to
prepay, repay, purchase, repurchase, redeem, retire, defease or
otherwise acquire for value Debt of the Borrower and/or Debt of
one or more Domestic Regulated Utility Subsidiaries that remain a
subsidiary of the Borrower and/or (2) to reinvest in the business
of one or more Domestic Regulated Utility Subsidiaries of the
Borrower.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following events shall constitute an "Event of
Default" hereunder:
(a) The Borrower shall fail to pay any principal of any Advance
or any reimbursement obligation in respect of a Letter of Credit
when the same becomes due and payable, or shall fail to pay
interest thereon or any other amount payable under this Agreement
within three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect or misleading
in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(b) or 5.02 or
(ii) any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if the failure
to perform or observe such other term, covenant or agreement
shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent
or any Lender; or
(d) The Borrower shall fail to pay any principal of or premium
or interest on any Debt of the Borrower that is outstanding in a
principal amount in excess of $50,000,000 in the aggregate (but
excluding Debt hereunder) when the same becomes due and payable
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or
(e) The Borrower, any Significant Subsidiary or Entergy New
Orleans shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against
the Borrower, any Significant Subsidiary or Entergy New Orleans
seeking to adjudicate it as bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property)
shall occur; or the Borrower, any Significant Subsidiary or
Entergy New Orleans shall take any corporate action to authorize
or to consent to any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower and either
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any
period of 10 consecutive Business Days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) (i) An ERISA Plan of the Borrower or any ERISA Affiliate of
the Borrower shall fail to maintain the minimum funding standards
required by Section 412 of the Internal Revenue Code of 1986 for
any plan year or a waiver of such standard is sought or granted
under Section 412(d) of the Internal Revenue Code of 1986, or
(ii) an ERISA Plan of the Borrower or any ERISA Affiliate of the
Borrower is, shall have been or will be terminated or the subject
of termination proceedings under ERISA, or (iii) the Borrower or
any ERISA Affiliate of the Borrower has incurred or will incur a
liability to or on account of an ERISA Plan under Section 4062,
4063 or 4064 of ERISA and there shall result from such event
either a liability or a material risk of incurring a liability to
the PBGC or an ERISA Plan, or (iv) any ERISA Termination Event
with respect to an ERISA Plan of the Borrower or any ERISA
Affiliate of the Borrower shall have occurred, and in the case of
any event described in clauses (i) through (iv), (A) such event
(if correctable) shall not have been corrected and (B) the then-
present value of such ERISA Plan's vested benefits exceeds the
then-current value of assets accumulated in such ERISA Plan by
more than the amount of $25,000,000 (or in the case of an ERISA
Termination Event involving the withdrawal of a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), the
withdrawing employer's proportionate share of such excess shall
exceed such amount).
SECTION 6.02. Remedies.
If any Prepayment Event or Event of Default shall occur and
be continuing, then, and in any such event, the Administrative
Agent (i) shall at the request, or may with the consent, of the
Majority Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances and the obligation of
each LC Issuing Bank to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Majority Lenders, by
notice to the Borrower, declare the Advances, all interest
thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by
the Borrower; provided, however, that in the event of an actual
or deemed entry of an order for relief with respect to the
Borrower, any Significant Subsidiary or Entergy New Orleans under
the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances and the obligation of each LC Issuing Bank to issue
Letters of Credit shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
SECTION 6.03. Cash Collateral Account.
Notwithstanding anything to the contrary contained herein,
no notice given or declaration made by the Administrative Agent
pursuant to this Article VI shall affect (i) the obligation of
any LC Issuing Bank to make any payment under any Letter of
Credit in accordance with the terms of such Letter of Credit or
(ii) the obligations of each Lender in respect of each such
Letter of Credit; provided, however, that if an Event of Default
has occurred and is continuing, the Administrative Agent shall at
the request, or may with the consent, of the Majority Lenders,
upon notice to the Borrower, require the Borrower to deposit with
the Administrative Agent an amount in the cash collateral account
(the "Cash Collateral Account") described below equal to the LC
Outstandings on such date. Such Cash Collateral Account shall at
all times be free and clear of all rights or claims of third
parties. The Cash Collateral Account shall be maintained with
the Administrative Agent in the name of, and under the sole
dominion and control of, the Administrative Agent, and amounts
deposited in the Cash Collateral Account shall bear interest at a
rate equal to the rate generally offered by Citibank for deposits
equal to the amount deposited by the Borrower in the Cash
Collateral Account, for a term to be determined by the
Administrative Agent, in its sole discretion. The Borrower
hereby grants to the Administrative Agent for the benefit of the
LC Issuing Banks and the Lenders a Lien in and hereby assigns to
the Administrative Agent for the benefit of LC Issuing Banks and
the Lenders all of its right, title and interest in, the Cash
Collateral Account and all funds from time to time on deposit
therein to secure its reimbursement obligations in respect of
Letters of Credit. If any drawings then outstanding or
thereafter made are not reimbursed in full immediately upon
demand or, in the case of subsequent drawings, upon being made,
then, in any such event, the Administrative Agent may apply the
amounts then on deposit in the Cash Collateral Account, toward
the payment in full of any of the LC Outstandings as and when
such obligations shall become due and payable. Upon payment in
full, after the termination of the Letters of Credit, of all such
obligations, the Administrative Agent will repay and reassign to
the Borrower any cash then in the Cash Collateral Account and the
Lien of the Administrative Agent on the Cash Collateral Account
and the funds therein shall automatically terminate.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action.
Each LC Issuing Bank and Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the
Advances), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Majority Lenders, and such instructions shall be binding upon all
Lenders; provided, however, that the Administrative Agent shall
not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary
to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender and LC Issuing Bank prompt notice
of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence
or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may consult with
legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iii) shall
not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; (iv) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any
lien or security interest created or purported to be created
under or in connection with, this Agreement or any other
instrument or document furnished pursuant hereto; and (v) shall
incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates.
