EXHIBIT B-3(b)
CONFORMED COPY
THIRTY-THIRD SUPPLEMENTARY CAPITAL FUNDS
AGREEMENT AND ASSIGNMENT
This Thirty-third Supplementary Capital Funds Agreement and
Assignment (hereinafter referred to as "this Agreement") dated as
of December 20, 1999, is made by and between Entergy Corporation
("Entergy"), System Energy Resources, Inc. (the "Company"), and
The Chase Manhattan Bank, as Administrating Bank (the
"Administrating Bank") under the Reimbursement Agreement dated as
of December 1, 1988 (the "1988 Reimbursement Agreement"), as
amended by a First Amendment and Agreement to 1988 Reimbursement
Agreement dated as of January 11, 1991 ("First Amendment to 1988
Reimbursement Agreement") and a Second Amendment and Agreement to
1988 Reimbursement Agreement dated as of December 17, 1993
("Second Amendment to 1988 Reimbursement Agreement"), as amended
and restated as of December 27, 1996 (the "1996 Restated
Reimbursement Agreement"), and as amended and restated as of
December 20, 1999 (the 1988 Reimbursement Agreement as amended by
the First Amendment to 1988 Reimbursement Agreement, the Second
Amendment to 1988 Reimbursement Agreement, the 1996 Restated
Reimbursement Agreement and as amended and restated as of the
date hereof is herein called the "Amended and Restated
Reimbursement Agreement"), among the Company, The Bank of Tokyo-
Mitsubishi, Ltd., Los Angeles Branch (the "Funding Bank"), the
Administrating Bank, Union Bank of California, N.A., as
Documentation Agent, and the banks named therein (the
"Participating Banks").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock
of the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit 1 of the Grand Gulf Nuclear Electric
Station project (more fully described in the "Indenture"
hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the "Domestic
Agent"), and said banks entered into an Amended and Restated Bank
Loan Agreement dated as of June 30, 1977 (the "Amended and
Restated Agreement"), the First Amendment thereto, dated as of
March 20, 1980 (the "First Bank Loan Amendment"), the Second
Amended and Restated Bank Loan Agreement dated as of
June 15, 1981, as amended by the First Amendment dated as of
February 5, 1982 (as so amended, the "Second Amended and Restated
Bank Loan Agreement"), and the Second Amendment of the Second
Amended and Restated Bank Loan Agreement, dated as of June 30,
1983 as further amended by the Third Amendment thereto dated as
of December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of June
30, 1977 between Entergy, the Company and the Domestic Agent (the
"First Supplementary Capital Funds Agreement"), the Company and
Entergy supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Domestic Agent and such banks;
(iii) the First Bank Loan Amendment, among other things,
increased the amount of the loans made by the banks party thereto
to $808,000,000 and pursuant to the Fourth Supplementary Capital
Funds Agreement and Assignment (also substantially in the form of
this Agreement) dated as of March 20, 1980 (the "Fourth
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Domestic Agent and the banks under the Amended
and Restated Agreement as amended by the First Bank Loan
Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the Trustees
for the holders of $400,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 9.25% Series due 1989 (the "First
Series Bonds") issued under a Mortgage and Deed of Trust dated as
of June 15 1977, between the Company and United States Trust
Company of New York and Xxxxxxx X. Xxxx (Xxxxxx X. Xxxxx,
successor), as trustees (the "Trustees") (the "Mortgage"), as
supplemented by a First Supplemental Indenture dated as of June
15, 1977, between the Company and the Trustees (the Mortgage, as
so supplemented and as supplemented by a Second Supplemental
Indenture dated as of January 1, 1980, a Third Supplemental
Indenture dated as of June 15, 1981, a Fourth Supplemental
Indenture dated as of June 1, 1984, a Fifth Supplemental
Indenture dated as of December 1, 1984, a Sixth Supplemental
Indenture dated as of May 1, 1985, a Seventh Supplemental
Indenture dated as of June 15, 1985, an Eighth Supplemental
Indenture dated as of May 1, 1986, a Ninth Supplemental Indenture
dated as of May 1, 1986, a Tenth Supplemental Indenture dated as
of September 1, 1986, an Eleventh Supplemental Indenture dated as
of September 1, 1986, a Twelfth Supplemental Indenture dated as
of September 1, 1986, a Thirteenth Supplemental Indenture dated
as of November 15, 1987, a Fourteenth Supplemental Indenture
dated as of December 1, 1987, a Fifteenth Supplemental Indenture
dated as of July 1, 1992, a Sixteenth Supplemental Indenture
dated as of October 1, 1992, a Seventeenth Supplemental Indenture
dated as of October 1, 1992 and an Eighteenth Supplemental
Indenture dated as of April 1, 1993, and as the same may from
time to time hereafter be amended and supplemented in accordance
with its terms, being hereinafter called the "Indenture"),
entered into the Second Supplementary Capital Funds Agreement and
Assignment dated as of June 30, 1977 (the "Second Supplementary
Capital Funds Agreement") (substantially in the form of this
Agreement) to secure the First Series Bonds; (ii) Entergy, the
Company, and the Trustees, as trustees for the holders of
$98,500,000 aggregate principal amount of the Company's First
Mortgage Bonds, 12.50% Series due 2000 (the "Second Series
Bonds") issued under the Mortgage, as supplemented by a Second
Supplemental Indenture dated as of January 1, 1980 between the
Company and the Trustees, entered into the Third Supplementary
Capital Funds Agreement and Assignment dated as of January 1,
1980 (the "Third Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Second
Series Bonds; (iii) Entergy, the Company and the Trustees, as
trustees for the holders of $300,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 16% Series due 2000
(the "Third Series Bonds") issued under the Mortgage, as
supplemented by a Fifth Supplemental Indenture dated as of
December 1, 1984 between the Company and the Trustees, entered
into the Eleventh Supplementary Capital Funds Agreement and
Assignment dated as of December 1, 1984 (the "Eleventh
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Third Series Bonds;
(iv) Entergy, the Company and the Trustees, as trustees for the
holders of $100,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 15.375% Series due 2000 (the
"Fourth Series Bonds") issued under the Mortgage, as supplemented
by a Sixth Supplemental Indenture, dated as of May 1, 1985
between the Company and the Trustees, entered into the Thirteenth
Supplementary Capital Funds Agreement and Assignment dated as of
May 1, 1985 (the "Thirteenth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Fourth Series Bonds; (v) Entergy, the Company and the
Trustees, as trustees for the holders of $300,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 11%
Series due 2000 (the "Seventh Series Bonds") issued under the
Mortgage, as supplemented by a Ninth Supplemental Indenture,
dated as of May 1, 1986 between the Company and the Trustees,
