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UNITED STATES OF AMERICA BEFORE THE SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. ----------------------------------------------------------- In the Matter of CERTIFICATE PURSUANT File No. 70-7580 (Public Utility Holding Company Act of 1935) ----------------------------------------------------------- This is to certify, pursuant to Rule 24 under the Public Utility Holding Company Act of 1935, as amended, that certain of the transactions proposed by Entergy Louisiana, Inc. ("ELI") in its Application-Declaration, as amended, in the above file, have been carried out in accordance with the terms and conditions of and for the purposes represented by said Application-Declaration, as amended, and pursuant to the orders of the Securities and Exchange Commission with respect thereto dated February 2, 1989, January 24, 1991, January 24, 1996, October 15, 1999 and March 22, 2001. On October 30, 2003, ELI executed a Consent consenting to the execution by River Fuel Company #2, Inc. ("River Fuel") of a Credit Agreement, dated as of October 30, 2003 (the "Credit Agreement"), among River Fuel, The Bank of New York and the various Lenders parties thereto. ELI also delivered Supplemental Instructions to The Bank of New York (as successor to United States Trust Company of New York), as Trustee ("Trustee"), under the Trust Agreement, dated as of January 27, 1989, among JPMorgan Chase Bank (as successor to Morgan Guaranty Trust Company of New York), as Trustor, the Trustee and ELI, as beneficiary, authorizing the Trustee to cause River Fuel to enter into the Credit Agreement. Attached hereto and incorporated by reference are the constituent documents to the transaction in definitive form. Exhibit B-1(g ) - Consent pursuant to Fuel Lease Exhibit B-2(g) - Supplemental Instructions pursuant to Trust Agreement. Exhibit B-4(g) - Credit Agreement Defined terms used herein and not otherwise defined herein have the meanings ascribed to such terms in the Application. IN WITNESS WHEREOF, ELI has caused this certificate to be executed this 7th day of November, 2003. ENTERGY LOUISIANA, INC. By: /s/ Steven C. McNeal Exhibit B-1(g ) ENTERGY LOUISIANA, INC. October 30, 2003 River Fuel Company # 2, Inc. The Bank of New York Gentlemen: Pursuant to the requirements of the Fuel Lease, dated as of January 31, 1989, between River Fuel Company # 2, Inc. ("Lessor") and Entergy Louisiana, Inc. (formerly Louisiana Power & Light Company and hereinafter, "Lessee"), Lessee hereby acknowledges receipt of a copy of (i) the Credit Agreement, dated as of October 30, 2003, among Lessor, The Bank of New York and the various Lenders parties thereto, and (ii) the Depositary Agreement, dated as of October 30, 2003, between Lessor and JPMorgan Chase Bank and approved by The Bank of New York, and consents to your entry of said Credit Agreement and Depositary Agreement. ENTERGY LOUISIANA, INC. By: /s/ Frank Williford Exhibit B-2(g) SUPPLEMENTAL INSTRUCTIONS No. 2003-1 These Supplemental Instructions are given pursuant to the Trust Agreement, dated as of January 27, 1989 (the "Trust Agreement"), among JPMorgan Chase Bank (as successor to The Chase Manhattan Bank) (as successor to Morgan Guaranty Trust Company of New York), as Trustor, The Bank of New York (successor to United States Trust Company of New York), as Trustee, and Entergy Louisiana, Inc. (formerly Louisiana Power & Light Company), as Beneficiary, under which River Fuel Trust #2 (the "Trust") was formed. WHEREAS, the Trust Agreement contemplates the delivery by the Beneficiary to and acceptance by the Trustee of Supplemental Instructions with respect to the execution and delivery of agreements, acceptance of assignments of agreements or rights, acquisitions of properties and entering into certain transactions by River Fuel Company #2, Inc., a Delaware corporation (the "Corporation"), all of the capital stock of which is owned by the Trust, in accordance with lawful requests of the Beneficiary; and WHEREAS, the Beneficiary now desires to give Supplemental Instructions to the Trustee as herein set forth: NOW, THEREFORE, the Beneficiary hereby gives, and the Trustee by its signature hereto hereby accepts, the following Supplemental Instructions: Section 1. Definitions. For the purpose of these Supplemental Instructions, the capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Trust Agreement. Section 2. Authorization and Direction to Use Best Efforts to Cause the Corporation to Accept and/or Execute Documents or Rights. The Trustee is authorized and directed, in the name and on behalf of the Trust, to use its best efforts to cause the Corporation to execute and deliver, and to cause the Corporation to perform its duties and obligations under: (a) The Credit Agreement, dated as of October 30, 2003 (the "Credit Agreement"), among the Corporation, The Bank of New York and the various Lenders parties thereto; (b) The Depositary Agreement, dated as of October 30, 2003 (the "Depositary Agreement"), between the Corporation and JPMorgan Chase Bank and approved by The Bank of New