With respect to its Commitment and the Advances made by it,
Citibank shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Administrative Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its affiliates
may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
the Borrower, any of its subsidiaries and any Person who may do
business with or own securities of the Borrower or any such
subsidiary, all as if Citibank were not the Administrative Agent
and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on the financial statements referred to in
Section 4.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent (to
the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Advances then outstanding
to each of them (or if no Advances are at the time outstanding,
ratably according to the respective amounts of their
Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that no
Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable
counsel fees) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement,
to the extent that such expenses are reimbursable by the Borrower
but for which the Administrative Agent is not reimbursed by the
Borrower.
SECTION 7.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor
Administrative Agent, which, for so long as no Prepayment Event
or Event of Default has occurred and is continuing, shall be a
Lender and shall be approved by the Borrower (with such approval
not to be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders and approved by the Borrower, and shall have accepted
such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States
or of any other country that is a member of the OECD having a
combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. Notwithstanding the
foregoing, if no Prepayment Event or Event of Default, and no
event that with the giving of notice or the passage of time, or
both, would constitute a Prepayment Event or an Event of Default,
shall have occurred and be continuing, then no successor
Administrative Agent shall be appointed under this Section 7.06
without the prior written consent of the Borrower, which consent
shall not be unreasonably withheld or delayed.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
No amendment or waiver of any provision of this Agreement,
nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and
signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed
by all the Lenders (other than any Lender that is the Borrower or
an Affiliate of the Borrower), do any of the following:
(a) waive any of the conditions specified in Section 3.01 or
3.02, (b) increase the Commitments of the Lenders (other than
pursuant to Section 2.05(b)) or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the Advances or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances, or the number
of Lenders that shall be required for the Lenders or any of them
to take any action hereunder or (f) amend this Section 8.01; and
provided further, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent and the
LC Issuing Banks in addition to the Lenders required above to
take such action, affect the rights or duties of the
Administrative Agent or the LC Issuing Banks under this
Agreement, and provided further, that this Agreement may be
amended and restated without the consent of any Lender, any LC
Issuing Bank or the Administrative Agent if, upon giving effect
to such amendment and restatement, such Lender, such LC Issuing
Bank or the Administrative Agent, as the case may be, shall no
longer be a party to this Agreement (as so amended and restated)
or have any Commitment or other obligation hereunder or under any
Letter of Credit and shall have been paid in full all amounts
payable hereunder to such Lender, such LC Issuing Bank or the
Administrative Agent, as the case may be.
SECTION 8.02. Notices, Etc.
All notices and other communications provided for hereunder
shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Email:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, Attention: Treasurer; if to any Bank or LC
Issuing Bank, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender and if to the
Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank Loan Syndications,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telephone: ▇▇▇-▇▇▇-▇▇▇▇, Telecopier: 212-994-
0961, Email: ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇; or, as to each
party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Administrative
Agent pursuant to Article II or VII shall not be effective until
received by the Administrative Agent. Except as otherwise
provided in Section 5.01(c), notices and other communications
given by the Borrower to the Administrative Agent shall be deemed
given to the Lenders.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender, any LC Issuing Bank or
the Administrative Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses
incurred by the Administrative Agent in connection with the
preparation, execution, delivery, syndication administration,
modification and amendment of this Agreement and the other
documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement, subject, in
each case, to the terms of the Fee Letter. Any invoices to the
Borrower with respect to the aforementioned expenses shall
describe such costs and expenses in reasonable detail. The
Borrower further agrees to pay on demand all costs and expenses,
if any (including, without limitation, counsel fees and expenses
of outside counsel and of internal counsel), incurred by the
Administrative Agent, the Lenders and the LC Issuing Banks in
connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of, and the protection of the
rights of the Lenders under, this Agreement and the other
documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection
with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.05(b)(iii), 2.09(d), 2.10, 2.11
or 2.13, acceleration of the maturity of the Advances pursuant to
Section 6.02, assignment to another Lender upon demand of the
Borrower pursuant to Section 8.07(g) for any other reason, the
Borrower shall, upon demand by any Lender or any LC Issuing Bank
(with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender or such
LC Issuing Bank any amounts required to compensate such Lender or
such LC Issuing Bank for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including
loss of anticipated profits upon such Lender's or such LC Issuing
Bank's representation to the Borrower that it has made reasonable
efforts to mitigate such loss), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Advance.
Any Lender making a demand pursuant to this Section 8.04(b) shall
provide the Borrower with a written certification of the amounts
required to be paid to such Lender, showing in reasonable detail
the basis for the Lender's determination of such amounts;
provided, however, that no Lender shall be required to disclose
any confidential or proprietary information in any certification
provided pursuant hereto, and the failure of any Lender to
provide such certification shall not affect the obligations of
the Borrower hereunder.
(c) The Borrower hereby agrees to indemnify and hold each
Lender, each LC Issuing Bank, the Administrative Agent and their
respective Affiliates and their respective officers, directors,
employees and professional advisors (each, an "Indemnified
Person") harmless from and against any and all claims, damages,
losses, liabilities, costs or expenses (including reasonable
attorney's fees and expenses, whether or not such Indemnified
Person is named as a party to any proceeding or is otherwise
subjected to judicial or legal process arising from any such
proceeding) that any of them may incur or which may be claimed
against any of them by any Person or entity by reason of or in
connection with the execution, delivery or performance of this
Agreement or any transaction contemplated hereby, or the use by
the Borrower or any of its subsidiaries of the proceeds of any
Advance or the use by the Borrower or any beneficiary of any
Letter of Credit of such Letter of Credit, except that no
Indemnified Person shall be entitled to any indemnification
hereunder to the extent that such claims, damages, losses,
liabilities, costs or expenses are finally determined by a court
of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnified Person. The
Borrower's obligations under this Section 8.04(c) shall survive
the repayment of all amounts owing to the Lenders, the LC Issuing
Banks, and the Administrative Agent under this Agreement and the
termination of the Commitments. If and to the extent that the
obligations of the Borrower under this Section 8.04(c) are
unenforceable for any reason, the Borrower agrees to make the
maximum contribution to the payment and satisfaction thereof
which is permissible under applicable law. The Borrower also
agrees not to assert any claim against any Lender, any LC Issuing
Bank, any of such Lender's or such LC Issuing Bank's affiliates,
or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or
otherwise relating to this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds
of the Advances or the use by the Borrower or any beneficiary of
any Letter of Credit of such Letter of Credit.
SECTION 8.05. Right of Set-off.