entered into the Sixteenth Supplementary Capital Funds Agreement
and Assignment dated as of May 1, 1986 (the "Sixteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Seventh Series Bonds;
(vi) Entergy, the Company, and the Trustees, as trustees for the
holders of $300,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 9 7/8% Series due 1991 (the
"Eighth Series Bonds") issued under the Mortgage, as supplemented
by a Tenth Supplemental Indenture, dated as of September 1, 1986
between the Company and the Trustees, entered into the
Seventeenth Supplementary Capital Funds Agreement and Assignment
dated as of September 1, 1986 (the "Seventeenth Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Eighth Series Bonds; (vii) Entergy, the
Company and the Trustees, as trustees for the holders of
$250,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 10 1/2% Series due 1996 (the "Ninth Series
Bonds") issued under the Mortgage, as supplemented by an Eleventh
Supplemental Indenture, dated as of September 1, 1986 between the
Company and the Trustees, entered into the Eighteenth
Supplementary Capital Funds Agreement and Assignment dated as of
September 1, 1986 (the "Eighteenth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Ninth Series Bonds; (viii) Entergy, the Company and
the Trustees, as trustees for the holders of $200,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
11 3/8% Series due 2016 (the "Tenth Series Bonds") issued under
the Mortgage, as supplemented by a Twelfth Supplemental
Indenture, dated as of September 1, 1986 between the Company and
the Trustees, entered into the Nineteenth Supplementary Capital
Funds Agreement and Assignment dated as of September 1, 1986 (the
"Nineteenth Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Tenth
Series Bonds; (ix) Entergy, the Company and the Trustees, as
trustees for the holders of $200,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 14% Series due 1994
(the "Eleventh Series Bonds") issued under the Mortgage, as
supplemented by a Thirteenth Supplemental Indenture dated as of
November 15, 1987 between the Company and the Trustees, entered
into the Twentieth Supplementary Capital Funds Agreement and
Assignment dated as of November 15, 1987 (the "Twentieth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Eleventh Series Bonds;
(x) Entergy, the Company and the Trustees, as trustees for the
holders of $100,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 14.34% Series due 1992 (the
"Twelfth Series Bonds") issued under the Mortgage, as
supplemented by a Fourteenth Supplemental Indenture dated as of
December 1, 1987 between the Company and the Trustees, entered
into the Twenty-first Supplementary Capital Funds Agreement and
Assignment dated as of December 1, 1987 (the "Twenty-first
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Twelfth Series Bonds;
(xi) Entergy, the Company and the Trustees, as trustees for the
holders of $45,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 8.40% Series due 2002 (the
"Thirteenth Series Bonds") issued under the Mortgage, as
supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Supplementary Capital Funds Agreement and
Assignment dated as of July 1, 1992 (the "Twenty-fourth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Thirteenth Series
Bonds; (xii) Entergy, the Company and the Trustees, as trustees
for the holders of $105,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6.12% Series due 1995 (the
"Fourteenth Series Bonds") issued under the Mortgage, as
supplemented by a Sixteenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-fifth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-fifth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fourteenth Series
Bonds; (xiii) Entergy, the Company and the Trustees, as trustees
for the holders of $70,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 8.25% Series due 2002 (the
"Fifteenth Series Bonds") issued under the Mortgage, as
supplemented by a Seventeenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-sixth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-sixth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifteenth Series Bonds;
(xiv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6% Series due 1998 (the
"Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
the Twenty-seventh Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1993 (the "Twenty-seventh
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Sixteenth Series Bonds;
(xv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7.58% Series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1994 (the "Twenty-ninth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Seventeenth Series
Bonds; (xvi) Entergy, the Company and the Trustees, as trustees
for the holders of $100,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7.28% Series due 1999 (the
"Eighteenth Series Bonds") issued under the Mortgage, as
supplemented by a Twentieth Supplemental Indenture dated as of
August 1, 1996 between the Company and the Trustees, entered into
the Thirtieth Supplementary Capital Funds Agreement and
Assignment dated as of August 1, 1996 (the "Thirtieth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Eighteenth Series
Bonds; and (xvii) Entergy, the Company and the Trustees, as
trustees for the holders of $135,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 7.7% Series due
2000 (the "Nineteenth Series Bonds") issued under the Mortgage,
as supplemented by a Twenty-first Supplemental Indenture dated as
of August 1, 1996 between the Company and the Trustees, entered
into the Thirty-first Supplementary Capital Funds Agreement and
Assignment dated as of August 1, 1996 (the "Thirty-first
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Nineteenth Series
Bonds.
E. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent") and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982, as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the Eurodollar
Agent (the "Sixth Supplementary Capital Funds Agreement"), the
Company and Entergy supplemented their undertakings under the
Capital Funds Agreement for the benefit of the Eurodollar Agent
and said banks. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially in the
form of this Agreement) dated as of February 18, 1983 (the
"Seventh Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Eurodollar Agent and the Eurodollar
Banks.
F. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement")
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of December 1, 1983 (the "Ninth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of June 1, 1984 (the "Series B Reimbursement Agreement") which
provided, among other things, for the issuance by the Bank for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series B (the "Series B Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of June 1, 1984 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Tenth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of June 1, 1984 (the "Tenth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and Deposit Guaranty National Bank as trustee under
the indenture relating to the Series B Bonds.