York; (c) The Commercial Paper Dealer Agreement, dated as of October 30, 2003 (the "Dealer Agreement"), between the Corporation and Merrill Lynch Money Markets, Inc.; and (d) All agreements, certificates and other documents necessary or desirable in connection with the Credit Agreement, the Depositary Agreement and the Dealer Agreement. Section 3. Confirmation of Trust. The Trustee hereby confirms by its execution hereof that the declaration of trust embodied in Section 3 of the Trust Agreement shall apply fully to all rights, estates, properties, assets, payments or proceeds received or obtained by the Trustee pursuant to these Supplemental Instructions, all of which constitute part of the Trust Estate. Section 4. Other Provisions. Except as herein expressly provided, all of the terms and provisions of the Trust Agreement shall as nearly as may be practicable apply to all rights and obligations obtained or incurred by the Trustee or the Corporation pursuant to these Supplemental Instructions. Section 5. Acknowledgment. The Beneficiary acknowledges that The Bank of New York is participating in this transaction in multiple capacities: as Trustee of the Trust, as the Administrative Agent and one of the Lenders under the Credit Agreement, and as the Letter of Credit issuer. In addition, an affiliate of The Bank of New York is Co-Lead Arranger and Book Manager under the Credit Agreement. The Beneficiary has no objection to The Bank of New York and its affiliate serving in such multiple capacities, and hereby waives any right it might have to assert any such objection or to challenge the enforceability of any of the documents to which The Bank of New York is a party by reason of The Bank of New York serving in such multiple capacities. IN WITNESS WHEREOF, the parties hereto have executed these Supplemental Instructions on the day and year first below written. Dated: October 30, 2003 ENTERGY LOUISIANA, INC. By: /s/ Frank Williford
TO
ENTERGY LOUISIANA, INC. RULE 24
Steven C. McNeal
Vice President and Treasurer
639 Loyola Avenue
New Orleans, Louisiana 70161
c/o The Bank of New York
101 Barclay Street, Floor 8 West
New York, New York 10286
One Wall Street
New York, New York 10286
Frank Williford
Assistant Treasurer
PURSUANT TO
TRUST AGREEMENT
OF RIVER FUEL TRUST #2
DATED JANUARY 27, 1989
Name: Frank Williford
Title: Assistant Treasurer
ACCEPTED:
THE BANK OF NEW YORK, as Trustee
By: /s/ Louis P. Young
Name: Louis P. Young
Title: Vice President
Exhibit B-4(g)
RIVER FUEL COMPANY #2, INC.
$55,000,000
CREDIT AGREEMENT
Dated as of October 30, 2003
with
THE BANK OF NEW YORK
as Administrative Agent
BANC ONE CAPITAL MARKETS, INC.
and
MIZUHO CORPORATE BANK, LTD.
as Co-Syndication Agents
WACHOVIA BANK, N.A.
as Documentation Agent
BNY CAPITAL MARKETS, INC.
and
BANC ONE CAPITAL MARKETS, INC.
as Co-Lead Arrangers and Book Managers
and
THE VARIOUS LENDERS
CREDIT AGREEMENT (this "Agreement"), dated as of October 30, 2003, among RIVER FUEL COMPANY #2, INC., a Delaware corporation (the "Company"), each of the Lenders from time to time parties to this Agreement (the "Lenders"), THE BANK OF NEW YORK, as letter of credit issuer and as agent for the Lenders (the "Bank"), BANC ONE CAPITAL MARKETS, INC. ("BOCMI"), as Co-Syndication Agent and Co-Lead Arranger and Book Manager, MIZUHO CORPORATE BANK, LTD., as Co-Syndication Agent, WACHOVIA BANK, N.A., as Documentation Agent, and BNY CAPITAL MARKETS, INC. ("BNYCMI"), as Co-Lead Arranger and Book Manager.
WHEREAS, the Company has requested the Bank to issue to the Depositary (as herein defined) a letter of credit for the benefit of holders of the Commercial Paper Notes and the Lenders from time to time to make revolving credit loans to the Company; and
WHEREAS, the Bank is willing to issue such letter of credit; and
WHEREAS, the Lenders wish to participate in such letter of credit and to make such revolving credit loans.
Therefore, the parties hereto hereby agree as follows:
"Applicable Commitment Fee Rate" means 0.125% per annum during a Level I Period, 0.150% per annum during a Level II Period, 0.200% per annum during a Level III Period, 0.250% per annum during a Level IV Period and 0.375% per annum during a Level V Period; provided, however, that if the Debt Ratings by S&P and Moody's are split-rated (i) by one rating category, the Applicable Commitment Fee Rate shall be determined by the higher of the two and (ii) by more than one rating category, the Applicable Commitment Fee Rate shall be determined by the level one below the higher rating by either S&P or Moody's.
"Applicable Margin" means 0.875% per annum during a Level I Period, 1.000% per annum during a Level II Period, 1.250% per annum during a Level III Period, 1.375% per annum during a Level IV Period and 2.250% per annum during a Level V Period; provided, however, that if the Debt Ratings by S&P and Moody's are split-rated (i) by one rating category, the Applicable Margin shall be determined by the higher of the two and (ii) by more than one rating category, the Applicable Margin shall be determined by the level one below the higher rating by either S&P or Moody's.