Upon (i) the occurrence and during the continuance of any
Prepayment Event or Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.02
to authorize the Administrative Agent to declare the Advances due
and payable pursuant to the provisions of Section 6.02, each
Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement, whether or not
such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section
8.05 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Lender
may have.
SECTION 8.06. Binding Effect.
This Agreement shall become effective when it shall have
been executed by the Borrower, the Lenders and the Administrative
Agent and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent, each LC
Issuing Bank and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment and the Advances owing to it); provided,
however, that (i) the Borrower (unless a Prepayment Event or an
Event of Default shall have occurred and be continuing), each LC
Issuing Bank and the Administrative Agent shall have consented to
such assignment (in the case of the Administrative Agent and the
Borrower, with each such consent not to be unreasonably withheld
or delayed) by signing the Assignment and Acceptance referred to
in clause (iv) below; (ii) each such assignment shall be of a
constant, and not a varying, percentage of all rights and
obligations under this Agreement; (iii) the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $10,000,000 and shall be an integral multiple of
$1,000,000 (or shall be the total amount of the assigning
Lender's Commitment); and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any promissory notes held by the
assigning Lender and a processing and recordation fee of $3,500
(plus an amount equal to out-of-pocket legal expenses of the
Administrative Agent, estimated by the Administrative Agent and
advised to such parties). Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto). Notwithstanding anything to the
contrary contained in this Agreement, any Lender at any time may
assign all or any portion of its rights and obligations under
this Agreement to any Affiliate or Approved Fund of such Lender.
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto
as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01(e)
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such assignee appoints
and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee, together with any promissory
notes held by the assigning Lender, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the Borrower.
(e) Each Lender may sell participations to one or more banks,
financial institutions or other entities in or to all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and the Advances owing to it); provided, however, that
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower hereunder)
shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the maker of any
such Advance for all purposes of this Agreement and (iv) the
Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(g) If any Lender shall make any demand for payment under
Section 2.12 or 2.15, or if any Lender shall be the subject of
any notification or assertion of illegality under Section 2.13,
then within 30 days after any such demand (if, but only if, such
demanded payment has been made by the Borrower) or notification
or assertion, the Borrower may, with the approval of the
Administrative Agent and the LC Issuing Banks (which approval
shall not be unreasonably withheld) and provided that no
Prepayment Event, Event of Default or event that, with the giving
of notice or lapse of time or both, would constitute an Event of
Default, shall then have occurred and be continuing, demand that
such Lender assign in accordance with this Section 8.07 to one or
more assignees designated by the Borrower and acceptable to the
Administrative Agent all (but not less than all) of such Lender's
Commitment and the Advances owing to it within the period ending
on the later to occur of such 30th day and the last day of the
longest of the then current Interest Periods for such Advances;
provided, however, that the Borrower shall pay to the
Administrative Agent the $3,500 administrative fee payable
pursuant to clause (iv) of subsection (a) above if such assignee
is not a Lender immediately prior to such assignment. If any
such assignee designated by the Borrower and approved by the
Administrative Agent shall fail to consummate such assignment on
terms acceptable to such Lender, or if the Borrower shall fail to
designate any such assignees acceptable to the Administrative
Agent for all or part of such Lender's Commitment or Advances,
then such demand by the Borrower shall become ineffective; it
being understood for purposes of this subsection (h) that such
assignment shall be conclusively deemed to be on terms acceptable
to such Lender, and such Lender shall be compelled to consummate
such assignment to an Eligible Assignee designated by the
Borrower, if such Eligible Assignee (A) shall agree to such
assignment by entering into an Assignment and Acceptance with
such Lender and (B) shall offer compensation to such Lender in an
amount equal to all amounts then owing by the Borrower to such
Lender hereunder, whether for principal, interest, fees, costs or
expenses (other than the demanded payment referred to above and
payable by the Borrower as a condition to the Borrower's right to
demand such assignment), or otherwise. In addition, in the event
that the Borrower shall be entitled to demand the replacement of
any Lender pursuant to this subsection (h), the Borrower may, in
the case of any such Lender, with the approval of the
Administrative Agent (which approval shall not be unreasonably
withheld) and provided that no Prepayment Event, Event of Default
or event that, with the giving of notice or lapse of time or
both, would constitute an Event of Default, shall then have
occurred and be continuing, terminate all (but not less than all)
such Lender's Commitment and prepay all (but not less than all)
such Lender's Advances not so assigned, together with all
interest accrued thereon to the date of such prepayment and all
fees, costs and expenses and other amounts then owing by the
Borrower to such Lender hereunder, at any time from and after
such later occurring day in accordance with Sections 2.05 and
2.11 hereof (but without the requirement stated therein for
ratable treatment of the other Lenders), if and only if, after
giving effect to such termination and prepayment, the sum of the
aggregate principal amount of the Advances of all Lenders then
outstanding does not exceed the then remaining Commitments of the
Lenders. Notwithstanding anything set forth above in this
subsection (h) to the contrary, the Borrower shall not be
entitled to compel the assignment by any Lender demanding payment
under Section 2.12(a) of its Commitment and Advances or terminate
and prepay the Commitment and Advances of such Lender if, prior
to or promptly following any such demand by the Borrower, such
Lender shall have changed or shall change, as the case may be,
its Applicable Lending Office for its Eurodollar Rate Advances so
as to eliminate the further incurrence of such increased cost.
In furtherance of the foregoing, any such Lender demanding
payment or giving notice as provided above agrees to use
reasonable efforts to so change its Applicable Lending Office if,
to do so, would not result in the incurrence by such Lender of
additional costs or expenses which it deems material or, in the
sole judgment of such Lender, be inadvisable for regulatory,
competitive or internal management reasons.