H. The Company, Citibank, N.A. as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement (also substantially in the form of this Agreement)
dated as of December 1, 1984 (the "Twelfth Supplementary Capital
Funds Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under the
indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit Guaranty
National Bank, as holder of $47,208,334 aggregate principal
amount of the Company's First Mortgage Bonds, Pollution Control
Series A (the "Fifth Series Bonds") issued under the Mortgage, as
supplemented by a Seventh Supplemental Indenture dated as of June
15, 1985 between the Company and the Trustees, entered into the
Fourteenth Supplementary Capital Funds Agreement and Assignment
dated as of June 15, 1985 (the "Fourteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Fifth Series Bonds. The Fifth Series
Bonds were issued as security, in part, for the Claiborne County,
Mississippi 12 1/2% Pollution Control Revenue Bonds due 2015
(Middle South Energy, Inc. Project) (the "Series D Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of June 15, 1985 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fourteenth
Supplementary Capital Funds Agreement, Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Trustees and Deposit Guaranty National Bank as
trustee under the indenture relating to the Series D Bonds.
J. Entergy, the Company, the Trustees and Deposit Guaranty
National Bank, as holder of $95,643,750 aggregate principal
amount of the Company's First Mortgage Bonds, Pollution Control
Series B (the "Sixth Series Bonds") issued under the Mortgage, as
supplemented by an Eighth Supplemental Indenture dated as of May
1, 1986 between the Company and the Trustees, entered into the
Fifteenth Supplementary Capital Funds Agreement and Assignment
dated as of May 1, 1986 (the "Fifteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Sixth Series Bonds. The Sixth Series
Bonds were issued as security, in part, for the Claiborne County,
Mississippi 9 1/2%; Pollution Control Revenue Bonds due 2016
(Middle South Energy, Inc. Project) (the "Series E Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of May 1, 1986 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fifteenth
Supplementary Capital Funds Agreement, Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Trustees and Deposit Guaranty National Bank as
trustee under the indenture relating to the Series E Bonds.
K. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Xxxxxxx X.
Xxxxx (Xxxxxxx X. Xxxx, successor) (collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto,
each dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation, as Funding
Corporation, the Owner Trustee and the Company pursuant to which
PSRC invested $400,000,000 in an undivided interest in Unit No. 1
(which interest was subsequently acquired by Resources Capital
Management Corporation from PSRC and subsequently acquired by
RCMC I, Inc. (formerly known as RCMC Del., Inc.) from Resources
Capital Management Corporation), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation, as Funding
Corporation, the Owner Trustee and the Company pursuant to which
LMRC invested $100,000,000 in an undivided interest in Unit No. 1
(which interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the 1988 Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCS") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the 1988 Reimbursement Agreement with maximum
amounts of $104,000,000, and $26,000,000, (y) for the
reimbursement to such 1988 Funding Bank by the Participating
Banks for all drafts paid by such 1988 Funding Bank under any
1988 LOC and (z) for the reimbursement by the Company to such
1988 Funding Bank for the benefit of the Participating Banks of
sums equal to all drafts paid by such 1988 Funding Bank under any
1988 LOC. Pursuant to the Twenty-second Supplementary Capital
Funds Agreement and Assignment (substantially in the form of this
Agreement), dated as of December 1, 1988 (the "Twenty-second
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Administrating Bank, such 1988
Funding Bank and the Participating Banks.
L. Entergy, the Company and Chemical Bank entered into the
Twenty-third Supplementary Capital Funds Agreement dated as of
January 11, 1991 ("Twenty-third Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
First Amendment to 1988 Reimbursement Agreement (the 1988
Reimbursement Agreement, as amended by the First Amendment to
1988 Reimbursement Agreement, is herein called the "1991
Reimbursement Agreement") that provided, among other things, (i)
for the issuance by the Funding Bank, for the account of the
Company, of irrevocable transferable letters of credit ("1991
LOCS") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants, substantially in the form
of Exhibit A to the 1991 Reimbursement Agreement, with maximum
amounts of $116,601,440 and $29,150,360; (ii) for the
reimbursement to the Funding Bank by the Participating Banks for
all drafts paid by the Funding Bank under any 1991 LOC; and (iii)
for the reimbursement by the Company to the Funding Bank for the
benefit of the Participating Banks of sums equal to all drafts
paid by the Funding Bank under any 1991 LOC.
M. Entergy, the Company and Chemical Bank entered into the
Twenty-eighth Supplementary Capital Funds Agreement dated as of
December 17, 1993 ("Twenty-eighth Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
Second Amendment to 1988 Reimbursement Agreement (the 1988
Reimbursement Agreement, as amended by the First Amendment to
1988 Reimbursement Agreement and the Second Amendment to 1988
Reimbursement Agreement, is herein called the "1993 Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by the Funding Bank, for the account of the Company, of
irrevocable transferable letters of credit ("1993 LOCS") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, substantially in the form of Exhibit A
to the 1993 Reimbursement Agreement, with maximum amounts of
$132,131,960 and $33,032,990; (ii) for the reimbursement to the
Funding Bank by the Participating Banks for all drafts paid by
the Funding Bank under any 1993 LOC; and (iii) for the
reimbursement by the Company to the Funding Bank for the benefit
of the Participating Banks of sums equal to all drafts paid by
the Funding Bank under any 1993 LOC.
N. Entergy, the Company and the Administrating Bank
entered into the Thirty-second Supplementary Capital Funds
Agreement dated as of December 27, 1996 ("Thirty-second
Supplementary Capital Funds Agreement") in connection with the
execution and delivery of the 1996 Restated Reimbursement
Agreement that provided, among other things, (i) for the issuance
by the Funding Bank, for the account of the Company, of
irrevocable transferable letters of credit ("1996 LOCS") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, substantially in the form of Exhibit A
to the 1996 Restated Reimbursement Agreement, with maximum
amounts of $148,719,125.41 and $34,946,720.11; (ii) for the
reimbursement to the Funding Bank by the Participating Banks for
all drafts paid by the Funding Bank under any 1996 LOC; and (iii)
for the reimbursement by the Company to the Funding Bank for the
benefit of the Participating Banks of sums equal to all drafts
paid by the Funding Bank under any 1996 LOC.