"Applicable Utilization Fee Rate" means (a) on any day on which Outstandings are more than 33.33%, but 66.67% or less, of the Total Commitment on such day, 0.125% per annum during a Level I Period, a Level II Period, a Level III Period or a Level IV Period and 0.250% per annum during a Level V Period; and (b) on any day on which Outstandings are more than 66.67% of the Total Commitment on such day, 0.125% per annum during a Level I Period, a Level II Period or a Level III Period and 0.250% per annum during a Level IV Period or a Level V Period; provided, however, that if the Debt Ratings by S&P and Moody's are split-rated (i) by one rating category, the Applicable Utilization Fee Rate shall be determined by the higher of the two and (ii) by more than one rating category, the Applicable Utilization Fee Rate shall be determined by the level one below the higher rating by either S&P or Moody's.
"Assignee" has the meaning specified in Section 11.03(c).
"Assignment and Acceptance" has the meaning specified in Section 11.03(c).
"B Note" means a promissory note of the Company, substantially in the form of Exhibit C hereto, payable to the order of a Lender and evidencing such Lender's Loans.
"Base Rate" means, for any day, the higher of (i) the Prime Rate in effect on such date and (ii) the sum of 1/2 of 1% per annum and the Federal Funds Rate in effect on such date.
"Base Rate Loan" means a Loan maturing on the Termination Date and bearing interest on the outstanding principal amount thereof until due and payable (whether by acceleration or otherwise) at a rate per annum equal to the Base Rate in effect from time to time.
"Borrowing Date" means any date on which Loans are made to the Company, which shall be a Business Day, as requested in a Borrowing Request
"Borrowing Request" means a borrowing request in the form of Exhibit F.
"Business Day" means any day other than (i) a Saturday, Sunday or a day on which banking institutions in New York City are authorized by law to close, or (ii) with respect to the making of any LIBOR Rate Loan (including the LIBOR Determination Date therefor), a day on which commercial banks are not open for domestic and international business (including dealings in dollar deposits) in London and New York City.
"Collateral Account" has the meaning specified in the Security Agreement.
"Collateral Agent" means JPMorgan Chase Bank, as agent for the Bank and the Lenders and for the respective holders of Intermediate Term Notes, pursuant to the Security Agreement.
"Commercial Paper Account" has the meaning specified in Section 2.03 hereof.
"Commercial Paper Notes" means the short term promissory notes of the Company to be issued and sold in the commercial paper market and entitled to the benefits of the Letter of Credit, all as provided in the Depositary Agreement.
"Commitment" means, with respect to a Lender, the amount set forth opposite such Lender's name on Schedule I, as such amount may be reduced from time to time pursuant to Sections 2.11 or 3.02.
"Commitment Fee" has the meaning specified in Section 2.09(a) hereof.
"Consent" means the consent of the Lessee to this Agreement, substantially in the form of Exhibit D hereto.
"Consolidated Indebtedness" means the Indebtedness of the Lessee and its consolidated subsidiaries.
"Credit Documents" means this Agreement, the Notes, the Depositary Agreement, any Letter of Credit and the Security Agreement.
"Credit Event" means each issuance or extension of a Letter of Credit, each issuance of Commercial Paper Notes and each making of Loans hereunder.
"Date of Issuance" means any date on which a Letter of Credit is issued by the Bank, which shall be a Business Day.
"Debt Rating" means the ratings by Moody's or S&P of the Lessee's senior secured long-term debt.
"Debt Ratio" means the ratio of (i) the Lessee's Consolidated Indebtedness and Preferred Stock to (ii) Total Liabilities and Equity.
"Default" means any event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" has the meaning specified in Section 3.02 hereof.
"Depositary" means JPMorgan Chase Bank or such other banking institution with a branch office in New York City as the Company (with the consent of the Bank) shall appoint as a depositary and as an issuing agent and a paying agent for the Commercial Paper Notes and which shall have entered into a Depositary Agreement with the Company.
"Depositary Agreement" means an agreement substantially in the form of Exhibit A hereto, together with all amendments and supplements thereto.
"Drawing Deadline" with respect to any Commercial Paper Note means the 16th day after the stated maturity date of such Commercial Paper Note, or if such 16th day is not a Business Day, the next succeeding Business Day.
"Event of Default" means any one or more of the events specified in Section 9.01 hereof.
"Face Amount" with respect to any Commercial Paper Note means the principal amount thereof plus, in the case of a Commercial Paper Note issued on an interest-bearing basis, all interest payable on such Commercial Paper Note to its stated maturity date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded, if necessary, to the next greater 1/16 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, then the Federal Funds Rate for such day shall be the average rate quoted to the Bank on such day on such transactions, as determined by the Bank.
"Fuel Lease" means the Fuel Lease, dated as of January 31, 1989, between the Company and the Lessee, together with all amendments and supplements thereto.