(h) Anything in this Section 8.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(i) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Lender identified as
such in writing from time to time by the Granting Lender to the
Administrative Agent, the LC Issuing Banks and the Borrower, the
option to provide to the Borrower all or any part of any Advance
that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any such SPC
to make any Advance, (ii) if such SPC elects not to exercise such
option or otherwise fails to provide all or any part of such
Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof and (iii) no SPC or Granting
Lender shall be entitled to receive any greater amount pursuant
to Section 2.12 or 8.04(b) than the Granting Lender would have
been entitled to receive had the Granting Lender not otherwise
granted such SPC the option to provide any Advance to the
Borrower. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent,
and as if, such Advance were made by such Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for
which a Lender would otherwise be liable so long as, and to the
extent that, the related Granting Lender provides such indemnity
or makes such payment. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will
not institute against or join any other person in instituting
against such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the
United States or any State thereof. Notwithstanding the
foregoing, the Granting Lender unconditionally agrees to
indemnify the Borrower, the LC Issuing Banks, the Administrative
Agent and each Lender against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which
may be incurred by or asserted against the Borrower, the LC
Issuing Banks, the Administrative Agent or such Lender, as the
case may be, in any way relating to or arising as a consequence
of any such forbearance or delay in the initiation of any such
proceeding against its SPC. Each party hereto hereby
acknowledges and agrees that no SPC shall have the rights of a
Lender hereunder, such rights being retained by the applicable
Granting Lender. Accordingly, and without limiting the
foregoing, each party hereby further acknowledges and agrees that
no SPC shall have any voting rights hereunder and that the voting
rights attributable to any Advance made by an SPC shall be
exercised only by the relevant Granting Lender and that each
Granting Lender shall serve as the administrative agent and
attorney-in-fact for its SPC and shall on behalf of its SPC
receive any and all payments made for the benefit of such SPC and
take all actions hereunder to the extent, if any, such SPC shall
have any rights hereunder. In addition, notwithstanding anything
to the contrary contained in this Agreement any SPC may (i) with
notice to, but without the prior written consent of any other
party hereto, assign all or a portion of its interest in any
Advances to the Granting Lender and (ii) disclose on a
confidential basis any information relating to its Advances to
any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC.
This Section 8.07(i) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Advance
is being funded by an SPC at the time of such amendment.
SECTION 8.08. Governing Law.
THIS AGREEMENT AND ANY NOTE ISSUED PURSUANT TO SECTION 2.17
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
SECTION 8.09. Consent to Jurisdiction; Waiver of Jury Trial.
(a) To the fullest extent permitted by law, the Borrower hereby
irrevocably (i) submits to the non-exclusive jurisdiction of any
New York State or Federal court sitting in New York City and any
appellate court from any thereof in any action or proceeding
arising out of or relating to this Agreement and (ii) agrees that
all claims in respect of such action or proceeding may be heard
and determined in such New York State court or in such Federal
court. The Borrower hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding. The Borrower also
irrevocably consents, to the fullest extent permitted by law, to
the service of any and all process in any such action or
proceeding by the mailing by certified mail of copies of such
process to the Borrower at its address specified in Section 8.02.
The Borrower agrees, to the fullest extent permitted by law, that
a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(b) THE BORROWER, EACH LC ISSUING BANK, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY INSTRUMENT OR DOCUMENT
DELIVERED HEREUNDER.
SECTION 8.10. Execution in Counterparts.
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement.
SECTION 8.11. Electronic Communications.
(a) The Borrower hereby agrees that, to the extent the Borrower
is so able, it will provide to the Administrative Agent all
information, documents and other materials that it is obligated
to furnish to the Administrative Agent pursuant to this
Agreement, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates
and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a
conversion of an existing, borrowing or other extension of credit
(including any election of an interest rate or interest period
relating thereto), (ii) relates to the payment of any principal
or other amount due under this Agreement prior to the scheduled
date therefor, (iii) provides notice of any default or event of
default under this Agreement or (iv) is required to be delivered
to satisfy any condition precedent to the effectiveness of this
Agreement and/or any borrowing or other extension of credit
thereunder (all such non-excluded communications being referred
to herein collectively as "Communications"), by transmitting the
Communications in an electronic/soft medium in a format
acceptable to the Administrative Agent to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. In addition, the Borrower agrees
to continue to provide the Communications to the Administrative
Agent in the manner specified in this Agreement but only to the
extent requested by the Administrative Agent. To the extent
Borrower is unable to deliver any portion of the Communications
in an electronic/soft medium form, the Borrower shall promptly
deliver hard copies of such Communications to the Administrative
Agent.
(b) The Borrower further agrees that the Administrative Agent
may make the Communications available to the Lenders and the LC
Issuing Banks by posting the Communications on Intralinks or a
substantially similar electronic transmission systems (the
"Platform"). The Borrower acknowledges that the distribution of
material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated
with such distribution.
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS
IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, "AGENT PARTIES") HAVE ANY
LIABILITY TO THE BORROWER, ANY LENDER, ANY LC ISSUING BANK OR ANY
OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER'S OR THE
ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE
INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY
IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address
set forth above shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of this
Agreement. Each Lender and each LC Issuing Bank agrees that
notice to it (as provided in the next sentence) specifying that
the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such
Lender or such LC Issuing Bank for purposes of this Agreement.
Each Lender and each LC Issuing Bank agrees to notify the
Administrative Agent in writing (including by electronic
communication) from time to time of such Lender's or such LC
Issuing Bank's e-mail address to which the foregoing notice may
be sent by electronic transmission and (ii) that the foregoing
notice may be sent to such e-mail address.
(e) Nothing herein shall prejudice the right of the
Administrative Agent, any LC Issuing Bank or any Lender to give
any notice or other communication pursuant to this Agreement in
any other manner specified in this Agreement.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ENTERGY CORPORATION
By____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Treasurer
CITIBANK, N.A.,
as Administrative Agent, LC
Issuing Bank and Bank
By____________________________
Name:
Title:
BANKS
ABN AMRO BANK N.V.,
as LC Issuing Bank and Bank
By____________________________
Name:
Title:
By____________________________
Name:
Title:
BARCLAYS BANK PLC
By____________________________
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By____________________________
Name:
Title:
By____________________________
Name:
Title:
BNP PARIBAS
By____________________________
Name:
Title:
By____________________________
Name:
Title:
CALYON NEW YORK BRANCH
By____________________________
Name:
Title:
By____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
By____________________________
Name:
Title:
By____________________________
Name:
Title:
JPMORGAN CHASE BANK
By____________________________
Name:
Title:
KBC BANK N.V.
By____________________________
Name:
Title:
By____________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By____________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS BANK, FSB
By____________________________
Name:
Title:
MELLON BANK, N.A.