O. The Company wishes to amend and restate the 1996
Restated Reimbursement Agreement in the manner provided in the
Amended and Restated Reimbursement Agreement and to provide for
the cancellation of the 1996 LOCs and issuance of new LOCs (the
"New LOCS") by the Funding Bank to further secure the Owner
Participants. The Amended and Restated Reimbursement Agreement
provides, among other things, (i) for the issuance by the
Funding Bank, for the account of the Company, of irrevocable
transferable letters of credit to the Owner Participants to
secure certain obligations of the Company to the Owner
Participants, such New LOCs to be substantially in the form of
Exhibit A to the Amended and Restated Reimbursement Agreement
with maximum amounts of $156,885,463.65 and $36,061,469.99; (ii)
for the reimbursement to the Funding Bank by the Participating
Banks for all drafts paid by the Funding Bank under any New LOC;
and (iii) for the reimbursement by the Company to the Funding
Bank for the benefit of the Participating Banks of sums equal to
all drafts paid by the Funding Bank under any New LOC (such
amounts shall hereinafter be called the "Reimbursement
Obligations").
P. The Company and Entergy, by this instrument, wish (i)
to continue to supplement their undertakings under the Capital
Funds Agreement for the benefit of the Funding Bank, the
Administrating Bank and the Participating Banks (collectively,
the "LOC Banks") and (ii) to create enforceable rights hereunder
in the Administrating Bank as hereinafter set forth.
Q. The Company, Entergy and certain other subsidiaries of
Entergy have joined in an Application-Declaration on Form U-1, as
amended and supplemented to date, in File No. 70-7561, filed with
the Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935 with respect to this Agreement and
certain other matters, the Securities and Exchange Commission has
issued orders (the "SEC Orders") granting and permitting to
become effective said Application-Declaration, as so amended and
supplemented (except that, as of the date hereof, no SEC Order
has been issued with respect to Post-Effective Amendment No. 11
to said Application-Declaration requesting authorization of an
increase in approved fees to allow payment in accordance with the
provisions of the Amended and Restated Reimbursement Agreement of
the maximum participation fees reflected therein), and the SEC
Orders are in full force and effect on the date of the execution
and delivery hereof.
R. All things necessary to make this Agreement the valid,
legally binding and enforceable obligation of each of the parties
hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and agreements
hereinafter set forth, the parties agree with each other as
follows:
ARTICLE I.
OBLIGATIONS OF ENTERGY AND THE COMPANY
1.1. Commercial Operation of the Project. The Company shall (and
Entergy shall cause the Company to) use its best efforts to
maintain the Project in commercial operation and, in connection
therewith, take all such action, including, without limitation,
all actions before governmental authorities, as shall be
necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall supply or
cause to be supplied to the Company:
(a) such amounts of capital as may be required from time to time
by the Company in order to maintain that portion of the
Capitalization (as defined in Section 1.6 hereof) of the Company
as shall be represented by the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock and the surplus of the Company, paid in,
earned and other, if any, at an amount equal to at least 35% of
the Capitalization of the Company or at such higher percentage as
governmental regulatory authorities having Jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the capital
heretofore made available to the Company by Entergy in exchange
for shares of the Company's common stock and (ii) the capital
made available to the Company at any time in question through the
incurrence by the Company of Indebtedness for Borrowed Money (as
defined in Section 1.6 hereof) as shall be required in order for
the Company to continue to own its undivided ownership interest
in the Project, to provide (without limitation) for interest
charges of the Company, to permit the commercial operation of
Unit No. 1, to permit the continuation of such commercial
operation and to pay in full all payments of the principal of,
and premium, if any, and interest on Indebtedness for Borrowed
Money (whether due at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise), it being understood
and agreed that, in connection with the capital requirements of
the Company, nuclear fuel leasing (including financing leases
therefor) and the entering into by the Company of industrial
development revenue bond financing with respect to pollution
control facilities and the issuance and sale by the Company of
debt securities, and, to the extent necessary or desirable,
preferred stock, to banks, institutions and the public may
constitute some of the means by which required capital can be
made available to the Company.
1.3. Manner of Performance. If, with respect to any amount of
capital which Entergy shall, at any time in question, be
obligated under the provisions of Section 1.2 to supply or cause
to be supplied to the Company, Entergy and the Company shall fail
to agree on the type, or terms, of any particular security to be
issued by the Company and sold to Entergy or to others for the
purpose of securing such required capital or if requisite
regulatory approvals are not obtained for any issuance and sale
so agreed upon or if such issuance and sale cannot for any other
reason be carried out, then and in such event, Entergy shall
supply such capital to the Company in the form of a cash capital
contribution.
1.4. Payments in Respect of the Reimbursement Obligations. If at
any time the Company shall require funds to pay the interest
(including, if and to the extent permitted by law, interest on
overdue principal, premium and interest) and premium, if any, on,
and the principal of, the Reimbursement Obligations (whether at
maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise) and the expenses, commitment fees,
financing charges, trustees' fees and administration expenses
attributable to the Reimbursement Obligations, and the funds of
the Company available for such purpose or purposes shall be
insufficient for any reason, including, without limitation, the
inability to borrow, or the absence of, funds under any local
agreement or similar instrument or instruments to which the
Company is now or hereafter becomes a party, Entergy will pay to
the Company in cash as a capital contribution the funds necessary
to enable the Company to pay the amounts referred to above in
this Section 1.4.
1.5. Subordination of Claims of Entergy Against the Company.
Entergy hereby agrees that (i) all amounts advanced by Entergy to
the Company (other than by way of purchases of capital stock of
the Company or capital contributions to the Company) shall, for
the purposes of this Agreement and so long as this Agreement
shall be in full force and effect, constitute Subordinated
Indebtedness of the Company (as defined in Section 1.6 hereof)
and (ii) no such Subordinated Indebtedness of the Company shall
be transferred or assigned (including by way of security) to any
person (other than to a successor of Entergy by way of merger or
consolidation or the acquisition by such person of all or
substantially all of Entergy's assets). The Company agrees that
it will record all Subordinated Indebtedness of the Company as
such on its books.