"Indebtedness" of any person means, without duplication, (i) all obligations of such person for borrowed money or for the deferred purchase price of property or services (including all obligations, contingent or otherwise, of such person in connection with letters of credit, bankers' acceptances, interest rate protection agreements or other similar instruments, including currency swaps) other than indebtedness to trade creditors and service providers incurred in the ordinary course of business and payable on usual and customary terms, (ii) all obligations of such person evidenced by bonds, notes, debentures or other similar instruments, (iii) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (iv) all obligations of such person under leases required to be accounted for as a liability on a balance sheet of such person, (v) all obligations of the types described in clauses (i), (ii), (iii) or (iv) above secured by (or for which the obligee has an existing right, contingent or otherwise, to be secured by) any lien upon or in property (including accounts and contract rights) owned by such person, even though such person has not assumed or become liable for the payment of such Indebtedness, (vi) all Indebtedness of others guaranteed by such person and (vii) all Indebtedness of any partnership of which such person is a general partner.
"Interest Payment Date" with respect to each LIBOR Rate Loan having an Interest Period of three months or less means the last day of the Interest Period for such LIBOR Rate Loan, and with respect to each LIBOR Rate Loan having an Interest Period of more than three months, means the day that is three months after the Borrowing Date for such LIBOR Rate Loan (provided that if such date is not a Business Day, the Interest Payment Date shall be the next succeeding Business Day) and the last day of the Interest Period therefor.
"Interest Period" with respect to any LIBOR Rate Loan means the term of such LIBOR Rate Loan; provided, however, that if any Interest Period would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day; any Interest Period that would otherwise extend beyond the Termination Date shall end on the Termination Date; and any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
"Intermediate Term Notes" means the Company's Intermediate Term Secured Notes issued pursuant to one or more Note Purchase Agreements.
"Lessee" means Entergy Louisiana, Inc. (formerly Louisiana Power & Light Company), a Louisiana corporation.
"Letter of Credit" means a letter of credit issued by the Bank, substantially in the form of Exhibit B hereto, together with all amendments thereto, or any other letter of credit, together with all amendments thereto, issued by the Bank in substitution therefor.
"Letter of Credit Fee" has the meaning specified in Section 2.08 hereof.
"Level I Period" means any period during which the Debt Rating is A- or higher by S&P or A3 or higher by Moody's.
"Level II Period" means any period that is not a Level I Period during which the Debt Rating is BBB+ or higher by S&P or Baa1 or higher by Moody's.
"Level III Period" means any period that is not a Level I Period or a Level II Period during which the Debt Rating is BBB or higher by S&P or Baa2 or higher by Moody's.
"Level IV Period" means any period that is not a Level I Period, a Level II Period or a Level III Period during which the Debt Rating is BBB- or higher by S&P and Baa3 or higher by Moody's.
"Level V Period" means any period that is not a Level I Period, a Level II Period, a Level III Period or a Level IV Period.
"LIBOR Determination Date" with respect to any LIBOR Rate Loan means two Business Days prior to the Borrowing Date for such LIBOR Rate Loan.
"LIBOR Rate" with respect to a LIBOR Rate Loan made on a Borrowing Date, means the rate (rounded upward to the nearest 1/8 of 1%), as determined by the Bank, at which deposits of U.S. Dollars are offered to the Bank in the London interbank market as of 11:00 A.M., London time, on the LIBOR Determination Date for such Loan, in an amount equal to the principal amount of the LIBOR Rate Loan to be made on such Borrowing Date and for a period equal to the Interest Period for such Loan.
"LIBOR Rate Loan" means any Loan having a fixed term of, and maturing in (at the election of the Company), one, two, three or six months, but in no event later than the Termination Date and bearing interest on the outstanding principal amount thereof until due and payable (whether by acceleration or otherwise) at a rate per annum based on the LIBOR Rate determined on the LIBOR Determination Date for such Loan.
"Loan" means any revolving credit loan made by the Lenders to the Company pursuant to Article IV hereof.
"LOC Payment" means any payment made by the Bank under the Letter of Credit.
"Moody's" means Moody's Investors Service, Inc., or any successor thereto.
"Note" means any Commercial Paper Note or B Note.
"Note Purchase Agreement" means an agreement between the Company and the purchasers named therein with respect to the sale by the Company of Intermediate Term Notes.
"Nuclear Fuel" has the meaning specified in Section 1 of the Fuel Lease.
"Outstandings" as of any date means the sum of (x) the principal amount of the Loans outstanding on such date, (y) the Face Amount of all Commercial Paper Notes outstanding on such date less the Face Amount of Commercial Paper Notes which have matured and for the payment of which funds are on deposit in the Note Redemption Account (as defined in the Depositary Agreement) and (z) the amount on such date of all unreimbursed LOC Payments.
"Participant" has the meaning specified in Section 11.03(b).
"Preferred Stock" means any mandatorily redeemable preferred stock of the Lessee.
"Prime Rate" means the rate of interest publicly announced by the Bank from time to time as its prime rate.