By____________________________
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By____________________________
Name:
Title:
REGIONS BANK
By____________________________
Name:
Title:
SOCIETE GENERALE
By____________________________
Name:
Title:
THE BANK OF NEW YORK
By____________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By____________________________
Name:
Title:
UFJ BANK LIMITED
By____________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By____________________________
Name:
Title:
WACHOVIA BANK, NA
By____________________________
Name:
Title:
WEST LB AG, NEW YORK BRANCH
By____________________________
Name:
Title:
By____________________________
Name:
Title:
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
ENTERGY CORPORATION
U.S. $2,000,000,000 Credit Agreement
Domestic Eurodollar
Name of Bank Lending Office Lending Office
___________________________________________________________
Citibank, N.A. 2 Penn's Way ▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Bank Loan Operations Bank Loan Operations
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
ABN AMRO Bank N.V. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ Suite 1500
Chicago, IL 60604- ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
1003 1003
Attn: Credit Attn: Credit
Administration Administration
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇▇▇▇▇.dziobas@▇▇▇▇ ▇▇▇▇▇▇▇.dziobas@abna
▇▇▇.▇▇▇ ▇▇▇.▇▇▇
4400 Post Oak 4400 Post Oak
Parkway Parkway
Suite 1500 Suite 1500
Houston, TX 77027 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Attn: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇ ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@abna
▇▇▇.▇▇▇ ▇▇▇.▇▇▇
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Bayerische Hypo-und Bayerische Hypo-und Bayerische Hypo-und
Vereinsbank AG, New Vereinsbank Vereinsbank
York Branch AG, New York Branch AG, Grand Cayman Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Vereinsbank AG
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BNP Paribas ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. New York, N.Y.
10019 10019
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ Avenue of the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First One Madison Avenue One Madison Avenue
Boston, acting ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
through its Cayman Attn: ▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇ ▇▇▇▇▇▇▇▇▇
Islands Branch ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@csf ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@csf
▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇@▇▇ ▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇@▇▇
▇▇.▇▇▇ ▇▇.▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇/ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇▇▇.▇.▇▇▇▇▇▇@jpmor ▇▇▇▇▇.▇.▇▇▇▇▇▇@jpmor
▇▇▇.▇▇▇ ▇▇▇.▇▇▇
/▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@jp /▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@jp
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇▇▇
KBC Bank N.V. KBC Bank N.V. KBC Bank N.V.
New York Branch New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
KeyBank National ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Association Mailcode: OH-01-27- Mailcode: OH-01-27-
0606 0606
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ 44114-1306
▇▇▇▇▇▇ Brothers ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇, FSB Floor Floor
New York, N.Y. 10019 New York, N.Y. 10019
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ Bank, N.A. Three Mellon Center, Three Mellon Center,
Room 1203 Room 1203
Pittsburgh, PA 15259- ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
0003 0003
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Mizuho Corporate ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Bank, Ltd. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
New York N.Y. 10036 New York N.Y., 10036
Regions Bank ▇▇▇ ▇▇▇▇ ▇▇. ▇. ▇▇▇ ▇▇▇▇ ▇▇. ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇/ Attn: ▇▇▇ ▇▇▇▇▇▇▇/
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇.▇▇▇▇▇▇▇@regions. ▇▇▇.▇▇▇▇▇▇▇@regions.
com/▇▇▇▇▇.▇▇▇▇▇@regi com/▇▇▇▇▇.▇▇▇▇▇@regi
▇▇▇.▇▇▇ ▇▇▇.▇▇▇
Societe Generale ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ New York, N.Y. 10022
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
The Bank of New York One Wall Street ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Attn: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Kalachman
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
The Royal Bank of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ plc ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇/ Attn: ▇▇▇▇▇▇ ▇▇▇▇/
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
1420 1420
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
UFJ Bank Limited
Union Bank of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ 90071
Wachovia Bank, NA ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: Email:
▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇ ▇▇▇▇▇▇▇.▇▇▇▇▇▇@wacho
▇▇▇.▇▇▇ ▇▇▇.▇▇▇
▇▇▇▇ ▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ Avenue of the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE II
COMMITMENT SCHEDULE
Name of Lender Commitment Amount
_____________________________________________________________
Citibank, N.A. $170,000,000
ABN AMRO Bank N.V. $140,000,000
BNP Paribas $140,000,000
JPMorgan Chase Bank $140,000,000
The Royal Bank of Scotland plc $140,000,000
Barclays Bank PLC $100,000,000
Calyon New York Branch $100,000,000
KeyBank National Association $100,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank $100,000,000
The Bank of New York $100,000,000
Wachovia Bank, NA $100,000,000
Credit Suisse First Boston, Cayman Islands $100,000,000
Branch
▇▇▇▇▇▇ Brothers Bank, FSB $75,000,000
Regions Bank $75,000,000
Societe Generale $75,000,000
Union Bank of California, N.A. $75,000,000
Bayerische Hypo-und Vereinsbank AG, New $45,000,000
York Branch
Mellon Bank, N.A. $45,000,000
KBC Bank N.V. $45,000,000
Mizuho Corporate Bank, Ltd. $45,000,000
West LB AG, New York Branch $45,000,000
UFJ Bank Limited $45,000,000
Total Commitment: $2,000,000,000
SCHEDULE 2.03(h)
LETTERS OF CREDIT
1. Letter of credit number 61611082, issued by Citibank, N.A.
in favor of The Power Authority of the State of New York for the
account of Borrower in the amount of $20,000,000.00 with an
expiration date of May 7, 2007.
2. Letter of credit number 61611083, issued by Citibank, N.A.
in favor of The Power Authority of the State of New York for the
account of Borrower in the amount of $20,000,000.00 with an
expiration date of May 7, 2007.
3. Letter of credit number S060450, issued by ABN AMRO Bank
N.V. in favor of PPL EnergyPlus, LLC for the account of Borrower
in the amount of $25,000,000.00 with an expiration date of June
30, 2005.
4. Letter of credit number 61608242, issued by Citibank, N.A.
in favor of St. ▇▇▇▇ Fire & Marine Insurance Company for the
account of Borrower in the amount of $2,500,000.00 with an
expiration date of December 31, 2005.