1.6. Definitions. For the purposes of this Agreement, the
following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any particular
time, an amount equal to the sum of the total principal amount of
all Indebtedness for Borrowed Money of the Company (exclusive of
Short Term Debt), secured or unsecured, then outstanding, and the
aggregate of the par value of, or stated capital represented by,
the outstanding shares of all classes of capital stock of the
Company and the surplus of the Company, paid in, earned and
other, if any;
(b) the term "Indebtedness for Borrowed Money" shall mean the
principal amount of all indebtedness for borrowed money, secured
or unsecured, of the Company then outstanding and shall include,
without limitation, the principal amount of all bonds issued by a
governmental or industrial development agency or authority in
connection with an industrial development revenue bond financing
of pollution control facilities constituting part of the Project;
(c) the term "Short Term Debt" shall mean the principal amount
of unsecured Indebtedness for Borrowed Money created or incurred
by the Company which matures by its terms not more than 12 months
after the date of the creation or incurrence thereof, and which
is not renewable or extendable at the option of the Company for a
period of more than 12 months from the date of the creation or
incurrence thereof pursuant to any revolving credit or similar
agreement; and
(d) the term "Subordinated Indebtedness of the Company" shall
mean indebtedness marked on the books of the Company as
subordinated and junior in right of payment to the Obligations
Secured Hereby (as defined in Section 5.1 hereof) to the extent
and in the manner set forth below:
(i) if there shall occur a Reimbursement Event of Default or
Prepayment Event (as defined in the Amended and Restated
Reimbursement Agreement), then so long as such Reimbursement
Event of Default or Prepayment Event shall be continuing and
shall not have been cured or waived, or unless and until all the
Obligations Secured Hereby shall have been paid in full in money
or money's worth at the time of receipt, no payment of principal
and premium, if any, or interest shall be made upon Subordinated
Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar case or proceedings, or any
receivership proceedings in connection therewith, relative to the
Company or its creditors or its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy proceedings, then the Obligations Secured Hereby shall
first be paid in full in money or money's worth at the time of
receipt, or payment thereof shall have been provided for, before
any payment on account of principal, premium, if any, or interest
is made upon Subordinated Indebtedness of the Company.
ARTICLE II.
NATURE OF THE OBLIGATIONS OF
ENTERGY AND THE COMPANY
2.1. Regulatory Approvals.
(a) Except as provided in Section 2.2 with respect to the
obligations of Entergy to make cash capital contributions to the
Company pursuant to the provisions of Sections 1.3 and 1.4 (as to
which the SEC Orders are in full force and effect at the date of
execution and delivery of this Agreement), the performance of the
obligations of Entergy hereunder shall be subject to the receipt
and continued effectiveness of all authorizations of governmental
regulatory authorities necessary at the time to permit Entergy at
the time to perform its duties and obligations then to be
performed hereunder, including the receipt and continued
effectiveness of all authorizations of governmental authorities
necessary at the time to permit Entergy at the time to supply or
cause to be supplied to the Company capital pursuant to the
provisions of Section 1.2 or to permit Entergy at the time to
acquire securities issued and sold to Entergy by the Company.
(b) The performance of the obligations of the Company hereunder
shall be subject to the receipt and continued effectiveness of
all authorizations of governmental regulatory authorities at the
time necessary to permit the Company to perform its duties and
obligations hereunder, including the receipt and continued
effectiveness of all authorizations of governmental regulatory
authorities at the time necessary to permit the Company to
operate the Project (or to have the Project operated for it) to
the extent the Project is then operable, and to issue and to sell
securities then to be issued and sold by the Company to Entergy
or to others for the purpose of securing required capital.
(c) Entergy and the Company shall use their best efforts to
secure and maintain all such authorizations of governmental
regulatory authorities.
2.2. Nature of Obligations.
(a) The obligations of Entergy hereunder to make cash capital
contributions to the Company pursuant to the provisions of
Sections 1.3 and 1.4 having heretofore been authorized by the SEC
Orders (and no other authorization by any governmental regulatory
authority being required) and the LOC Banks having relied on such
authorization in entering into the Amended and Restated
Reimbursement Agreement, Entergy agrees that its duty to perform
such obligations shall be absolute and unconditional, (a) whether
or not Entergy shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit Entergy to perform its other duties and obligations
hereunder, (b) whether or not the Company shall have received all
authorizations of governmental regulatory authorities necessary
at the time to permit the Company to perform its duties and
obligations hereunder, (c) whether or not any authorizations
referred to in the foregoing clauses (a) and (b) continue, at the
time, in effect, (d) whether or not, at any time in question, the
Company shall have performed its duties and obligations under
this Agreement, (e) whether or not the Project shall be
maintained in commercial operation, energy from the Project is
being produced or delivered or is available (including, without
limitation, delivery or availability to other subsidiaries of
Entergy), an abandonment of the Project shall have occurred or
the Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (f) whether or not the Company shall be
solvent, (g) regardless of any event of force majeure and (h)
regardless of any other circumstance, happening, condition or
event whatsoever, whether or not similar to any of the foregoing.
Subject to Section 2.1(a), all other obligations of Entergy
hereunder are similarly absolute and unconditional.
(b) In the event that Entergy shall cease to own at least a
majority of common stock of the Company and such lower ownership
percentage has been permitted pursuant to the consent of the LOC
Banks, the obligations of Entergy hereunder shall not be
increased by any amendment to, or modification of, the terms and
provisions of the Amended and Restated Reimbursement Agreement
unless Entergy shall have consented in writing to such amendment
or modification.