"Pro Rata Share" means with respect to any Lender at any time the proportion of such Lender's Commitment then in effect to the Total Commitment then in effect.
"Required Lenders" means at least two Lenders (which may include the Bank) whose Pro Rata Shares equal or exceed 50%.
"River Fuel Trust #2" means the trust created under the Trust Agreement.
"Security Agreement" means the Security and Collateral Agency Agreement dated as of January 31, 1989 between the Company and the Collateral Agent, together with all amendments and supplements thereto, and the collateral chattel mortgage, periodic supplements thereto, collateral chattel mortgage note, pledge agreement, periodic supplements thereto and notice of security interest.
"S&P" means Standard & Poor's, a division of the McGraw-Hill Companies, or any successor thereto.
"Special Termination Date" and "Special Termination Notice" have the meanings specified in Section 2.07 hereof.
"Termination Date" has the meaning specified in Section 2.06 hereof.
"Total Commitment" means, on any day, the aggregate Commitments on such day of all the Lenders as such amount may be reduced from time to time pursuant to Sections 2.11 or 3.02.
"Total Liabilities and Equity" means at any time the consolidated total liabilities and equity of the Lessee as shown on the most recent financial statement of the Lessee filed with the Securities and Exchange Commission on Form 10-K or Form 10-Q.
"Trust Agreement" means the Trust Agreement dated as of January 27, 1989 among JPMorgan Chase Bank (formerly Morgan Guaranty Trust Company of New York), as Trustor, The Bank of New York (originally United States Trust Company of New York), as Trustee, and Entergy Louisiana, Inc. (formerly Louisiana Power & Light Company), as Beneficiary.
"Unused Commitment" as of any date means an amount (determined on a daily basis as of the end of each day) equal to (i) the Total Commitment in effect on such date less (ii) Outstandings on such date.
"Utilization Fee" has the meaning specified in Section 2.09(b) hereof.
If any drawing under a Letter of Credit shall not have been reimbursed by the close of business on the date of such drawing, the Company shall be deemed to have requested from the Lenders a Base Rate Loan in an amount equal to the amount of such drawing for the purpose of reimbursing the Bank as aforesaid.
The Company's obligation to reimburse the Bank for payments made by the Bank under a Letter of Credit shall be absolute and unconditional under any circumstances and irrespective of any set-off, counterclaim or defense to payment which the Company may have or have had against the Bank or any Lender, including, without limitation, any defense based on the failure of the Company to receive all or any part of the proceeds from the sale of Commercial Paper Notes with respect to which such drawing was made or any non-application or misapplication by the Depositary of the proceeds of such drawing. No payment made as contemplated by this paragraph shall be deemed to be a waiver of any claim the Company may have against any party.
The Company represents and warrants to the Bank and the other Lenders that:
The Company covenants and agrees with the Bank and the other Lenders that so long as this Agreement shall remain in effect or any of the Notes or other obligations of the Company hereunder shall be unpaid, unless the Bank and the Required Lenders shall otherwise consent in writing, it will:
The Company covenants and agrees with the Bank and the other Lenders that so long as this Agreement shall remain in effect or any of the Notes or other obligations of the Company hereunder shall be unpaid, unless the Bank and the Required Lenders shall otherwise consent in writing, it will not, directly or indirectly:
IN WITNESS WHEREOF, the Company, the Bank and the other Lenders have caused this Agreement to be duly executed as of the day and year first above written.
The Company: RIVER FUEL COMPANY #2, INC.
By /s/ Louis Young
The Bank and a Lender: THE BANK OF NEW YORK
By /s/ Cynthia D. Howells
Co-Syndication Agent and MIZUHO CORPORATE BANK, LTD.
and a Lender:
By /s/ Jun Shimmachi
Co-Lead Arranger and BNY CAPITAL MARKETS, INC.
Book Manager:
By /s/ Philip Falivene
Co-Syndication Agent and, BANC ONE CAPITAL MARKETS, INC.
Co-Lead Arranger and
Book Manager:
By /s/ Thomas E. Both
Documentation Agent
and a Lender:
WACHOVIA BANK, N.A.
By /s/ D. Mitch Wilson
The Lenders: BANK ONE, N.A.
By /s/ Jane Bek Keil
THE BANK OF NOVA SCOTIA
By /s/ Pamela McDougall
SUMITOMO MITSUI BANKING
CORPORATION
By /s/ William M. Ginn
UNION BANK OF CALIFORNIA, N.A.
By /s/ Karen Elliott
BANK HAPOALIM, B.M.
By /s/ Helen H. Gateson
By /s/ Lenroy Hackett
Schedule I - River Fuel Company #2, Inc.