EXHIBIT A-1
FORM OF NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders and the LC Issuing Banks party
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the Credit
Agreement, dated as of May 25, 2005 (the "Credit Agreement", the
terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, the LC
Issuing Banks and Citibank, N.A., as Administrative Agent for
said Lenders and said LC Issuing Banks, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing")
as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
____, 20 __.
(ii) The Type of Advances to be made in connection with the
Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_____.
(iv) The Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is ___ month[s]1.
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Borrowing:
_________________________
(1) Delete for Base Rate Advances.
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (excluding those contained in subsections
(e) and (f) thereof with respect to each Extension of Credit requested
after the initial Extension of Credit) are correct,before and after
giving effect to the Proposed Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Prepayment Event or an Event of Default
or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
Very truly yours,
ENTERGY CORPORATION
By ____________________________
Name:
Title:
EXHIBIT A-2
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Administrative Agent
for the Lenders and the LC Issuing Banks party
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, Entergy Corporation, refers to the Credit
Agreement, dated as of _____________________, 2005 (the
"Credit Agreement", the terms defined therein being used herein
as therein defined), among the undersigned, certain Lenders party
thereto, the LC Issuing Banks and Citibank, N.A., as
Administrative Agent for said Lenders and said LC Issuing Banks,
and hereby gives you notice, irrevocably, pursuant to
Section 2.10 of the Credit Agreement, that the undersigned hereby
requests a Conversion under the Credit Agreement, and in that
connection sets forth below the information relating to such
Conversion (the "Proposed Conversion") as required by
Section 2.10 of the Credit Agreement:
(i) The Business Day of the Proposed Conversion is __________,
_____.
(ii) The Type of Advances comprising the Proposed Conversion is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Conversion is
$__________.
(iv) The Type of Advances to which such Advances are proposed to
be Converted is [Base Rate Advances] [Eurodollar Rate Advances].
(v) The Interest Period for each Advance made as part of the
Proposed Conversion is ___ month(s).2
____________________________
(2) Delete for Base Rate Advances
The undersigned hereby represents and warrants that the
following statements are true on the date hereof, and will be
true on the date of the Proposed Conversion:
(A) The Borrower's request for the Proposed Conversion is made
in compliance with Section 2.10 of the Credit Agreement; and
(B) The statements contained in Section 3.02 of the Credit
Agreement are true.
Very truly yours,
ENTERGY CORPORATION
By______________________________
Name:
Title:
EXHIBIT A-3
FORM OF REQUEST FOR ISSUANCE
[Date]
Citibank, N.A., as
Administrative Agent for the
Lenders and the LC Issuing
Banks party to the Credit
Agreement referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Entergy Corporation (the "Borrower"),
refers to the Credit Agreement, dated as of May 25, 2005 (as
amended, modified, or supplemented from time to time, the "Credit
Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, the Lenders and the LC
Issuing Banks party thereto and the Administrative Agent, and
hereby gives you notice, pursuant to Section 2.03 of the Credit
Agreement, that the Borrower hereby requests the issuance of a
Letter of Credit (the "Requested Letter of Credit") in accordance
with the following terms:
(i) the requested date of [issuance] [extension]
[modification] [amendment] of the Requested Letter of Credit
(which is a Business Day) is _____________;
(ii) the expiration date of the Requested Letter of
Credit requested hereby is ___________;3
(iii) the proposed stated amount of the Requested
Letter of Credit is _______________;4
(iv) The beneficiary of the Requested Letter of Credit
is: [insert name and address of beneficiary]; and
(v) the conditions under which a drawing may be made
under the Requested Letter of Credit are as follows:
___________________.
_____________________________
(3) Date may not be later than the fifth Business Day prior to
the Termination Date.
(4) Must be minimum of $100,000.
Attached hereto as Exhibit A is a consent to this requested
[amendment] [modification] executed by the beneficiary of the
Letter of Credit.5
Upon the issuance of the Letter of Credit by an LC Issuing
Bank in response to this request, the Borrower shall be deemed to
have represented and warranted that the applicable conditions to
an issuance of a Letter of Credit that are specified in Article
III of the Credit Agreement have been satisfied.
ENTERGY CORPORATION
By_______________________________
Name:
Title:
_____________________________
(5) Include this paragraph only if request is for modification
or amendment of the Letter of Credit.
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ___________, 20__
Reference is made to the Credit Agreement, dated as of May
25, 2005 (as amended, modified or supplemented from time to time,
the "Credit Agreement"), among Entergy Corporation, a Delaware
corporation (the "Borrower"), the Lenders (as defined in the
Credit Agreement), Citibank, N.A., as Administrative Agent for
the Lenders (the "Administrative Agent") and the LC Issuing Banks
(the "LC Issuing Banks"). Terms defined in the Credit Agreement
are used herein with the same meaning.
____________ (the "Assignor") and ___________ (the
"Assignee") agree as follows:
(a) The Assignor hereby sells and assigns to the Assignee
without recourse, and the Assignee hereby purchases and assumes
from the Assignor, that interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the date
hereof which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the
Credit Agreement, including, without limitation, such interest in
the Assignor's Commitment and the Advances owing to the Assignor.
After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee
will be as set forth in Section b of Schedule 1.
(b) The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any
of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto. Except as
specified in this Section b, the assignment hereunder shall be
without recourse to the Assignor.
(c) The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto;
(iv) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender; [and]
(v) specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof [and (vi) attaches
the forms prescribed by the Internal Revenue Service of the
United States certifying that it is exempt from United States
withholding taxes with respect to all payments to be made to the
Assignee under the Credit Agreement].1
(d) Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the
Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Schedule 1
hereto (the "Effective Date"); provided, however, that in no
event shall this Assignment and Acceptance become effective prior
to the payment for the processing and recordation fee to the
Administrative Agent as provided in Section 8.07(a) of the Credit
Agreement.
(e) Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
(f) Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative
Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees
with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Effective Date directly
between themselves.
(g) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(h) This Assignment and Acceptance may be signed in any
number of counterparts, each of which shall be deemed an original,
with the same effect as if the signatures thereto and hereto were
up on the same instrument.
_______________________________
(1) If the Assignee is organized under the laws of a jurisdiction
outside the United States.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1 hereto.