2.3. Waivers of Defenses. The obligations of Entergy under
Sections 1.2, 1.3 and 1.4 to supply capital or cause capital to
be supplied or to make cash capital contributions to the Company
shall not be subject to any abatement, reduction, limitation,
impairment, termination, set-off, defense, counterclaim or
recoupment whatsoever or any right to any thereof (including, but
not limited to, abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and recoupments
for or on account of any past, present or future indebtedness of
the Company to Entergy or any claim by Entergy against the
Company, whether or not arising under this Agreement and whether
or not arising out of any action or nonaction on the part of the
Company, or any LOC Bank, including any disposition of the
Project or any part thereof pursuant to the Indenture,
requirements of governmental authorities, actions of judicial
receivers or trustees or otherwise and whether or not arising
from wilful or negligent acts or omissions). The foregoing,
however, shall not, subject to the provisions of Section 1.5
hereof, affect in any other way any rights and remedies of
Entergy with respect to any amounts owed to Entergy by the
Company or any such claim by Entergy against the Company. The
obligations and liabilities of Entergy hereunder shall not be
released, discharged or in any way affected by any
reorganization, arrangement, compromise, composition or plan
affecting the Company or any change, waiver, extension,
indulgence or other action or omission in respect of any
indebtedness or obligation of the Company or Entergy, whether or
not the Company or Entergy shall have had any notice or knowledge
of any of the foregoing. Neither failure nor delay by the
Company or the LOC Banks to exercise any right or remedy provided
herein or by statute or at law or in equity shall operate as a
waiver thereof, nor shall any single or partial exercise of any
such right or remedy preclude any other or further exercise
thereof, or the exercise of any other right or remedy. Entergy
also hereby irrevocably waives, to the extent that it may do so
under applicable law, any defense based on the adequacy of a
remedy at law which may be asserted as a bar to the remedy of
specific performance in any action brought against Entergy for
specific performance of this Agreement by the Company or by the
LOC Banks or for their benefit by a receiver or trustee appointed
for the Company or in respect of all or a substantial part of the
Company's assets under the bankruptcy or insolvency law of any
jurisdiction to which the Company is or its assets are subject.
Anything in this Section 2.3 to the contrary notwithstanding,
Entergy shall not be precluded from asserting as a defense
against any claim made against Entergy upon any of its
obligations hereunder that it has fully performed such obligation
in accordance with the terms of this Agreement.
2.4. Subrogation, Etc. Entergy shall, subject to the provisions
of Section l.5, be subrogated to all rights of the LOC Banks
against the Company in respect of any amounts paid by Entergy
pursuant to the provisions of this Agreement and applied to the
payment of the Obligations Secured Hereby (as defined in Section
5.1 hereof). The LOC Banks agree that they will not deal with
the Company in such a manner as to prejudice such rights of
Entergy.
ARTICLE III.
TERM
This Agreement shall remain in full force and effect until,
and shall terminate and be of no further force and effect after,
all Obligations Secured Hereby shall have been paid in full in
money or money's worth at the time of receipt. It is agreed that
all the covenants and undertakings on the part of Entergy and the
Company set forth in this Agreement are exclusively for the
benefit of, and may be enforced only by, the LOC Banks as
provided in the Amended and Restated Reimbursement Agreement, or
for their benefit by a receiver or trustee for the Company or in
respect of all or a substantial part of its assets under the
bankruptcy or insolvency law of any jurisdiction to which the
Company is or its assets are subject.
ARTICLE IV.
ASSIGNMENT
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by any of the parties hereto,
except transfer or assignment by the LOC Banks to their
successors in accordance with Section 23(b) of the Amended and
Restated Reimbursement Agreement, except as otherwise provided in
Article V hereof and except that:
(i) in the event that Entergy shall consolidate with or merge
with or into another corporation or shall transfer to another
corporation or other person all or substantially all of its
assets, this Agreement shall be transferred by Entergy to and
shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such
consolidation, merger or other transfer, such corporation or
other person shall deliver to the Company and the Administrating
Bank a written assumption, in form and substance satisfactory to
the Administrating Bank, of Entergy's obligations and liabilities
under this Agreement and an opinion of counsel to the effect that
such instrument complies with the requirements hereof and
constitutes a valid, legally binding and enforceable obligation
of such corporation or other person; and
(ii) in the event that the Company shall consolidate with or
merge with or into another corporation or shall transfer to
another corporation or other person all or substantially all of
its assets, this Agreement shall be transferred by the Company to
and shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such
consolidation, merger or other transfer, such corporation or
other person shall deliver to the Administrating Bank a written
assumption, in form and substance satisfactory to the
Administrating Bank, of the Company's obligations and liabilities
under this Agreement and an opinion of counsel to the effect that
such instrument complies with the requirements hereof and
constitutes a valid, legally binding and enforceable obligation
of such corporation or other person.
ARTICLE V.
SECURITY ASSIGNMENT AND AGREEMENT
5.1. Assignment and Creation of Security Interest. As security
for (i) the due and punctual payment of the interest (including,
if and to the extent permitted by law, interest on overdue
principal, premium and interest) and premium, if any, on, and the
principal of, the Reimbursement Obligations (whether at the
stated maturity thereof, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (b) the due and
punctual payment of all fees and costs, expenses and other
amounts which may become payable by the Company under the Amended
and Restated Reimbursement Agreement, together in each case with
all costs of collection thereof (all such amounts referred to in
the foregoing clauses (i) and (ii) being hereinafter collectively
referred to as "Obligations Secured Hereby"), the Company hereby
assigns to the Administrating Bank and creates a security
interest in favor of the Administrating Bank, for the benefit of
the LOC Banks, in (x) all of the Company's rights to receive all
moneys paid, or caused to be paid, or to be paid or to be caused
to be paid, to the Company by Entergy pursuant to Section 1.4 of
this Agreement, and (y) all other claims, rights (but not
obligations or duties), powers, privileges, interests and
remedies of the Company (including, without limitation, all of
the Company's rights to receive all moneys paid, or caused to be
paid, or to be paid, or to be caused to be paid, to the Company
by Entergy pursuant to Sections 1.2 and 1.3 of this Agreement),
whether arising under this Agreement or by statute or in law or
in equity or otherwise, resulting from any failure by Entergy to
perform its obligations under this Agreement, but so far as this
clause (y) is concerned only to the extent required for the
payment when due and payable of the Obligations Secured Hereby,
together in each case with full power and authority, in the name
of the Administrating Bank, or the Company as assignor, or
otherwise, to demand payment of, enforce, collect, receive and
receipt for any and all of the foregoing (the rights, claims,
powers, privileges, interests and remedies referred to in clause
(y) being hereinafter sometimes called the "Collateral") .