Commitments
Lender |
Commitment |
The Bank of New York |
$13,200,000 |
Bank One, N.A. |
$12,100,000 |
Mizuho Corporate Bank, Ltd. |
$12,100,000 |
Wachovia Bank, N.A. |
$ 5,500,000 |
The Bank of Nova Scotia |
$ 3,300,000 |
Sumitomo Mitsui Banking Corporation |
$ 3,300,000 |
Union Bank of California, N.A. |
$ 3,300,000 |
Bank Hapoalim, B.M. |
$ 2,200,000 |
Total Commitment: |
$55,000,000 |
EXHIBIT A
DEPOSITARY AGREEMENT
EXHIBIT B
[FORM OF LETTER OF CREDIT]
IRREVOCABLE LETTER OF CREDIT
THE BANK OF NEW YORK
[Date of Issuance]
Letter of Credit No.
To JPMorgan Chase Bank,
as Depositary for the benefit of
holders of Commercial Paper Notes
issued by River Fuel Company #2, Inc.
4 New York Plaza, 13th Floor
New York, New York 10004
Attention: Corporate Trust Administration
We hereby establish in your favor, in trust for the holders of the Commercial Paper Notes referred to below, this irrevocable Letter of Credit for the account of River Fuel Company #2, Inc. (the "Company"), for an aggregate amount, available from time to time, equal to the Face Amount (as hereinafter defined) of certain promissory notes of the Company (the "Commercial Paper Notes") authenticated and delivered by you pursuant to and in compliance with a certain Depositary Agreement dated as of October 30, 2003 as from time to time amended (the "Depositary Agreement"), between the Company and you, and consented to by The Bank of New York (the "Bank"), not to exceed $[maximum stated amount]. The "Face Amount" of a Commercial Paper Note means the principal amount thereof plus, in the case of any Commercial Paper Note issued on an interest-bearing basis, all interest payable on such Commercial Paper Note to its stated maturity date. Notwithstanding any other provision of this Letter of Credit, the aggregate liability of the Bank under this Letter of Credit shall not exceed $[maximum stated amount] at any one time.
Drawings hereunder may be made by you in the manner hereinafter provided for the payment of matured Commercial Paper Notes. Such drawings shall be made by your delivering to the Bank, at 101 Barclay Street, New York, New York 10286, to the attention of: The Manager, Standby Letter of Credit Department, Floor 8 East, a demand for payment (in writing or by Telecopy to No. (212) 298-1482, with telephonic confirmation of receipt at (212) 815-3462, or by any other telecommunication device capable of creating a record of such demand) in the form of Annex A hereto, with all blanks appropriately filled in and signed by your authorized officer.
Provided that such demand is delivered to the Bank not later than the close of business on such Commercial Paper Notes' Drawing Deadlines (as hereinafter defined), the Bank agrees to honor such demand drawn under and in compliance with this Letter of Credit by transferring to you for deposit in the Note Redemption Account (as defined in the Depositary Agreement) immediately available funds equal to the Face Amount of such Commercial Paper Notes for which payment is demanded, such funds to be held in the Note Redemption Account in trust for the holders of the Commercial Paper Notes for which such demand is made and to be applied to the payment of such Commercial Paper Notes.
If demand for payment is made by you hereunder at or prior to 10:00 A.M., New York City time, on a business day, and provided that such demand for payment conforms to the terms and conditions hereof, payment shall be made to you of the amount demanded, in immediately available funds, not later than 1:00 P.M., New York City time, on the same business day. If demand for payment is made by you hereunder after 10:00 A.M. but prior to 2:00 P.M., New York City time, on a business day, and provided that such demand for payment and the documents presented in connection therewith conform to the terms hereof, payment shall be made to you of the amount demanded, in immediately available funds, not later than the close of business, New York City time, on the same business day.
All payments hereunder will be made with the Bank's own funds and not with funds of the Company.
Except as otherwise expressly provided herein, for the purposes of this Letter of Credit:
This Letter of Credit is irrevocable with respect to any issued Commercial Paper Note. This Letter of Credit shall not be available with respect to any Commercial Paper Note after the Drawing Deadline thereof, or after full payment thereof, whichever is earlier; provided, however, that in no event shall this Letter of Credit remain in effect after [expiration date].
The obligation of the Bank hereunder with respect to each drawing hereunder shall be fully discharged upon the payment by the Bank in accordance herewith of the Face Amount of the Commercial Paper Notes with respect to which such drawing is made.
This Letter of Credit has been delivered in New York, New York and shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
This credit is not assignable or transferable and, except as otherwise expressly stated herein, is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce, Publication No. 500.
Very truly yours,
THE BANK OF NEW YORK
By________________________
Annex A
DRAWING CERTIFICATE
[Date]
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: The Manager, Standby Letter of
Credit Department, Floor 8 East
Re: Drawing Certificate
Gentlemen:
JPMorgan Chase Bank (the "Depositary") hereby certifies to The Bank of New York (the "Bank") with reference to Irrevocable Letter of Credit No.________ (the "Letter of Credit"; the terms "Depositary Agreement", "Face Amount" and "Commercial Paper Notes" as used herein having their respective meanings set forth in the Letter of Credit) that:
IN WITNESS WHEREOF, the Depositary has executed and delivered this Certificate as of the ____ day of ____________, ____.