[NAME OF ASSIGNOR]
By________________________________
Name:
Title:
[NAME OF ASSIGNEE]
By_________________________________
Name:
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ___ day
of ___________, 20__
CITIBANK, N.A., as Administrative Agent and LC Issuing Bank
By_____________________________
Name:
Title:
ABN AMRO BANK N.V., as LC Issuing Bank
By_____________________________
Name:
Title:
[[________________________], as LC Issuing Bank
By____________________________
Name:
Title:]
Schedule 1
to
Assignment and Acceptance
Dated __________, 20__
Section (a)
Percentage Interest: ______%
Section (b)
Assignee's Commitment: $______
Aggregate Outstanding Principal
Amount of Advances owing $______
to the Assignee:
Section (c)
Effective Date1: _________, 20__
_______________________________
(1) This date should be no earlier than the date of acceptance by
the Administrative Agent.
EXHIBIT C
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
May 25, 2005
To each of the Lenders parties to the
Credit Agreement referred to below,
to Citibank, N.A., as Administrative Agent,
and to the LC Issuing Banks
Entergy Corporation
Ladies and Gentlemen:
I have acted as counsel to Entergy Corporation, a Delaware
corporation (the "Borrower"), in connection with the preparation,
execution and delivery of the Credit Agreement, dated as of May
25, 2005, by and among the Borrower, the Banks and LC Issuing
Banks parties thereto and Citibank, N.A., as Administrative
Agent. This opinion is furnished to you at the request of the
Borrower pursuant to Section 3.01(a)(v) of the Credit Agreement.
Unless otherwise defined herein or unless the context otherwise
requires, terms defined in the Credit Agreement are used herein
as therein defined.
In such capacity, I have examined:
(i) Counterparts of the Credit Agreement, executed by
the Borrower;
(ii) The Certificate of Incorporation of the Borrower
(the "Charter");
(iii) The Bylaws of the Borrower (the "Bylaws");
(iv) A certificate of the Secretary of State of the
State of Delaware, dated ____________, 2005, attesting to the
continued corporate existence and good standing of the Borrower
in that State;
(v) A certificate of the Secretary of State of the State of
Louisiana, dated ____________, 2005, attesting that the Borrower
is a foreign corporation duly qualified to conduct business in
that State;
(vi) A copy of the Order dated June 30, 2004 (File No.
70-10202) under the Public Utility Holding Company Act of 1935
(the "SEC Order"); and
(vii) The other documents furnished by the Borrower to the
Administrative Agent pursuant to Section 3.01(a) of the Credit
Agreement.
I have also examined such other corporate records of the
Borrower, certificates of public officials and of officers of the
Borrower, and agreements, instruments and other documents, as I
have deemed necessary as a basis for the opinions expressed
below.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, and
the conformity with the originals of all documents submitted to
me as copies. In making my examination of documents and
instruments executed or to be executed by persons other than the
Borrower, I have assumed that each such other person had the
requisite power and authority to enter into and perform fully its
obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof and
the due execution and delivery thereof by or on behalf of such
person of each such document and instrument. In the case of any
such person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it was
created, and is duly qualified and in good standing in each other
jurisdiction where the failure to be so qualified could
reasonably be expected to have a material effect upon its ability
to execute, deliver and/or perform its obligations under any such
document or instrument. I have further assumed that each
document, instrument, agreement, record and certificate reviewed
by me for purposes of rendering the opinions expressed below has
not been amended by any oral agreement, conduct or course of
dealing between the parties thereto.
As to questions of fact material to the opinions expressed
herein, I have relied upon certificates and representations of
officers of the Borrower (including but not limited to those
contained in the Credit Agreement and certificates delivered upon
the execution and delivery of the Credit Agreement) and of
appropriate public officials, without independent verification of
such matters except as otherwise described herein.
Whenever my opinions herein with respect to the existence or
absence of facts are stated to be to my knowledge or awareness,
it is intended to signify that no information has come to my
attention or the attention of other counsel working under my
direction in connection with the preparation of this opinion
letter that would give me or them actual knowledge of the
existence or absence of such facts. However, except to the
extent expressly set forth herein, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to my or
their knowledge of the existence or absence of such facts should
be assumed.
On the basis of the foregoing, having regard for such legal
consideration as I deem relevant, and subject to the other
limitations and qualifications contained in this letter, I am of
the opinion that:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business as a foreign
corporation in each jurisdiction in which the nature of the
business conducted or the property owned, operated or leased by
it requires such qualification.
(b) The execution, delivery and performance by the Borrower
of the Credit Agreement are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action and
do not contravene (i) the Charter or the Bylaws or (ii) law, or
(iii) any contractual or legal restriction binding on or
affecting the Borrower. The Credit Agreement has been duly
executed and delivered on behalf of the Borrower.
(c) No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body
is required for (i) the due execution, delivery and performance
by the Borrower of the Credit Agreement, including obtaining any
Extensions of Credit under the Credit Agreement, except for the
filing of the Declaration on Form U-1 and amendments and exhibits
thereto in File No. 70-10202 and the SEC Order, which have been
obtained, are final and in full force and effect, and are not the
subject of any appeal and (ii) after June 30, 2007, the
performance by the Borrower of the Credit Agreement, including
obtaining any Extensions of Credit under the Credit Agreement,
except for the filing of a Declaration on Form U-1 and amendments
and exhibits thereto, or the filing of amendments to File No. 70-
10202, to request, among other things, that the term of the SEC
Order be extended from at least June 30, 2007 to May 25, 2010, or
such later Termination Date as extended pursuant to Section 2.18
of the Credit Agreement and the New SEC Order and the SEC notice
or notices related thereto, which shall have been obtained and
shall be final and in full force and effect.
(d) Except as disclosed in the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 2004, and in the
Borrower's Quarterly Report on Form 10-Q for the period ended
March 31, 2005, there is no pending or, to the best of my
knowledge, threatened action or proceeding affecting the Borrower
or any of its subsidiaries before any court, governmental agency
or arbitrator that reasonably could be expected to affect
materially and adversely the condition (financial or otherwise),
operations, business, properties or prospects of the Borrower or
its ability to perform its obligations under the Credit
Agreement, or that purports to affect the legality, validity,
binding effect or enforceability of the Credit Agreement. To the
best of my knowledge, after inquiry, there has been no change in
any matter disclosed in such filings that reasonably could be
expected to result in such a material adverse effect.