5.2. Other Agreements.
(a) The Company will not assign the rights assigned in clause
(x) of Section 5.1 as security for any indebtedness other than
the Obligations Secured Hereby and will not assign the other
rights assigned in Section 5.1 as security for any indebtedness
other than the Obligations Secured Hereby, except as provided in
paragraph (b) of this Section 5.2.
(b) The Company has secured its Indebtedness for Borrowed Money
represented by (i) loans made by certain banks as referred to in
Whereas Clause C hereof by the First, Fourth, Fifth and Eighth
Supplementary Capital Funds Agreements, (ii) the First Series
Bonds, the Second Series Bonds, the Third Series Bonds, the
Fourth Series Bonds, the Seventh Series Bonds, the Eighth Series
Bonds, the Ninth Series Bonds, the Tenth Series Bonds, the
Eleventh Series Bonds, the Twelfth Series Bonds, the Thirteenth
Series Bonds, the Fourteenth Series Bonds, the Fifteenth Series
Bonds, the Sixteenth Series Bonds, the Seventeenth Series Bonds,
the Eighteenth Series Bonds and the Nineteenth Series Bonds, as
referred to in Whereas Clause D hereof by the Second, Third,
Eleventh, Thirteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-first, Twenty-fourth, Twenty-fifth,
Twenty-sixth, Twenty-seventh, Twenty-ninth, Thirtieth and Thirty-
first Supplementary Capital Funds Agreements, respectively, (iii)
loans made by certain banks as referred to in Whereas Clause E
hereof by the Sixth and Seventh Supplementary Capital Funds
Agreements, respectively, (iv) the obligations under the Series A
Reimbursement Agreement as referred to in Whereas Clause F hereof
by the Ninth Supplementary Capital Funds Agreement, (v) the
obligations under the Series B Reimbursement Agreement as
referred to in Whereas Clause G hereof by the Tenth Supplementary
Capital Funds Agreement, (vi) the obligations under the Series C
Reimbursement Agreement as referred to in Whereas Clause H hereof
by the Twelfth Supplementary Capital Funds Agreement, (vii) the
Fifth Series Bonds as referred to in Whereas Clause I hereof by
the Fourteenth Supplementary Capital Funds Agreement, (viii) the
Sixth Series Bonds as referred to in Whereas Clause J hereof by
the Fifteenth Supplementary Capital Funds Agreement, (ix) the
obligations under the 1988 Reimbursement Agreement as referred to
in Whereas Clause K hereof by the Twenty-second Supplementary
Capital Funds Agreement, (x) the obligations under the 1991
Reimbursement Agreement as referred to in Whereas Clause L hereof
by the Twenty-third Supplementary Capital Funds Agreement, (xi)
the obligations under the 1993 Reimbursement Agreement as
referred to in Whereas Clause M hereof by the Twenty-eighth
Supplementary Capital Funds Agreement, and (xii) the obligations
under the 1996 Restated Reimbursement Agreement as referred to in
Whereas Clause N hereof by the Thirty-second Supplementary
Capital Funds Agreement, and shall be entitled to secure the
interest and premium, if any, on, and the principal of, other
Indebtedness for Borrowed Money of the Company issued by the
Company to any person (except Entergy or any affiliate of
Entergy) to finance the cost of the Project (including, without
limitation, indebtedness outstanding under the Indenture) or to
refund (including any successive refundings) any such
Indebtedness issued for such purpose, the incurrence of which
Indebtedness is at the time permitted by the Indenture (herein
called "Additional Indebtedness"), by entering into a
supplementary capital funds agreement and assignment including,
without limitation, the First through Twenty-eighth Supplementary
Capital Funds Agreements (each being hereinafter called an
"Additional Supplementary Agreement") with the holders of such
Additional Indebtedness or representatives of or trustees for
such holders, or both, as the case may be (hereinafter called an
"Additional Assignee"). Each Additional Supplementary Agreement
shall be substantially in the form of this Agreement, except that
there shall be substituted in such Additional Supplementary
Agreement appropriate references to such Additional Indebtedness,
such Additional Assignee and the agreement or instrument under
which such Additional Indebtedness is issued in lieu of the
references herein to the Reimbursement Obligations, the LOC
Banks, the Amended and Restated Reimbursement Agreement and the
New LOCS, respectively, and such Additional Supplementary
Agreement may contain such other provisions as are not
inconsistent with this Agreement and do not adversely affect the
rights hereunder of the LOC Banks.
(c) Notwithstanding any provision of this Agreement to the
contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the
Administrating Bank, or any provision of or filing or recording
under the Uniform Commercial Code or any other applicable law of
any jurisdiction, the Administrating Bank agrees that the claims
of the Administrating Bank under Sections 1.2 and 1.3 of this
Agreement and any security interest, pledge or lien in favor of
the Administrating Bank now or hereafter existing in and to the
Collateral shall rank pari passu with the claims of each
Additional Assignee under the corresponding sections of the
Additional Supplementary Agreement to which it is a party and any
security interest, pledge or lien in favor of such Additional
Assignee thereunder now or hereafter existing in and to the
Collateral, irrespective of the time or times at which prior,
concurrent or subsequent Additional Supplementary Agreements are
entered into in accordance with Section 5.2(b) hereof.