JPMORGAN CHASE BANK,
as Depositary
By___________________________
EXHIBIT C
PROMISSORY NOTE
$[Amount of Lender's Commitment] New York, New York
[Insert Date of Note]
FOR VALUE RECEIVED, River Fuel Company #2, Inc., a Delaware corporation (the "Company"), DOES HEREBY PROMISE to pay to the order of [Name of Lender] (the "Lender") on the date or dates specified in the Credit Agreement referred to below, at the office of The Bank of New York (the "Bank") at One Wall Street, New York, New York, in lawful money of the United States of America, the principal amount of [Amount of Lender's Commitment] Dollars ($______________) or, if less than such principal amount, the aggregate outstanding principal amount of all Loans (as defined in the Credit Agreement) made to the Company by the Lender, and to pay interest on the unpaid principal amount hereof until paid, in like money at said office of the Bank, at the rate or rates and on the date or dates specified therefor in the Credit Agreement.
The Lender may record on the schedule attached hereto the date and amount of each Loan and the date and amount of each repayment of principal of such Loan. The failure of the Lender to so record shall not relieve the Company of its obligation to repay outstanding Loans and all interest thereon in accordance herewith.
This Note is one of the B Notes referred to in a certain Credit Agreement dated as of October 30, 2003 between the Company, the Bank, the Syndication Agents and the Lead Arrangers and Book Managers named therein and various Lenders (including the Lender) (said Credit Agreement, as from time to time heretofore or hereinafter amended, herein called the "Credit Agreement"), and is subject to prepayment and the maturity of the Loans evidenced hereby may be accelerated in accordance with the provisions of the Credit Agreement.
This Note is secured by certain collateral described in the Credit Agreement and in the Security Agreement referred to in the Credit Agreement.
RIVER FUEL COMPANY #2, INC.
By__________________________
Schedule to
Promissory Note dated [insert Date of Note]
of River Fuel Company #2, Inc.
Date |
Amount of Loan |
Amount of Principal Paid |
Balance Remaining Unpaid |
Notation Made By |
EXHIBIT D
ENTERGY LOUISIANA, INC.
639 Loyola Avenue
New Orleans, Louisiana 70113
River Fuel Company #2, Inc.
c/o The Bank of New York
101 Barclay Street, Floor 8 West
New York, New York 10286
Attention: Corporate Trust and Finance Unit
The Bank of New York
One Wall Street
New York, New York 10286
Dear Sirs:
Pursuant to the requirements of the Fuel Lease, dated as of January 31, 1989 between River Fuel Company #2, Inc. and Entergy Louisiana, Inc. (formerly Louisiana Power & Light Company), Entergy Louisiana, Inc. hereby acknowledges receipt of a copy of (i) the Credit Agreement, dated as of October 30, 2003 between River Fuel Company #2, Inc., The Bank of New York and the various Lenders parties thereto and (ii) the Depositary Agreement, dated as of October 30, 2003 between River Fuel Company #2, Inc. and JPMorgan Chase Bank and approved by The Bank of New York and consents to your entry into said Credit Agreement and Depositary Agreement.
Very truly yours,
ENTERGY LOUISIANA, INC.
By__________________________
Vice President and Treasurer
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement is made and entered into as of _________________, 20__, by and between _____________________ (the "Assignor") and ____________________ (the "Assignee").
R E C I T A L S
A. The Assignor and certain other lenders (the "Lenders") and The Bank of New York, as letter of credit issuer and agent for the Lenders (the "Bank"), are parties to that certain Credit Agreement dated as of October 30, 2003 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement") with River Fuel Company #2, Inc. (the "Company"). Pursuant to the Credit Agreement, the Lenders have agreed, subject to various conditions, to participate in letters of credit issued by the Bank for the account of the Company and to make revolving credit loans to the Company. The amount of the Assignor's Commitment (without giving effect to the assignment effected hereby or to other assignments thereof which have not yet become effective) is specified in Item 1 of Schedule 1 hereto. The Assignor's Pro Rata Share of the principal amount of outstanding Loans and LOC Payments funded by the Assignor (without giv ing effect to the assignment effected hereby or to other assignments thereof which have not yet become effective) is specified in Item 2 of Schedule 1 hereto. All capitalized terms not otherwise defined herein are used herein as defined in the Credit Agreement.
B. The Assignor wishes to sell and assign to the Assignee, and the Assignee wishes to purchase and assume from the Assignor, (i) the portion of the Assignor's Commitment specified in Item 3 of Schedule 1 hereto (the "Assigned Commitment") and (ii) the portion of the Assignor's Pro Rata Share of the principal amount of outstanding Loans and LOC Payments funded by the Assignor specified in Item 4 of Schedule 1 hereto (the "Assigned Loans"). The percentage of the Assignor's Pro Rata Share of the principal amount of outstanding Loans and LOC Payments funded by the Assignor that consists of the Assigned Loans is specified in Item 5(b) of Schedule 1 hereto.