(e) The Borrower is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended, or an "investment
adviser" within the meaning of the Investment Advisers Act of
1940, as amended.
(f) The Credit Agreement constitutes the legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms.
My opinions above are subject to the following
qualifications:
(i) My opinions are subject, as to enforceability, to
(A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting
creditors rights generally and (B) the application of general
principles of equity, including but not limited to the right to
have specific performance of contract obligations, regardless of
whether considered in a proceeding in equity or at law.
(ii) My opinion in paragraph (a) above, insofar as it relates to
the due incorporation, valid existence and good standing of the
Borrower under Delaware law, is given exclusively in reliance
upon a certification of the Secretary of State of Delaware, upon
which I believe I am justified in relying. A copy of such
certification has been provided to you.
(iii) My opinion set forth in paragraph (c) above as to the
obtaining of necessary governmental and regulatory approvals is
based solely upon a review of those laws that, in my experience,
are normally applicable to the Borrower in connection with
transactions of the type contemplated by the Credit Agreement.
(iv) My opinion in paragraph (f) above as to the legality,
validity, binding nature and enforceability of the Credit
Agreement is given in reliance upon a legal opinion of even date
herewith of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York counsel to the
Borrower, and is subject to the assumptions, limitations and
qualifications contained therein. A copy of the legal opinion of
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, is being provided to you
contemporaneously herewith.
Notwithstanding the qualifications set forth above, I have no
actual knowledge of any matter within the scope of said
qualifications that would cause me to change the opinions set
forth in this letter.
I am licensed to practice law only in the State of Louisiana
and, except as otherwise provided herein, my role as counsel to
the Borrower is limited to matters involving the laws of the
State of Louisiana and the federal laws of the United States of
America. Except to the extent otherwise expressly set forth
herein, and except with respect to matters governed by the
General Corporation Law of Delaware, I render no opinion on the
laws of any other jurisdiction or any subdivision thereof, and
have made no independent investigation into any such laws except
as specifically provided herein.
My opinions are expressed as of the date hereof, and I do
not assume any obligation to update or supplement my opinions to
reflect any fact or circumstance that hereafter comes to my
attention, or any change in law that hereafter occurs.
This opinion letter is being provided exclusively to and for
the benefit of the addressees hereof. It is not to be furnished
to or relied upon by any other party for any other purpose,
without prior express written authorization from me, except that
(A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP may rely hereon in connection with
their opinion to you of even date herewith on behalf of the
Borrower as to matters of New York law; (B) King & Spalding LLP
hereby is authorized to rely on this letter in the rendering of
their opinion to the Lenders and the LC Issuing Banks dated as of
the date hereof; and (C) any addressee of this letter may deliver
a copy hereof to any person that becomes a Lender or an LC
Issuing Bank under the Credit Agreement after the date hereof,
and such person may rely on this opinion as if it had been
addressed and delivered to it on the date hereof as an original
Bank or LC Issuing Bank that was a party to the Credit Agreement.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant General Counsel
EXHIBIT D
OPINION OF SPECIAL NEW YORK
COUNSEL TO THE AGENT
May 25, 2005
To each of the Lenders parties to the
Credit Agreement referred to below and
to Citibank, N.A., as Administrative Agent
Entergy Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A.,
as Administrative Agent, in connection with the preparation,
execution and delivery of the Credit Agreement, dated as of May
25, 2005 (the "Credit Agreement"), among Entergy Corporation, the
Lenders and LC Issuing Banks parties thereto and Citibank, N.A.,
as Administrative Agent. Terms defined in the Credit Agreement
are used herein as therein defined.
In this connection, we have examined the following
documents:
(a) a counterpart of the Credit Agreement, executed by the
parties thereto; and
(b) the other documents furnished to the Administrative Agent
pursuant to Section 3.01(a) of the Credit Agreement, including
(without limitation) the opinion (the "Opinion") of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, counsel to the Borrower.
In our examination of the documents referred to above, we
have assumed the authenticity of all such documents submitted to
us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that you have independently
evaluated, and are satisfied with, the creditworthiness of the
Borrower and the business terms reflected in the Credit
Agreement. We have relied, as to factual matters, on the
documents we have examined.
To the extent that our opinions expressed below involve
conclusions as to matters governed by law other than the law of
the State of New York, we have relied upon the Opinion and have
assumed without independent investigation the correctness of the
matters set forth therein, our opinions expressed below being
subject to the assumptions, qualifications and limitations set
forth in the Opinion. We note that we do not represent the
Borrower and, accordingly, are not privy to the nature or
character of its business. Accordingly, we have also assumed
that the Borrower is subject only to statutes, rules,
regulations, judgments, orders, and other requirements of law of
general applicability to corporations doing business in the State
of New York.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the opinion that the
Credit Agreement is the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with
its terms.
Our opinion is subject to the following qualifications:
(i) The enforceability of the Borrower's obligations under
the Credit Agreement is subject to the effect of any applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar law affecting creditors' rights generally.
(ii) The enforceability of the Borrower's obligations under
the Credit Agreement is subject to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at
law). Such principles of equity are of general application, and,
in applying such principles, a court, among other things, might
not allow a contracting party to exercise remedies in respect of
a default deemed immaterial, or might decline to order an obligor
to perform covenants.
(iii) We note further that, in addition to the application of
equitable principles described above, courts have imposed an
obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies,
and may also apply public policy considerations in limiting the
right of parties seeking to obtain indemnification under
circumstances where the conduct of such parties is determined to
have constituted negligence.
(iv) We express no opinion herein as to (A) Section 8.05 of the
Credit Agreement, (B) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (C) the
availability of specific performance or other equitable remedies,
(D) the enforceability of rights to indemnity under federal or
state securities laws or (E) the enforceability of waivers by
parties of their respective rights and remedies under law.
(v) Our opinions expressed above are limited to the law of the
State of New York, and we do not express any opinion herein
concerning any other law.
The foregoing opinion is solely for your benefit and may not
be relied upon by any other person or entity, other than any
Person that may become a Lender or LC Issuing Bank under the
Credit Agreement after the date hereof.
Very truly yours,