5.3. Payments to the Administrating Bank. The Company agrees
that, if and whenever it shall make a demand to Entergy for any
payment pursuant to Section 1.2, 1.3, or 1.4 of this Agreement or
pursuant to the corresponding provisions of any Additional
Supplementary Agreement, it will separately identify the
respective portions of such payment, if any, required for (i) the
payment of Obligations Secured Hereby and (ii) the payment of any
other amounts then due and payable in respect of Additional
Indebtedness and instruct Entergy (subject to the provisions of
Section 5.4) to pay or cause to be paid the amount so identified
as required for the payment of Obligations Secured Hereby
directly to the Administrating Bank. Any payments made or caused
to be made by Entergy pursuant to Section 1.2 or 1.3 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement shall, to the extent necessary
to satisfy in full the assignment set forth in Section 5.1 of
this Agreement and the corresponding assignments set forth in the
Additional Supplementary Agreements, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
5.4. Payments to the Company. Notwithstanding the provisions of
Sections 5.1. and 5.3, unless and until the Administrating Bank
shall have given written notice to Entergy of the occurrence and
continuance of any Reimbursement Event of Default or Prepayment
Event (as defined in the Amended and Restated Reimbursement
Agreement), all moneys paid or to be paid to the Company pursuant
to Sections 1.2, 1.3 and 1.4 of this Agreement shall be paid
directly to the Company and the Company need not separately
identify the respective portions of payments as provided in
Section 5.3 hereof, provided that notice as to the amount of any
such payments or advances shall be given by the Company to the
Administrating Bank simultaneously with the demand by the Company
for any such payment. If the Administrating Bank shall have duly
notified Entergy of the occurrence of any such Reimbursement
Event of Default or Prepayment Event, such payments shall be made
in the manner and in the amounts specified in Section 5.3 hereof
until the Administrating Bank shall by further notice to Entergy
give permission that all such payments may be made again to the
Company, such permission being subject to revocation by a
subsequent notice pursuant to the first sentence of this Section
5.4. The Administrating Bank shall give such permission if no
such Reimbursement Event of Default or Prepayment Event continues
to exist.
5.5. Consent and Agreement of Entergy.
(a) Entergy hereby consents to the foregoing assignment and
agrees with the Administrating Bank to make payments to the
Administrating Bank in the amounts and in the manner specified in
Section 5.3 at the office of the Administrating Bank in New York
City, New York, which is presently located at Loan and Agency
Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
(b) Subject to the provisions of Section 2.4 hereof, Entergy
agrees that all payments made to the Administrating Bank or to
the Company as contemplated by Sections 5.3 and 5.4 shall be
final as between Entergy and the LOC Banks or the Company, as the
case may be, and that Entergy will not seek to recover from any
LOC Banks for any reason whatsoever any moneys paid to the
Administrating Bank by virtue of this Agreement, but the finality
of any such payment shall not prevent the recovery of any
overpayments or mistaken payments which may be made by Entergy
unless a Reimbursement Event of Default or Prepayment Event has
occurred and is continuing, in which case any such overpayment or
mistaken payment shall not be recoverable but shall constitute
Subordinated Indebtedness of the Company to Entergy.
ARTICLE VI.
AMENDMENTS
6.1. Restrictions on Amendments. This Agreement may not be
amended, waived, modified, discharged or otherwise changed
orally. It may be amended, waived, modified, discharged or
otherwise changed only by a written instrument which has been
signed by all the parties hereto and which has been approved by
the Administrating Bank or which does not materially adversely
affect the rights of the LOC Banks.
6.2. Administrating Bank's Execution. The Administrating Bank
shall, at the request of the Company, execute any instrument
amending, waiving, modifying, discharging or otherwise changing
this Agreement (a) as to which the Administrating Bank shall have
received an opinion of counsel to the effect that such instrument
has been duly authorized by Entergy and the Company and is
permitted by the provisions of Section 6.1 and that this
Agreement, as amended, waived, modified, discharged or otherwise
changed by such instrument, constitutes valid, legally binding
and enforceable obligations of the Company and Entergy, and (b)
which shall have been executed by Entergy and the Company. The
Administrating Bank shall be fully protected in relying upon the
aforesaid opinion.
ARTICLE VII.
NOTICES
7.1. Notices, Etc., in Writing. All notices, consents, requests
and other documents authorized or permitted to be given pursuant
to this Agreement shall be given in writing and either personally
served on the party to whom (or an officer of a corporate party)
it is given or mailed by registered or certified first-class
mail, postage prepaid, or sent by telex or telegram, addressed as
follows:
If to System Energy Resources, Inc., to:
Xxx 00000
Xxx Xxxxxxx, XX 00000
Attention: Treasurer
If to Entergy Corporation, to:
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
If to the Administrating Bank, to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxx Xxxxx
with copies to each party.
7.2. Delivery, Etc. Notices, consents, requests and other
documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 7.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VIII.
ENFORCEMENT
8.1. Enforcement Action. At any time when a Reimbursement Event
of Default or Prepayment Event under the Amended and Restated
Reimbursement Agreement has occurred and is continuing, the
Administrating Bank may proceed, in its own name, or as agent or
otherwise, to protect and enforce its rights, those of the other
LOC Banks and those of the Company under this Agreement by suit
in equity, action at law or other appropriate proceedings,
whether for the specific performance of any covenant or agreement
contained in this Agreement or otherwise, and whether or not the
Company shall have complied with any of the provisions hereof or
proceeded to take any action authorized or permitted under
applicable law. Each and every remedy of the LOC Banks shall, to
the extent permitted by law, be cumulative and shall be in
addition to any other remedy given hereunder or under the Amended
and Restated Reimbursement Agreement or now or hereafter existing
at law or in equity or by statute.
8.2. Attorney-in-Fact. The Company hereby constitutes
the Administrating Bank its true and lawful attorney,
irrevocably, with full power (in such attorney's name or
otherwise), at any time when a Reimbursement Event of Default or
Prepayment Event under the Amended and Restated Reimbursement
Agreement has occurred and is continuing, to enforce any of the
obligations contained herein or to take any action or institute
any proceedings which to the Administrating Bank may seem
necessary or advisable in the premises.
ARTICLE IX.
SEVERABILITY
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
SUCCESSION
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ENTERGY CORPORATION
By:/s/Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Vice President and Treasurer
SYSTEM ENERGY RESOURCES, INC.,
By:/s/Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrating Bank,
By: /s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