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein and in the Credit Agreement, the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, without recourse, as of the date specified in Item 6 of Schedule 1 hereto (the "Assignment Effective Date") (a) all right, title and interest of the Assignor in and to the Assigned Loans and (b) all obligations of the Assignor under the Credit Agreement with respect to the Assigned Commitment. As full consideration for the sale of the Assigned Loans and the Assigned Commitment, the Assignee shall pay to the Assignor on the Effective Date the principal amount of the Assigned Loans (the "Purchase Price").
2. Representation and Warranties. Each of the Assignor and the Assignee represents and warrants to the other that (a) it has full power and legal right to execute and deliver this Agreement and to perform the provisions of this Agreement; (b) the execution, delivery and performance of this Agreement have been authorized by all necessary action, corporate or otherwise, and do not violate any provisions of its charter or by-laws or any contractual obligations or requirement of law binding on it; and (c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. The Assignor further represents 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 created by the Assignor.
3. Confirmations and Agreements of the Assignee. The Assignee (a) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered on or before the date hereof pursuant to Section 7.03 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (b) agrees that it will, independently and without reliance upon the Bank, BNYCMI, 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 any action under the Credit Documents; (c) appoints and authorizes the Bank to take such action as agent on its behalf and to exercise such powers under the Credit Documents as are delegated to the Bank by the terms thereof, together with such powers as are reasonably incidental thereto; and (d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.
4. Effect of Assignment. (a) As of the Assignment Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Agreement, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Agreement, relinquish its rights and be released from its obligations as a Lender under the Credit Agreement.
(b) The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Assignment Effective Date directly between themselves.
5. Consent of the Company and the Agent; Exchange of Notes. Pursuant to Section 11.03 of the Credit Agreement, the Company and the Bank, by signing below, consent to this Agreement and to the assignment contemplated herein. The Company further agrees to execute and deliver to the Assignor (if applicable) and the Assignee new Notes to reflect the assignment contemplated herein upon surrender of the Assignor's outstanding Note.
6. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon both parties, their successors and assigns.
7. Headings. Section headings have been inserted herein for convenience only and shall not be construed to be a part hereof.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
By:
By:
Address: |
|
Consented to: River Fuel Company #2, Inc. By:
The Bank of New York By:
|
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
between
___________________________, as Assignor
and
___________________________, as Assignee
relating to
Credit Agreement dated as of October 30, 2003
for
River Fuel Company #2, Inc.
Item 1. |
Assignor's Commitment |
$____________________ |
Item 2. |
Assignor's Loans: (a) Assignor's Pro Rata Share of Loans: |
$____________________ |
(b) Assignor's Pro Rata Share of funded LOC Payments: |
$____________________ |
|
Item 3. |
Amount of Assigned Commitment |
$____________________ |
Item 4. |
Amount of Assigned Loans: (a) Assigned Loans: |
$____________________ |
(b) Assigned LOC Payments |
$____________________ |
|
Item 5. |
Percentage of Assigned Commitment (a) As a percentage of the Total Commitment |
____________________% |
(b) As a percentage of Assignor's Commitment |
____________________% |
|
Item 6. |
Assignment Effective Date |
_______________, 20__ |
Exhibit F
RIVER FUEL COMPANY #2, INC.
c/o The Bank of New York
101 Barclay Street, Floor 8 West
New York, New York 10286
BORROWING REQUEST
The Bank of New York
Agency Function Administration
One Wall Street, 18th Floor
New York, NY 10286
Attention: Ms. Sandra Morgan, Agency Function Administration, Fax 212-635-6366
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 4.01(b) of the Credit Agreement, dated as of October 30, 2003 (together with all amendments, if any, from time to time made thereto, the "Credit Agreement"), among RIVER FUEL COMPANY #2, INC. (the "Borrower"), The Bank of New York, as Administrative Agent, and the various Lenders parties thereto. Unless otherwise defined herein or the context otherwise requires, terms used herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that a Loan be made in the aggregate principal amount of $____________ on ____ __, 20__ as a [Base Rate Loan] [Libor Rate Loan having an Interest Period of __ month(s)].
The Borrower hereby confirms that the applicable conditions precedent contained in Article VI of the Credit Agreement have been satisfied as of the date of this Borrowing Request and will be satisfied on the Borrowing Date, and further agrees that if prior to the time of the Loan requested hereby any such conditions precedent are not satisfied, it will immediately so notify the Administrative Agent. Except to the extent, if any, that prior to the time of the Loan requested hereby the Administrative Agent shall receive written notice to the contrary from the Borrower, each applicable condition precedent contained in Article VI of the Credit Agreement shall be deemed once again to be satisfied at the date of such Loan.
Please wire transfer the proceeds of the Loan requested hereby in same day or immediately available funds to the Account of the Indenture Trustee at the financial institution indicated:
Person to be Paid
Amount to be Transferred |
Name of Account |
Wire Funds to: |
$____________ |
The Borrower has caused this Borrowing Request to be executed and delivered, and the certification and warranties contained herein to be made, by its duly authorized officer this ___ day of ____, 20__.
RIVER FUEL COMPANY #2, INC.
By
Title: