ENJ 8-K
Entergy New Orleans, LLC (ENJ)
8-K
2025-10-03
For: 2025-10-01
View Original
Added on
April 11, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 1, 2025
Commission File Number | Registrant, State of Incorporation or Organization, Address of Principal Executive Offices, Telephone Number, and IRS Employer Identification No. | Commission File Number | Registrant, State of Incorporation or Organization, Address of Principal Executive Offices, Telephone Number, and IRS Employer Identification No. | |||||||||||
(a Telephone ( | (a Telephone ( | |||||||||||||
(a Telephone ( | (a Telephone ( | |||||||||||||
(a Telephone ( | (an Telephone ( | |||||||||||||
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
| Registrant | Title of Class | Trading Symbol | Name of Each Exchange on Which Registered | ||||||||
| Entergy Corporation | |||||||||||
| NYSE Texas | |||||||||||
| Entergy Arkansas, LLC | |||||||||||
| Entergy Louisiana, LLC | |||||||||||
| Entergy Mississippi, LLC | |||||||||||
| Entergy New Orleans, LLC | |||||||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement. (System Energy Resources, Inc.)
2025 Availability Agreement
The information set forth under Item 1.02 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01. The ensuing description of the 2025 Availability Agreement (defined below) does not purport to be complete and is qualified in its entirety by reference to the complete text of the 2025 Availability Agreement, which is filed as Exhibit 1.01 to this Current Report on Form 8-K and incorporated herein by reference. The ensuing description of the Assignments of 2025 Availability Agreement (defined below) does not purport to be complete and is qualified in its entirety by reference to the complete text of the First Assignment of Availability Agreement, Consent and Agreement, the Second Assignment of Availability Agreement, Consent and Agreement and the Third Assignment of Availability Agreement, Consent and Agreement which are filed as Exhibits 1.02 and 4.02, 1.03 and 4.03, and 1.04 and 4.04, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
In connection with the entry into the Assignments of 2025 Availability Agreement, System Energy Resources, Inc. (the “Company”), a wholly-owned subsidiary of Entergy Corporation, executed and delivered to the Mortgage Trustee and the MBFC Indenture Trustee (each defined below) an Officer’s Certificate establishing certain provisions under the Mortgage (defined below) relating to the 2025 Availability Agreement and the Assignments of 2025 Availability Agreement, the complete text of which is filed as Exhibit 4.01 to this Current Report on Form 8-K and is incorporated herein by reference.
Unit Power Sales Agreement Amendment
The Unit Power Sales Agreement, dated as of June 10, 1982, as amended and approved by the Federal Energy Regulatory Commission (the “FERC”), among the Company, and Entergy Arkansas, LLC, Entergy Louisiana, LLC, Entergy Mississippi, LLC and Entergy New Orleans, LLC (each a majority-owned, indirect subsidiary of Entergy Corporation and an “Affiliate Operating Company” and collectively, the “Affiliate Operating Companies”), allocates capacity, energy and related costs from the Company’s ownership and leasehold interests in Grand Gulf Nuclear Station (“Grand Gulf”) to the Affiliate Operating Companies (the “UPSA”). Effective October 1, 2025, the UPSA was amended to divest Entergy Louisiana, LLC’s share of such capacity, energy and related costs to Entergy Mississippi, LLC, such that Entergy Louisiana, LLC is no longer a party to the agreement (as so amended, the “2025 UPSA”). The FERC has approved such divestiture. Pursuant to the 2025 UPSA, the Company has agreed to make available to Entergy Arkansas, LLC, Entergy Mississippi, LLC and Entergy New Orleans, LLC (each a “2025 Affiliate Operating Company” and collectively, the “2025 Affiliate Operating Companies”) all of the capacity and energy available from the Company’s share of Grand Gulf. As of October 1, 2025, the allocation percentages under the 2025 UPSA are Entergy Arkansas, LLC (24.19%), Entergy Mississippi, LLC (56.38%) and Entergy New Orleans, LLC (19.43%). The complete text of the 2025 UPSA is filed as Exhibit 1.05 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 1.02 Termination of a Material Definitive Agreement. (System Energy Resources, Inc.)
Termination of Availability Agreement and Assignments of Availability Agreement
Effective as of October 1, 2025, the Company and the Affiliate Operating Companies, The Bank of New York Mellon (successor to United States Trust Company of New York), as trustee (the “Mortgage Trustee”) pursuant to the Company’s Mortgage and Deed of Trust, dated as of June 15, 1977, as amended, restated and supplemented by the Twenty-fourth Supplemental Indenture, dated as of September 1, 2012 (as so amended, restated and supplemented and as heretofore further supplemented, the “Mortgage”), and The Bank of New York Mellon, as trustee (“MBFC Indenture Trustee”) under the Trust Indenture dated as of June 1, 2021 (the “Trust Indenture”) with respect to $83,695,000 aggregate principal amount of the Mississippi Business Finance Corporation’s Revenue Refunding Bonds (System Energy Resources, Inc. Project) Series 2021 (the “MBFC Bonds”), terminated and discharged (i) the Availability Agreement,
dated as of June 21, 1974, as amended, among the Company and the Affiliate Operating Companies (the “Availability Agreement”); (ii) the Thirty-ninth Assignment of Availability Agreement, Consent and Agreement, dated as of June 15, 2021, among the Company, the MBFC Indenture Trustee, the Mortgage Trustee and the Affiliate Operating Companies (“Thirty-ninth Assignment of Availability Agreement”) securing the MBFC Bonds and the Company’s First Mortgage Bonds, MBFC Series due 2044 (the “Twenty-fourth Series Bonds”) issued under the Mortgage, including Officer’s Certificate No. 2-B-2 dated as of June 8, 2021 (“Officer’s Certificate No. 2-B-2”); (iii) the Forty-first Assignment of Availability Agreement, Consent and Agreement, dated as of March 14, 2023, among the Company, the Mortgage Trustee and the Affiliate Operating Companies (“Forty-first Assignment of Availability Agreement”) securing the Company’s First Mortgage Bonds, 6.00% Series due April 15, 2028 (the “Twenty-sixth Series Bonds”) issued under the Mortgage, including Officer’s Certificate No. 4-B-4, dated as of March 8, 2023 (“Officer’s Certificate No. 4-B-4”); and (iv) the Forty-second Assignment of Availability Agreement, Consent and Agreement, dated as of December 6, 2024, as supplemented by the Confirmation with Respect to Forty-second Assignment of Availability Agreement, Consent and Agreement, dated as of May 30, 2025, among the Company, the Mortgage Trustee and the Affiliate Operating Companies (“Forty-second Assignment of Availability Agreement” and together with the Thirty-ninth Assignment of Availability Agreement and the Forty-first Assignment of Availability Agreement, the “Assignments of Availability Agreement” and each, an “Assignment of Availability Agreement”) securing the Company’s First Mortgage Bonds, 5.30% Series due December 15, 2034 (the “Twenty-seventh Series Bonds” and together with the Twenty-fourth Series Bonds and the Twenty-sixth Series Bonds, the “Bonds”) issued under the Mortgage, including Officer’s Certificate No. 5-B-5, dated as of December 3, 2024 (“Officer’s Certificate No. 5-B-5”).
The Availability Agreement provided assurances that the Company had available adequate cash resources to cover its operating expenses and interest costs and permanent shutdown costs in the event of a shortfall of funds available to the Company from sales of power and energy under the UPSA. Such adequate cash resources were assured under the Availability Agreement by individually obligating the Affiliate Operating Companies to make payments or subordinated advances to the Company in accordance with stated percentages for each Affiliate Operating Company. Since commercial operation of Grand Gulf began, no payments under the Availability Agreement by the Affiliate Operating Companies have ever been required.
The Company, the Mortgage Trustee, the MBFC Indenture Trustee (in the case of the Thirty-ninth Assignment of Availability Agreement) and the Affiliate Operating Companies subsequently entered into each Assignment of Availability Agreement whereby the Company assigned its rights under the Availability Agreement as additional security for the respective series of Bonds and for the MBFC Bonds (in the case of the Thirty-ninth Assignment of Availability Agreement).
Pursuant to the terms of (i) Officer’s Certificate No. 2-B-2 and Section 4.13 of the Trust Indenture, each holder of the MBFC Bonds and the MBFC Indenture Trustee, as holder of the Twenty-fourth Series Bonds, has consented to the termination of the Availability Agreement and the Thirty-ninth Assignment of Availability Agreement without their further consent or action, subject to certain conditions; (ii) Officer’s Certificate No. 4-B-4, each holder of the Twenty-sixth Series Bonds has consented to the termination of the Availability Agreement and the Forty-first Assignment of Availability Agreement without their further consent or action, subject to certain conditions; and (iii) Officer’s Certificate No. 5-B-5, each holder of the Twenty-seventh Series Bonds has consented to the termination of the Availability Agreement and the Forty-second Assignment of Availability Agreement without their further consent or action, subject to certain conditions. All conditions have been satisfied. As a result of the termination of the Availability Agreement and the Assignments of Availability Agreement, neither the Bonds nor the MBFC Bonds is entitled to the security provided by the Availability Agreement and the respective Assignment of Availability Agreement.
Entry into 2025 Availability Agreement and Assignments of 2025 Availability Agreement
Immediately following the above-described termination of the Availability Agreement and the Assignments of Availability Agreement and effective as of October 1, 2025, the Company entered into a new availability agreement (the “2025 Availability Agreement”) between the Company and the 2025 Affiliate Operating Companies. The 2025 Availability Agreement provides assurances that the Company has available adequate cash resources to cover its operating expenses and interest costs and permanent shutdown costs in the event of a shortfall of funds available to the Company from sales of capacity and energy under the 2025 UPSA and from other sources. Such adequate cash resources are assured under the 2025 Availability Agreement by individually obligating the 2025 Affiliate Operating Companies to make payments or subordinated advances to the Company in accordance with the following allocation percentages – Entergy Arkansas, LLC (24.19%), Entergy Mississippi, LLC (56.38%) and Entergy New Orleans, LLC (19.43%). Pursuant to the terms of the 2025 Availability Agreement, so long as at least one 2025 Affiliate Operating Company remains a party to the 2025 Availability Agreement, any other 2025 Affiliate Operating Company may assign all or part of its rights and obligations thereunder to any other 2025 Affiliate Operating Company, and such assigning 2025 Affiliate Operating Company shall be discharged of its obligations under the 2025 Availability Agreement upon the assumption of such obligations by the remaining 2025 Affiliate Operating Company or Companies.
Immediately following the above-described entry into the 2025 Availability Agreement and effective as of October 1, 2025, to provide additional security for the respective series of Bonds, the Company, the 2025 Affiliate Operating Companies and the Mortgage Trustee executed three assignments of the 2025 Availability Agreement, one for the respective benefit of each of the Twenty-fourth Series Bonds (the “First Assignment of Availability Agreement, Consent and Agreement”), the Twenty-sixth Series Bonds (the “Second Assignment of Availability Agreement, Consent and Agreement”) and the Twenty-seventh Series Bonds (together with the First Assignment of Availability Agreement, Consent and Agreement and the Second Assignment of Availability Agreement, Consent and Agreement, the “Assignments of 2025 Availability Agreement”), with all such Assignments of 2025 Availability Agreement having been entered into concurrently. Pursuant to the terms of the Assignments of 2025 Availability Agreement, subject to the delivery of certain documents, any 2025 Affiliate Operating Company may assign to one or more other 2025 Affiliate Operating Companies its obligations and liabilities under the 2025 Availability Agreement and the Assignments of 2025 Availability Agreement.
Item 8.01. Other Events. (Entergy Corporation, Entergy Arkansas, LLC, Entergy Louisiana, LLC, Entergy Mississippi, LLC and Entergy New Orleans, LLC)
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 8.01 with respect to Entergy Corporation, Entergy Arkansas, LLC, Entergy Mississippi, LLC and Entergy New Orleans, LLC. The information set forth under Item 1.02 of this Current Report on Form 8-K is incorporated by reference into this Item 8.01 with respect to Entergy Corporation, Entergy Arkansas, LLC, Entergy Louisiana, LLC (solely that information appearing under the heading “Termination of Availability Agreement and Assignments of Availability Agreement”), Entergy Mississippi, LLC and Entergy New Orleans, LLC.
Item 9.01. Financial Statements and Exhibits (System Energy Resources, Inc.)
(d) Exhibits.
| Exhibit No. | Description of Exhibit | ||||
| 1.01 | |||||
| 1.02 | |||||
| 1.03 | |||||
| 1.04 | |||||
| 1.05 | |||||
| 4.01 | |||||
| 4.02 | |||||
| 4.03 | |||||
| 4.04 | |||||
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. | ||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Entergy Corporation Entergy Arkansas, LLC Entergy Louisiana, LLC Entergy Mississippi, LLC Entergy New Orleans, LLC System Energy Resources, Inc. | |||||
By: /s/ Barrett E. Green | |||||
| Barrett E. Green Vice President and Treasurer | |||||
| Dated: October 3, 2025 | |||||
Exhibit 1.01
AVAILABILITY AGREEMENT
BETWEEN
SYSTEM ENERGY RESOURCES, INC.
AND
ENTERGY ARKANSAS, LLC,
ENTERGY MISSISSIPPI, LLC, AND
ENTERGY MISSISSIPPI, LLC, AND
ENTERGY NEW ORLEANS, LLC
THIS AGREEMENT, dated as of the 1st day of October, 2025, between SYSTEM ENERGY RESOURCES, INC. (“SERI”) and ENTERGY ARKANSAS, LLC (“EAL”), ENTERGY MISSISSIPPI, LLC (“EML”) and ENTERGY NEW ORLEANS, LLC (“ENOL”), WITNESSETH THAT:
WHEREAS, EAL, EML and ENOL, each of which is a wholly-owned subsidiary of Entergy Utility Holding Company, LLC, all of whose common membership interests are held by Entergy Corporation (“Entergy”), operate electric generating, transmission and distribution facilities in the states of Arkansas and Mississippi, and in the City of New Orleans, Louisiana, respectively; and
WHEREAS, EAL, EML and ENOL are parties to a Unit Power Sales Agreement dated as of June 10, 1982, as amended effective October 1, 2025 (the “UPSA”), relating to the sale of Power from SERI’s share of Unit No. 1 of the Grand Gulf Nuclear Station, a nuclear-fueled electric generating plant with a total megawatt capability of approximately 1,400 megawatts located near Port Gibson, Mississippi (“Grand Gulf”); and
WHEREAS, under the terms of the UPSA, SERI makes available to EAL, EML and ENOL all of the Power (as defined below) available to SERI at Grand Gulf; and
WHEREAS, the Parties desire to support the continued operation of Grand Gulf;
Now, THEREFORE, in consideration of the terms and conditions hereinafter set forth, the parties hereto agree with each other as follows:
1. For the purposes of this Agreement, the following definitions shall apply:
(a) “Abandoned” shall mean the good faith decision by SERI to abandon any material portion of Grand Gulf as evidenced by a resolution of the Board of Directors of SERI followed by a cessation of all operations (other than preservative maintenance) of such material portion for a period of ninety (90) days certified to in a certificate signed by the President or a Vice President and the Treasurer or an Assistant Treasurer of SERI.
(b) Party or Parties shall mean any entity or entities (other than SERI) now or hereafter a party or parties to this Agreement.
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(c) Power shall mean both the capacity and energy available to SERI at Grand Gulf.
2. SERI and the Parties hereby designate Grand Gulf as being subject to this Agreement.
3. Sales of Power to the Parties are made pursuant to the UPSA. SERI shall, subject to the provisions of this Agreement and the UPSA (or any agreement substituted therefor), make available, or cause to be made available, to the Parties all Power available to SERI from time to time from Grand Gulf.
4. The Parties shall, subject to the provisions of the then applicable requirements of Section 7 of this Agreement, Section 12 of this Agreement and the UPSA (or any agreement substituted therefor), be entitled to receive all Power available to SERI from time to time at Grand Gulf; provided, that (i) should any Party terminate its participation in the UPSA (or any agreement substituted therefor), then it is agreed that SERI, such Party and the other Parties shall enter into a separate agreement whereby such Party shall continue to be entitled to receive Power, and obligated to take Power, available to SERI at Grand Gulf at the time such Party shall exercise its right to terminate such participation, in such amounts and for such consideration calculated from time to time as if such Party had remained a party to the UPSA (or such agreement substituted therefor), and (ii) should the UPSA (or any agreement substituted therefor) be cancelled or terminated, then it is agreed that SERI and all such Parties shall enter into a separate agreement whereby such Parties shall continue to be entitled to receive Power, and obligated to take Power, available to SERI at Grand Gulf at the time of cancellation or termination of the UPSA (or any agreement substituted therefor), in such amounts and for such consideration calculated from time to time as if the UPSA (or such agreement substituted therefor) had remained in effect and SERI and such Parties were parties thereto. Notwithstanding such withdrawal from, or cancellation or termination of, the UPSA (or any agreement substituted therefor), each Party shall remain bound by the terms of this Agreement. The responsibilities pursuant to this Agreement will be allocated according to the following percentages:
EAL 24.19%
EML 56.38%
ENOL 19.43%
The percentage applicable to any Party is hereinafter called its “Allocable Share.” No transfer or assignment of rights and obligations under the UPSA (or any agreement substituted therefor) shall affect the respective Allocable Shares. In consideration of SERI’s obligations hereunder and of the right of the Parties to receive Power available to SERI at Grand Gulf under the terms of the UPSA (or any agreement substituted therefor), the Parties agree to pay to SERI such amounts from time to time as, when added to amounts received by SERI from any other source, including, but not limited to, amounts (if any) received by SERI with respect to Grand Gulf under the terms of the UPSA (or any agreement substituted therefor), shall be at least equal to SERI’s total operating expenses and interest charges with respect to Grand Gulf, including (without limitation), for the purposes of this Agreement, (i) all operating and maintenance
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expenses included in Accounts 500 to 935.3, with the exception of the portion of Grand Gulf’s sale-leaseback expense included in Account 931; deductions, charges and other items properly chargeable to the applicable Income Accounts 403 to 435 and 450 to 457.2, inclusive, of the Uniform System of Accounts prescribed by the Federal Energy Regulatory Commission for Major Public Utilities and Licensees, as in effect on October 1, 2025 (Uniform System of Accounts) or the equivalent accounts, if the Uniform System of Accounts is amended after that time, or, if Grand Gulf is not in service for any reason, all expenses, deductions, charges and other items which would be chargeable to the above Accounts if Grand Gulf were in service; and (ii) such expenses as might be incurred in connection with permanent shutdown of Grand Gulf and, in the event of any such shutdown, for perpetual maintenance and surveillance of any such facility in accordance with, and as required by, all applicable regulations established by any governmental authority having jurisdiction. Payments of all such expenses, deductions, charges, and other items to be made pursuant to this Section 4 shall be made monthly and shall be apportioned severally and not jointly among the Parties, in accordance with the Allocable Share of each Party. Payments made by any Party to SERI pursuant to this Section 4 with respect to Grand Gulf shall be applied as a credit to such Party’s liability for payments to SERI under the UPSA (or any agreement substituted therefor).
Any portion of Grand Gulf that is Abandoned shall no longer be subject to this Agreement except that Sections 4 and 5 hereof shall remain applicable to SERI’s investment in Grand Gulf.
5. For the purpose of determining SERI’s expenses and the Parties’ obligations under Section 4 of this Agreement with respect to Grand Gulf, it is hereby agreed that accrual of depreciation and amortization shall be at the FERC-approved rate per annum of the aggregate amount properly chargeable (prior to the deduction therefrom of any depreciation and amortization) at the time with respect to Grand Gulf to Balance Sheet Accounts 101, 102, 103, 104, 105, 106 (the aforementioned accounts being exclusive of land and land rights), 118, and 121, of the Uniform System of Accounts and such other accounts as are properly subject to depreciation or amortization at the time pursuant to such Uniform System of Accounts.
6. The performance of the obligations of SERI hereunder shall be subject to the receipt and continued effectiveness of all authorizations of governmental regulatory authorities at the time necessary to permit SERI to perform its duties and obligations hereunder, including the receipt and continued effectiveness of all authorizations by governmental regulatory authorities at the time necessary to permit SERI to finance, to construct or cause to be constructed, to operate or cause to be operated, and/or to make available to the Parties the Power available at Grand Gulf. SERI shall use commercially reasonable efforts to secure and maintain all such authorizations by governmental regulatory authorities.
7. The performance by each Party of its obligations hereunder shall be subject to the receipt and continued effectiveness of all authorizations of governmental regulatory authorities necessary at the time to permit it to perform its duties and obligations hereunder, including the receipt and continued effectiveness of all authorizations by governmental regulatory authorities necessary at the time to permit it to pay to SERI, in consideration for the right to receive its share
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of the Power available at Grand Gulf under the UPSA, the amounts provided for in Section 4 of this Agreement. Each Party shall use commercially reasonable efforts to secure and maintain all such authorizations by governmental regulatory authorities. Each Party shall, to the extent permitted by law, be obligated to perform its duties and obligations hereunder, subject to the then applicable provisions of this Section 7, (i) whether or not SERI shall have received all authorizations of governmental regulatory authorities necessary to permit SERI to perform its duties and obligations hereunder, (ii) whether or not such authorizations, or any such authorization, shall at any time in question be in effect, and (iii) so long as SERI and such Party shall continue to be “subsidiary companies” (as said term is defined in Section 1262 of the Public Utility Holding Company Act of 2005) of Entergy or a successor thereto, whether or not, at any time in question, SERI shall have performed its duties and obligations under this Agreement or the UPSA. In the event that SERI or any Party shall cease to be such a subsidiary company, then and thereafter such Party shall not be relieved of its obligation to make payments pursuant to Section 4 of this Agreement by reason of the failure of SERI to perform its duties and obligations hereunder or under the UPSA occasioned by act of God, fire, flood, explosion, strike, civil or military authority, insurrection, riot, act of the elements, failure of equipment, or for any other cause beyond the control of SERI.
8. To the extent they may legally do so, each Party and SERI hereby irrevocably waive 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 it for specific performance of this Agreement by any other party to this Agreement, or by a trustee under any mortgage or other debt instrument which any such party to this Agreement may, subject to requisite regulatory authority, enter into, or by any receiver or trustee appointed for any such party under the bankruptcy or insolvency laws of any jurisdiction to which any such party may be subject; provided, however, that nothing herein contained shall be deemed to constitute a representation or warranty by any party to this Agreement that their respective obligations under this Agreement are, as a matter of law, subject to the equitable remedy of specific performance.
9. No Party shall be entitled to set off against any payment required to be made by such Party under this Agreement (i) any amounts owed by SERI to such Party or (ii) the amount of any claim by such Party against SERI. The foregoing, however, shall not affect in any other way the rights and remedies of any Party with respect to any such amounts owned to such Party by SERI or any such claim by such Party against SERI.
10. The invalidity or unenforceability of any provisions of this Agreement shall not affect the remaining provisions hereof.
11. This Agreement shall become effective forthwith. This Agreement may be amended, modified or terminated only with the consent of SERI and of the Parties then having responsibility for two-thirds or more of the amounts to be paid under Section 4 hereof, and upon the receipt and continued effectiveness of all authorizations of governmental regulatory authorities at the time necessary.
12. This agreement shall be binding upon the parties and SERI and their respective successors and assigns, but no assignment hereof, or of any right to any funds due or to become
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due under this Agreement, shall in any event relieve any Party or SERI of any of their respective obligations hereunder, or in the case of the Parties, reduce to any extent their entitlement under the UPSA to receive Power available from time to time at Grand Gulf; provided, however, that so long as at least one Party remains a party hereto, any Party may assign all or part of its rights and obligations hereunder to any other Party hereto and, notwithstanding any other provision of this Agreement, such assigning Party shall be discharged of its obligations hereunder upon the assumption of such obligations by the remaining Party or Parties.
13. The agreements herein set forth have been made for the benefit of the Parties, SERI and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement.
14. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunder duly authorized as of the day and year first above written.
ENTERGY ARKANSAS, LLC By: /s/ Laura R. Landreaux Name: Laura R. Landreaux Title: President | ||||||||
ENTERGY MISSISSIPPI, LLC By: /s/ Haley R. Fisackerly Name: Haley R. Fisackerly Title: President | ||||||||
ENTERGY NEW ORLEANS, LLC By: /s/ Deanna D. Rodriguez Name: Deanna D. Rodriguez Title: President | ||||||||
SYSTEM ENERGY RESOURCES, INC. By: /s/ Kimberly A. Fontan Name: Kimberly A. Fontan Title: President | ||||||||
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Exhibit 1.02
FIRST ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND AGREEMENT
This First Assignment of Availability Agreement, Consent and Agreement (hereinafter referred to as this “Assignment”), dated October 1, 2025, is made by and among System Energy Resources, Inc. (the “Company”), Entergy Arkansas, LLC, (“Entergy Arkansas”), Entergy Mississippi, LLC (“Entergy Mississippi”), and Entergy New Orleans, LLC (“Entergy New Orleans”) (hereinafter Entergy Arkansas, Entergy Mississippi and Entergy New Orleans are called individually an “Affiliate Operating Company” and collectively, the “Affiliate Operating Companies”) and The Bank of New York Mellon (successor to United States Trust Company of New York), as trustee (the “Trustee”) under the below-referenced Restated Mortgage.
WHEREAS:
A. Entergy Corporation (successor to Middle South Utilities, Inc.) (“Entergy”) owns, either directly or indirectly, all of the outstanding common securities of the Company and each of the Affiliate Operating Companies, and the Company has a 90% undivided ownership and leasehold interest in Unit No. 1 of the Grand Gulf Nuclear Station project (“Grand Gulf”).
B. Prior hereto, the Company and the Affiliate Operating Companies entered into an Availability Agreement dated as of October 1, 2025 (the “Availability Agreement”), providing that the Affiliate Operating Companies would pay the Company monthly amounts that (when added to any amounts received by the Company under the Unit Power Sales Agreement dated as of June 10, 1982, as amended effective October 1, 2025, among the Company and the Affiliate Operating Companies) would at least equal the Company’s total operating expenses for Grand Gulf (including depreciation at a specified rate and expenses incurred in a permanent shutdown of Grand Gulf) and interest charges.
C. Also prior hereto, the Company entered into the Mortgage and Deed of Trust dated as of June 15, 1977, between the Company and the Trustee, as amended, restated and supplemented by a Twenty-fourth Supplemental Indenture dated as of September 1, 2012 (the “Twenty-fourth Supplemental Indenture”) (said Mortgage and Deed of Trust, as so amended, restated and supplemented by the Twenty-fourth Supplemental Indenture, the “Original Restated Mortgage”), and as further supplemented by Officer’s Certificate No. 2-B-2 dated as of June 8, 2021 (“Officer’s Certificate No. 2-B-2”), Officer’s Certificate No. 4-B-4 dated as of March 8, 2023 (“Officer’s Certificate No. 4-B-4”) and Officer’s Certificate No. 5-B-5 dated as of December 3, 2024 (“Officer’s Certificate No. 5-B-5”), and as the same may from time to time hereafter be amended and supplemented in accordance with its terms, hereinafter referred to as the “Restated Mortgage”).
D. Also prior hereto, the Company issued (i) $85,103,000 aggregate principal amount of its First Mortgage Bonds, MBFC Series due 2044 (the “Twenty-fourth Series Bonds”) issued under and secured pursuant to the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 2-B-2, as collateral for $83,695,000 aggregate principal amount of the Mississippi Business Finance Corporation’s Revenue Refunding Bonds (System
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Energy Resources, Inc. Project) Series 2021 issued under the Trust Indenture dated as of June 1, 2021 with The Bank of New York Mellon, as trustee (the “MBFC Indenture Trustee”), (ii) $325,000,000 aggregate principal amount of its First Mortgage Bonds, 6.00% Series due April 15, 2028 (together with any additional Twenty-sixth Series Bonds as described in paragraph E below, the “Twenty-sixth Series Bonds”) under and secured pursuant to the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 4-B-4, and (iii) $540,000,000 aggregate principal amount of its First Mortgage Bonds, 5.30% Series due December 15, 2034 (together with any additional Twenty-seventh Series Bonds as described in paragraph E below, the “Twenty-seventh Series Bonds”), under and secured pursuant to the Original Restated Mortgage as supplemented by Officer’s Certificate No. 5-B-5.
E. Pursuant to the Restated Mortgage and Officer’s Certificate No. 4-B-4, the Company may issue additional Twenty-sixth Series Bonds, without limitation as to amount, having substantially the same terms as the Twenty-sixth Series Bonds then Outstanding (as defined in the Restated Mortgage) (except for the issue date, the price to public and, if applicable, the initial interest payment date) without notice to or the consent of the existing holders of the Twenty-sixth Series Bonds; and pursuant to the Restated Mortgage and Officer’s Certificate No. 5-B-5, the Company may issue additional Twenty-seventh Series Bonds, without limitation as to amount, having substantially the same terms as the Twenty-seventh Series Bonds then Outstanding (as defined in the Restated Mortgage) (except for the issue date, the price to public and, if applicable, the initial interest payment date) without notice to or the consent of the existing holders of the Twenty-seventh Series Bonds.
F. The Company wishes concurrently to (i) provide for the assignment by the Company to the Trustee, for the benefit of the holders of the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds, in each case, of certain of the Company’s rights under the Availability Agreement, (ii) create enforceable rights in the Trustee pursuant to substantially similar assignments, each to be effective concurrently as of October 1, 2025, and (iii) create enforceable rights relating thereto through execution and delivery of an Officer’s Certificate dated as of the date hereof Establishing Additional Events of Default and Provisions pursuant to Sections 101, 104, 1303 and 1307 of the Restated Mortgage.
G. The Affiliate Operating Companies are willing to, and by this instrument do, supplement their undertakings under the Availability Agreement in the manner described herein.
H. All things necessary to make this Assignment 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 or limited liability company and member, as applicable, 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:
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ARTICLE I.
Security Assignment and Agreement
1.1 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 Twenty-fourth Series Bonds (whether at maturity, pursuant to mandatory or optional prepayment, by acceleration or otherwise), and (ii) the due and punctual payment of all fees and costs, expenses and other amounts that may become payable by the Company under the Restated Mortgage and that are a charge on the trust estate thereunder, which is superior to the charge thereon for the benefit of the Twenty-fourth Series Bonds, together in each case, with all costs of collection thereof (all such amounts referred to in the foregoing clauses (i) and (ii) being hereinafter collectively referred to as “Obligations Secured Hereby”), the Company hereby assigns to the Trustee, and creates a security interest in favor of the Trustee, for the benefit of the holders of the Twenty-fourth Series Bonds, in all of the Company’s rights to receive all moneys paid or to be paid to the Company pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof, but only to the extent that such payments or advances are attributable to payments or advances with respect to Grand Gulf, and all other claims, rights (but not obligations or duties), powers, privileges, interests and remedies of the Company, whether arising under the Availability Agreement or this Assignment or by statute or in law or in equity or otherwise, resulting from any failure by any Affiliate Operating Company to perform its obligations under the Availability Agreement or this Assignment, but only to the extent that such claims, rights, powers, privileges, interests and remedies relate to Grand Gulf, all to the extent, but only to the extent, required for the payment when due and payable of Obligations Secured Hereby, together in each case with full power and authority, in the name of the Trustee or the Company as assignor, or otherwise, to demand payment of, enforce, collect, receive and accept receipt for any and all of the foregoing (the rights, claims, powers, privileges, interests and remedies referred to above being hereinafter sometimes called the “Collateral”).
1.2 Other Agreements.
(a) The Company has not and will not assign the rights assigned in Section 1.1 as security for any indebtedness other than the Obligations Secured Hereby, except as recited and provided in paragraph (b) of this Section 1.2.
(b) The Company is concurrently securing its Indebtedness for Borrowed Money (as defined below) represented by the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds pursuant to the First Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“First Assignment”), the Second Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“Second Assignment”), and the Third Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“Third Assignment”), respectively, 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 Grand Gulf (including, without limitation,
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Indebtedness for Borrowed Money outstanding under the Restated Mortgage) or to refund (including any successive refundings) any such Indebtedness for Borrowed Money (including such Indebtedness for Borrowed Money now outstanding) issued for such purpose, the incurrence of which Indebtedness for Borrowed Money is at the time permitted by the Restated Mortgage (herein, together with such Indebtedness for Borrowed Money now outstanding, called “Additional Indebtedness”), by entering into an assignment of availability agreement, consent and agreement including, without limitation, the Second Assignment and the Third Assignment (each being hereinafter called an “Additional Assignment”), with the holders of such Additional Indebtedness or representatives of or trustees for such holders, or both, as the case may be (herein called an “Additional Assignee”). Each Additional Assignment hereafter entered into shall be substantially in the form of this Assignment, except that there shall be substituted in such Additional Assignment appropriate references to the Additional Indebtedness secured thereby, the applicable Additional Assignee and the agreement or instrument under which such Additional Indebtedness is issued in lieu of the references herein to the Twenty-fourth Series Bonds, the Trustee and the Restated Mortgage, respectively, and such Additional Assignment may contain such other provisions as are not inconsistent with this Assignment and do not adversely affect the rights hereunder of the holders of the Twenty-fourth Series Bonds or the Trustee.
(c) Notwithstanding any provision of this Assignment to the contrary, or any priority in time of creation, attachment or perfection of a security interest, pledge or lien by the Trustee, or any provision of or filing or recording under the Uniform Commercial Code or any other applicable law of any jurisdiction, the Trustee agrees that the claims of the Trustee hereunder with respect to the Trustee and any security interest, pledge or lien in favor of the Trustee now or hereafter existing in and to the Collateral shall rank pari passu with the claims of each Additional Assignee under the corresponding provisions of the Additional Assignment to which it is a party with respect to the Availability Agreement and any security interest, pledge or lien in favor of such Additional Assignee under such Additional Assignment now or hereafter existing in and to the Collateral, irrespective of the time or times at which prior, concurrent or subsequent Additional Assignments are entered into in accordance with Section 1.2(b) hereof.
1.3 Payments to the Trustee. The Company agrees that, if and whenever it shall make a demand to an Affiliate Operating Company for any payment pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf, it will separately identify the respective portions of such payment or advance, 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 such Affiliate Operating Company (subject to the provisions of Section 1.4 hereof) to pay or cause to be paid the amount so identified as required for the payment of Obligations Secured Hereby directly to the Trustee. Any payments made by any Affiliate Operating Company pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall, to the extent necessary to satisfy in full the assignment set forth in Section 1.1 of this Assignment and the corresponding assignments set forth in the Additional Assignments, be made pro rata in proportion to the respective amounts secured by, and then due and owing under, such assignments.
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1.4 Payments to the Company. Notwithstanding the provisions of Sections 1.1 and 1.3, unless and until the Trustee shall have given written notice to the Affiliate Operating Companies of the occurrence and continuance of any Event of Default (as defined in the Restated Mortgage), all moneys paid or to be paid to the Company pursuant to Section 4 of the Availability Agreement or advanced pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall be paid or advanced directly to the Company, and the Company need not separately identify the respective portions of payments or advances as provided in Section 1.3 hereof; provided that notice as to the amount of any such payments or advances shall be given by the Company to the Trustee simultaneously with the demand by the Company for any such payments or advances. If the Trustee shall have duly notified the Affiliate Operating Companies of the occurrence of any such Event of Default, such payments or advances shall be made in the manner and in the amounts specified in Section 1.3 hereof until the Trustee shall by further notice to the Affiliate Operating Companies give permission that all such payments or advances 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 1.4. The Trustee shall give such permission if no such Event of Default continues to exist.
1.5 Definitions. For the purposes of this Assignment, the following terms shall have the following meanings:
(a) 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 on the Company’s behalf 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 Grand Gulf; and
(b) 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 1.1 hereof) to the extent and in the manner set forth below:
(i) if there shall occur an Event of Default (as defined in the Restated Mortgage), then so long as such Event of Default shall be continuing and shall not have been cured or waived, or unless and until all the Obligations Secured Hereby shall have been paid in full in money or money’s worth at the time of receipt, no payment of principal, 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 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.
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ARTICLE II.
Consent to Assignment by the Affiliate Operating
Companies and Other Agreements
2.1 Consent to Assignment by the Affiliate Operating Companies.
(a) Each Affiliate Operating Company hereby consents to the assignment under Article I and agrees with the Trustee to make payments or advances to the Trustee in the amounts and in the manner specified in Section 1.3 at the Trustee’s address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the Availability Agreement and Section 2.2(g) hereof, each Affiliate Operating Company agrees that all payments or advances made to the Trustee or to the Company as contemplated by Sections 1.3 and 1.4 hereof shall be final as between such Affiliate Operating Company and the Trustee or the Company, as the case may be, and that it will not seek to recover from the Trustee for any reason whatsoever any moneys paid or advanced to the Trustee by virtue of this Assignment, but the finality of any such payment or advance shall not prevent the recovery of any overpayments or mistaken payments or excess advances or mistaken advances that may be made by such Affiliate Operating Company unless an Event of Default under the Restated Mortgage has occurred and is continuing, in which case any such overpayment or mistaken payment or excess advances or mistaken advances shall not be recoverable but shall constitute Subordinated Indebtedness of the Company to such Affiliate Operating Company.
2.2 Other Agreements. Anything in the Availability Agreement to the contrary notwithstanding, it is hereby agreed as follows:
(a) Regardless of whether any person or persons (other than the Affiliate Operating Companies) shall become a Party or Parties (as such terms are defined in the Availability Agreement) to the Availability Agreement, the Affiliate Operating Companies shall at all times be obligated to make the payments required pursuant to Section 4 of the Availability Agreement and to make advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf to the same extent as if the Affiliate Operating Companies were the only Parties to the Availability Agreement, except to the extent and only to the extent that such payments or advances are actually made by such person or persons. In the event that any such person shall become a Party to the Availability Agreement, the Company and the Affiliate Operating Companies shall cause such person, at the time when such person becomes a Party to the Availability Agreement, to consent by written instrument to the terms and provisions of this Assignment, and thereupon such person shall be bound by all of the terms and provisions of this Assignment (other than the provisions of the preceding sentence) to the same extent as if named an Affiliate Operating Company herein. A copy of such written instrument, in form and substance satisfactory to the Trustee, shall promptly be delivered to the Trustee together with an opinion of counsel to the effect that such instrument complies with the requirements hereof and constitutes a valid, legally binding obligation of such person.
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(b) In the event and to the extent that any action by any governmental regulatory authority, including, without limitation, the Federal Energy Regulatory Commission or any successor thereto, shall have the effect of prohibiting the Affiliate Operating Companies from making any payments that would otherwise be required pursuant to Section 4 of the Availability Agreement (as supplemented hereby) with respect to Grand Gulf, the Affiliate Operating Companies shall make advances to the Company at the same time, and in the same amounts as such prohibited payments and all such advances shall constitute Subordinated Indebtedness of the Company.
(c) Each Affiliate Operating Company agrees that (i) all Indebtedness for Borrowed Money of the Company to such Affiliate Operating Company and all amounts paid by such Affiliate Operating Company pursuant to Section 4 of the Availability Agreement or advanced pursuant to Section 2.2(b) hereof shall constitute Subordinated Indebtedness of the Company 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 such Affiliate Operating Company by way of merger, consolidation or the acquisition by such person of all or substantially all of such Affiliate Operating Company’s assets). The Company agrees that it shall duly record all Subordinated Indebtedness of the Company as such on its books.
(d) No authorization by any governmental regulatory authority being required other than, with respect to the payments pursuant to the provisions of Section 4 of the Availability Agreement, appropriate orders, or the taking of other action, by the Federal Energy Regulatory Commission or any successor thereto as to specific terms and provisions pursuant to which the Affiliate Operating Companies shall agree to pay the Company, each Affiliate Operating Company agrees that its duty to make the payments to the Company pursuant to the provisions of Section 4 of the Availability Agreement and the advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall be absolute and unconditional, (a) whether or not such Affiliate Operating Company shall have received all authorizations of governmental regulatory authorities necessary at the time to permit such Affiliate Operating Company to perform its other duties and obligations hereunder or under the Availability Agreement, (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 or under the Availability Agreement, (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 hereunder or under the Availability Agreement, (e) whether or not Grand Gulf shall be maintained in commercial operation, energy from Grand Gulf is being produced or delivered or is available (including, without limitation, delivery or availability to such Affiliate Operating Company), an abandonment of Grand Gulf shall have occurred or Grand Gulf shall be in whole or in part destroyed or taken, for any reason whatsoever, (f) whether or not the Company shall be solvent, (g) whether or not the Company or such Affiliate Operating Company shall continue to be subsidiary companies of Entergy, (h) whether or not, at any time in question, any event of force majeure has occurred, and (i) whether or not, at any time in question, any other circumstance, happening, condition or event whatsoever, whether or not similar to any of the foregoing, has arisen, occurred or presented itself.
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(e) In the event that Entergy shall cease to own directly or indirectly a majority of the common securities of any Affiliate Operating Company, the obligations of such Affiliate Operating Company hereunder and under the Availability Agreement shall not be increased by an amendment to or modification of the terms and provisions of the Restated Mortgage, including Officer’s Certificate No. 2-B-2 or the Twenty-fourth Series Bonds, unless such Affiliate Operating Company shall have consented in writing to such amendment or modification.
(f) The obligations of each Affiliate Operating Company under Section 4 of the Availability Agreement and Section 2.2(b) hereof to make the payments or advances specified therein or herein with respect to Grand Gulf 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 such Affiliate Operating Company or any claim by such Affiliate Operating Company against the Company, whether or not arising hereunder or under the Availability Agreement and whether or not arising out of any action or nonaction on the part of the Company or the Trustee, including any disposition of Grand Gulf or any part thereof pursuant to the Restated Mortgage, requirements of governmental authorities, actions of judicial receivers or trustees or otherwise and whether or not arising from willful or negligent acts or omissions). The foregoing, however, shall not, subject to the provisions of paragraph (c) of this Section 2.2, affect in any other way any rights and remedies of such Affiliate Operating Company with respect to any amounts owed to such Affiliate Operating Company by the Company or any such claim by such Affiliate Operating Company against the Company. The obligations and liabilities of each Affiliate Operating Company hereunder or under the Availability Agreement 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 such Affiliate Operating Company, whether or not the Company or such Affiliate Operating Company shall have had any notice or knowledge of any of the foregoing. Neither failure nor delay by the Company or the Trustee, or any holder, or representative of any holder of the Twenty-fourth Series Bonds 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. Each Affiliate Operating Company 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 that may be asserted as a bar to the remedy of specific performance in any action brought against such Affiliate Operating Company for specific performance of this Assignment or the Availability Agreement by the Company, by the Trustee, by the holders of the Twenty-fourth Series Bonds, 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 2.2(f) to the contrary notwithstanding, no Affiliate Operating Company shall be precluded from asserting as a defense against any claim made against such Affiliate Operating Company upon any of its
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obligations hereunder and under the Availability Agreement that it has fully performed such obligations in accordance with the terms of this Assignment and the Availability Agreement.
(g) Each Affiliate Operating Company shall, subject to the provisions of Section 2.2(c) hereof, be proportionately subrogated to all rights of the Trustee and the holders of the Twenty-fourth Series Bonds against the Company in respect of any amounts paid or advanced by such Affiliate Operating Company pursuant to the provisions of this Assignment and the Availability Agreement and applied to the payment of the Obligations Secured Hereby. Subject to the provisions of Article VII hereof, the Trustee agrees that it will not deal with the Company, or any security for the Twenty-fourth Series Bonds in such a manner as to prejudice such rights of any Affiliate Operating Company.
ARTICLE III.
Term
This Assignment 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; provided that this Assignment shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations Secured Hereby is rescinded or must otherwise be returned by the Trustee upon the insolvency, bankruptcy or reorganization of the Company, any Affiliate Operating Company or otherwise, all as though such payment had not been made. It is agreed that all the covenants and undertakings on the part of the Affiliate Operating Companies and the Company set forth in this Assignment are exclusively for the benefit of, and may be enforced only by, the Trustee or the holders of the Twenty-fourth Series Bonds, as provided in the Restated Mortgage, 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 Assignment nor the Availability Agreement nor any interest herein or therein may be assigned, transferred or encumbered by any of the parties hereto or thereto, except transfer or assignment by the Trustee to its successors in accordance with Article Ten of the Restated Mortgage, except as otherwise provided in Article I hereof and except that
(i) in the event that any Affiliate Operating 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 Assignment and the Availability Agreement shall be transferred by such Affiliate Operating 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 succeeding corporation or other person shall be substituted for such Affiliate Operating Company and shall deliver to the Company and the Trustee a written assumption, in form and
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substance satisfactory to the Trustee, of such Affiliate Operating Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such corporation or other person;
(ii) any Affiliate Operating Company may assign to one or more other Affiliate Operating Companies its obligations and liabilities under the Availability Agreement and this Assignment; provided that such Affiliate Operating Company or Companies shall assume and succeed to such obligations and liabilities under the Availability Agreement and this Assignment, be substituted for such assigning Affiliate Operating Company and such assuming Affiliate Operating Company or Companies shall deliver to the Company and the Trustee a written assumption, in form and substance satisfactory to the Trustee, of such assigning Affiliate Operating Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such assuming Affiliate Operating Company or Companies; and
(iii) 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 Assignment and the Availability 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 succeeding corporation or other person shall be substituted for the Company and shall deliver to the Trustee a written assumption, in form and substance satisfactory to the Trustee, of the Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such corporation or other person.
ARTICLE V.
Amendments
5.1 Restrictions on Amendments. Neither this Assignment nor the Availability Agreement may be amended, waived, modified, discharged or otherwise changed orally. This Assignment and the Availability Agreement may be amended, waived, modified, discharged or otherwise changed only by a written instrument that has been signed by all the parties hereto, in the case of this Assignment, or by the persons specified in Section 11 of the Availability Agreement, in the case of the Availability Agreement, and that has been approved by the holders of more than 50% in principal amount of the Twenty-fourth Series Bonds Outstanding (as defined in the Restated Mortgage) at the time of such consent (provided, however, that as the holder of the Twenty-fourth Series Bonds, the MBFC Indenture Trustee shall act in accordance with what the Trustee reports to the MBFC Indenture Trustee as the vote or consent of the holders of the majority of the other first mortgage bonds then outstanding under the Restated Mortgage) or that does not materially adversely affect the rights of the Trustee or the holders of
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the Twenty-fourth Series Bonds or that is necessary in order to qualify the Restated Mortgage under the Trust Indenture Act of 1939, as contemplated by Sections 1301 and 1302 of the Restated Mortgage; provided, however, that (i) without the written consent of the holders of all the Twenty-fourth Series Bonds affected thereby, no amendment, waiver, modification, discharge or other change in or to this Assignment or the Availability Agreement shall be made that shall change the terms of this Section 5.1 and (ii) no such amendment, waiver, modification, discharge or other change shall be made that shall modify, without the written consent of the Trustee, the rights, duties or immunities or the Trustee.
5.2 The Trustee’s Execution. The Trustee shall, at the written request of the Company, execute any instrument amending, waiving, modifying, discharging or otherwise changing this Assignment, or any consent to the execution of any instrument amending, waiving, modifying, discharging or otherwise changing the Availability Agreement (a) as to which the Trustee shall have received an opinion of counsel to the effect that such instrument has been duly authorized by each person executing the same and is permitted by the provisions of Section 5.1 hereof and that this Assignment, or the Availability Agreement, as the case may be, as amended, waived, modified, discharged or otherwise changed by such instrument, constitutes valid, legally binding and enforceable obligations of the Company and each of the Affiliate Operating Companies, and (b) that shall have been executed by the Company and each of the Affiliate Operating Companies. The Trustee shall be fully protected in relying upon the aforesaid opinion.
ARTICLE VI.
Notices
6.1 Notices, etc., in Writing. All notices, consents, requests and other documents authorized or permitted to be given pursuant to this Assignment 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, addressed as follows:
If to System Energy Resources, Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Arkansas, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
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If to Entergy Mississippi, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy New Orleans, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to the Trustee, to:
The Bank of New York Mellon
c/o The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Barbara Zsombori, Vice President
with copies to each other party.
6.2 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 6.1 hereof, on the third day after the day of mailing. 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.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to this Assignment and delivered using Electronic Means (as defined below); provided, however, that the Company and/or an Affiliate Operating Company, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and such Affiliate Operating Company, as applicable, to reflect any additions or deletions from the listing, and if so amended, shall be delivered to the Trustee at the time, or prior to the delivery of the Instructions pursuant to this Assignment. If the Company or an Affiliate Operating Company, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company and the Affiliate Operating Companies understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Affiliate Operating Companies shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and
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the Affiliate Operating Companies are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and or the Affiliate Operating Companies, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions, notwithstanding if such directions conflict or are inconsistent with a subsequent written instruction. The Company and each Affiliate Operating Company agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company and/or an Affiliate Operating Company, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
“Electronic Means” shall mean the following communication methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
ARTICLE VII.
Enforcement
7.1 Mortgage Terms and Conditions. The Trustee enters into and accepts this Assignment upon the terms and conditions set forth in Article Ten of the Restated Mortgage with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee in respect of this Assignment and the trusts hereunder and in respect of any action taken, suffered or omitted to be taken by the Trustee hereunder. Without limiting the generality of the foregoing, the Trustee assumes no responsibility as to the validity or enforceability hereof or for the correctness of the recitals of fact contained herein or in the Availability Agreement, which shall be taken as the statements, representations and warranties of the Company and the Affiliate Operating Companies.
7.2 Enforcement Action. At any time when an Event of Default under the Restated Mortgage has occurred and is continuing, the Trustee may proceed, either in its own name and as trustee of an express trust or otherwise, to protect and enforce the rights of the Trustee and those of the Company under this Assignment and the Availability Agreement by suit in equity, action at law or other appropriate proceedings, whether for the specific performance of any covenant or agreement contained herein or in the Availability Agreement or otherwise, and whether or not the Company shall have complied with any of the provisions hereof or thereof or proceeded to take any action authorized or permitted under applicable law. Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in
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addition to any other remedy given hereunder or under the Restated Mortgage or now or hereafter existing at law or in equity or by statute.
7.3 Attorney-in-Fact. The Company hereby constitutes the Trustee its true and lawful attorney, irrevocably, with full power (in such attorney’s name or otherwise), at any time when an Event of Default (as defined in the Restated Mortgage) has occurred and is continuing, to enforce any of the obligations contained herein or in the Availability Agreement or to take any action or institute any proceedings that to the Trustee may seem necessary or advisable in the premises.
ARTICLE VIII.
Severability
If any provision or provisions of this Assignment 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 IX.
Governing Law
This Assignment and, so long as this Assignment shall be in effect, the Availability Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
ARTICLE X.
Succession
Subject to Article IV hereof, this Assignment and the Availability 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 the Availability Agreement, or of any right to any funds due or to become due under this Assignment or the Availability Agreement shall in any event relieve the Company or any Affiliate Operating Company of their respective obligations hereunder.
ARTICLE XI.
Waiver of Jury Trial
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT, THE AVAILABILITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this First Assignment to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
ENTERGY ARKANSAS, LLC
ENTERGY MISSISSIPPI, LLC
ENTERGY NEW ORLEANS, LLC
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Barrett E. Green
Name: Barrett E. Green
Title: Vice President and Treasurer
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THE BANK OF NEW YORK MELLON,
as Trustee
By:/s/ Rick Fierro
Name: Rick Fierro
Title: Vice President
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Exhibit 1.03
SECOND ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND AGREEMENT
This Second Assignment of Availability Agreement, Consent and Agreement (hereinafter referred to as this “Assignment”), dated October 1, 2025, is made by and among System Energy Resources, Inc. (the “Company”), Entergy Arkansas, LLC, (“Entergy Arkansas”), Entergy Mississippi, LLC (“Entergy Mississippi”), and Entergy New Orleans, LLC (“Entergy New Orleans”) (hereinafter Entergy Arkansas, Entergy Mississippi and Entergy New Orleans are called individually an “Affiliate Operating Company” and collectively, the “Affiliate Operating Companies”) and The Bank of New York Mellon (successor to United States Trust Company of New York), as trustee (the “Trustee”) under the below-referenced Restated Mortgage.
WHEREAS:
A. Entergy Corporation (successor to Middle South Utilities, Inc.) (“Entergy”) owns, either directly or indirectly, all of the outstanding common securities of the Company and each of the Affiliate Operating Companies, and the Company has a 90% undivided ownership and leasehold interest in Unit No. 1 of the Grand Gulf Nuclear Station project (“Grand Gulf”).
B. Prior hereto, the Company and the Affiliate Operating Companies entered into an Availability Agreement dated as of October 1, 2025 (the “Availability Agreement”), providing that the Affiliate Operating Companies would pay the Company monthly amounts that (when added to any amounts received by the Company under the Unit Power Sales Agreement dated as of June 10, 1982, as amended effective October 1, 2025, among the Company and the Affiliate Operating Companies) would at least equal the Company’s total operating expenses for Grand Gulf (including depreciation at a specified rate and expenses incurred in a permanent shutdown of Grand Gulf) and interest charges.
C. Also prior hereto, the Company entered into the Mortgage and Deed of Trust dated as of June 15, 1977, between the Company and the Trustee, as amended, restated and supplemented by a Twenty-fourth Supplemental Indenture dated as of September 1, 2012 (the “Twenty-fourth Supplemental Indenture”) (said Mortgage and Deed of Trust, as so amended, restated and supplemented by the Twenty-fourth Supplemental Indenture, the “Original Restated Mortgage”), and as further supplemented by Officer’s Certificate No. 2-B-2 dated as of June 8, 2021 (“Officer’s Certificate No. 2-B-2”), Officer’s Certificate No. 4-B-4 dated as of March 8, 2023 (“Officer’s Certificate No. 4-B-4”) and Officer’s Certificate No. 5-B-5 dated as of December 3, 2024 (“Officer’s Certificate No. 5-B-5”), and as the same may from time to time hereafter be amended and supplemented in accordance with its terms, hereinafter referred to as the “Restated Mortgage”).
D. Also prior hereto, the Company issued (i) $85,103,000 aggregate principal amount of its First Mortgage Bonds, MBFC Series due 2044 (the “Twenty-fourth Series Bonds”) issued under and secured pursuant to the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 2-B-2, as collateral for $83,695,000 aggregate principal amount of the Mississippi Business Finance Corporation’s Revenue Refunding Bonds (System
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Energy Resources, Inc. Project) Series 2021 issued under the Trust Indenture dated as of June 1, 2021 with The Bank of New York Mellon, as trustee (the “MBFC Indenture Trustee”), (ii) $325,000,000 aggregate principal amount of its First Mortgage Bonds, 6.00% Series due April 15, 2028 (together with any additional Twenty-sixth Series Bonds as described in paragraph E below, the “Twenty-sixth Series Bonds”) under and secured pursuant to the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 4-B-4, and (iii) $540,000,000 aggregate principal amount of its First Mortgage Bonds, 5.30% Series due December 15, 2034 (together with any additional Twenty-seventh Series Bonds as described in paragraph E below, the “Twenty-seventh Series Bonds”), under and secured pursuant to the Original Restated Mortgage as supplemented by Officer’s Certificate No. 5-B-5.
E. Pursuant to the Restated Mortgage and Officer’s Certificate No. 4-B-4, the Company may issue additional Twenty-sixth Series Bonds, without limitation as to amount, having substantially the same terms as the Twenty-sixth Series Bonds then Outstanding (as defined in the Restated Mortgage) (except for the issue date, the price to public and, if applicable, the initial interest payment date) without notice to or the consent of the existing holders of the Twenty-sixth Series Bonds; and pursuant to the Restated Mortgage and Officer’s Certificate No. 5-B-5, the Company may issue additional Twenty-seventh Series Bonds, without limitation as to amount, having substantially the same terms as the Twenty-seventh Series Bonds then Outstanding (as defined in the Restated Mortgage) (except for the issue date, the price to public and, if applicable, the initial interest payment date) without notice to or the consent of the existing holders of the Twenty-seventh Series Bonds.
F. The Company wishes concurrently to (i) provide for the assignment by the Company to the Trustee, for the benefit of the holders of the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds, in each case, of certain of the Company’s rights under the Availability Agreement, (ii) create enforceable rights in the Trustee pursuant to substantially similar assignments, each to be effective concurrently as of October 1, 2025, and (iii) create enforceable rights relating thereto through execution and delivery of an Officer’s Certificate dated as of the date hereof Establishing Additional Events of Default and Provisions pursuant to Sections 101, 104, 1303 and 1307 of the Restated Mortgage.
G. The Affiliate Operating Companies are willing to, and by this instrument do, supplement their undertakings under the Availability Agreement in the manner described herein.
H. All things necessary to make this Assignment 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 or limited liability company and member, as applicable, 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:
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ARTICLE I.
Security Assignment and Agreement
1.1 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 Twenty-sixth Series Bonds (whether at maturity, pursuant to mandatory or optional prepayment, by acceleration or otherwise), and (ii) the due and punctual payment of all fees and costs, expenses and other amounts that may become payable by the Company under the Restated Mortgage and that are a charge on the trust estate thereunder, which is superior to the charge thereon for the benefit of the Twenty-sixth Series Bonds, together in each case, with all costs of collection thereof (all such amounts referred to in the foregoing clauses (i) and (ii) being hereinafter collectively referred to as “Obligations Secured Hereby”), the Company hereby assigns to the Trustee, and creates a security interest in favor of the Trustee, for the benefit of the holders of the Twenty-sixth Series Bonds, in all of the Company’s rights to receive all moneys paid or to be paid to the Company pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof, but only to the extent that such payments or advances are attributable to payments or advances with respect to Grand Gulf, and all other claims, rights (but not obligations or duties), powers, privileges, interests and remedies of the Company, whether arising under the Availability Agreement or this Assignment or by statute or in law or in equity or otherwise, resulting from any failure by any Affiliate Operating Company to perform its obligations under the Availability Agreement or this Assignment, but only to the extent that such claims, rights, powers, privileges, interests and remedies relate to Grand Gulf, all to the extent, but only to the extent, required for the payment when due and payable of Obligations Secured Hereby, together in each case with full power and authority, in the name of the Trustee or the Company as assignor, or otherwise, to demand payment of, enforce, collect, receive and accept receipt for any and all of the foregoing (the rights, claims, powers, privileges, interests and remedies referred to above being hereinafter sometimes called the “Collateral”).
1.2 Other Agreements.
(a) The Company has not and will not assign the rights assigned in Section 1.1 as security for any indebtedness other than the Obligations Secured Hereby, except as recited and provided in paragraph (b) of this Section 1.2.
(b) The Company is concurrently securing its Indebtedness for Borrowed Money (as defined below) represented by the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds pursuant to the First Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“First Assignment”), the Second Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“Second Assignment”), and the Third Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“Third Assignment”), respectively, 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 Grand Gulf (including, without limitation,
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Indebtedness for Borrowed Money outstanding under the Restated Mortgage) or to refund (including any successive refundings) any such Indebtedness for Borrowed Money (including such Indebtedness for Borrowed Money now outstanding) issued for such purpose, the incurrence of which Indebtedness for Borrowed Money is at the time permitted by the Restated Mortgage (herein, together with such Indebtedness for Borrowed Money now outstanding, called “Additional Indebtedness”), by entering into an assignment of availability agreement, consent and agreement including, without limitation, the First Assignment and the Third Assignment (each being hereinafter called an “Additional Assignment”), with the holders of such Additional Indebtedness or representatives of or trustees for such holders, or both, as the case may be (herein called an “Additional Assignee”). Each Additional Assignment hereafter entered into shall be substantially in the form of this Assignment, except that there shall be substituted in such Additional Assignment appropriate references to the Additional Indebtedness secured thereby, the applicable Additional Assignee and the agreement or instrument under which such Additional Indebtedness is issued in lieu of the references herein to the Twenty-sixth Series Bonds, the Trustee and the Restated Mortgage, respectively, and such Additional Assignment may contain such other provisions as are not inconsistent with this Assignment and do not adversely affect the rights hereunder of the holders of the Twenty-sixth Series Bonds or the Trustee.
(c) Notwithstanding any provision of this Assignment to the contrary, or any priority in time of creation, attachment or perfection of a security interest, pledge or lien by the Trustee, or any provision of or filing or recording under the Uniform Commercial Code or any other applicable law of any jurisdiction, the Trustee agrees that the claims of the Trustee hereunder with respect to the Trustee and any security interest, pledge or lien in favor of the Trustee now or hereafter existing in and to the Collateral shall rank pari passu with the claims of each Additional Assignee under the corresponding provisions of the Additional Assignment to which it is a party with respect to the Availability Agreement and any security interest, pledge or lien in favor of such Additional Assignee under such Additional Assignment now or hereafter existing in and to the Collateral, irrespective of the time or times at which prior, concurrent or subsequent Additional Assignments are entered into in accordance with Section 1.2(b) hereof.
1.3 Payments to the Trustee. The Company agrees that, if and whenever it shall make a demand to an Affiliate Operating Company for any payment pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf, it will separately identify the respective portions of such payment or advance, 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 such Affiliate Operating Company (subject to the provisions of Section 1.4 hereof) to pay or cause to be paid the amount so identified as required for the payment of Obligations Secured Hereby directly to the Trustee. Any payments made by any Affiliate Operating Company pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall, to the extent necessary to satisfy in full the assignment set forth in Section 1.1 of this Assignment and the corresponding assignments set forth in the Additional Assignments, be made pro rata in proportion to the respective amounts secured by, and then due and owing under, such assignments.
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1.4 Payments to the Company. Notwithstanding the provisions of Sections 1.1 and 1.3, unless and until the Trustee shall have given written notice to the Affiliate Operating Companies of the occurrence and continuance of any Event of Default (as defined in the Restated Mortgage), all moneys paid or to be paid to the Company pursuant to Section 4 of the Availability Agreement or advanced pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall be paid or advanced directly to the Company, and the Company need not separately identify the respective portions of payments or advances as provided in Section 1.3 hereof; provided that notice as to the amount of any such payments or advances shall be given by the Company to the Trustee simultaneously with the demand by the Company for any such payments or advances. If the Trustee shall have duly notified the Affiliate Operating Companies of the occurrence of any such Event of Default, such payments or advances shall be made in the manner and in the amounts specified in Section 1.3 hereof until the Trustee shall by further notice to the Affiliate Operating Companies give permission that all such payments or advances 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 1.4. The Trustee shall give such permission if no such Event of Default continues to exist.
1.5 Definitions. For the purposes of this Assignment, the following terms shall have the following meanings:
(a) 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 on the Company’s behalf 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 Grand Gulf; and
(b) 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 1.1 hereof) to the extent and in the manner set forth below:
(i) if there shall occur an Event of Default (as defined in the Restated Mortgage), then so long as such Event of Default shall be continuing and shall not have been cured or waived, or unless and until all the Obligations Secured Hereby shall have been paid in full in money or money’s worth at the time of receipt, no payment of principal, 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 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.
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ARTICLE II.
Consent to Assignment by the Affiliate Operating
Companies and Other Agreements
2.1 Consent to Assignment by the Affiliate Operating Companies.
(a) Each Affiliate Operating Company hereby consents to the assignment under Article I and agrees with the Trustee to make payments or advances to the Trustee in the amounts and in the manner specified in Section 1.3 at the Trustee’s address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the Availability Agreement and Section 2.2(g) hereof, each Affiliate Operating Company agrees that all payments or advances made to the Trustee or to the Company as contemplated by Sections 1.3 and 1.4 hereof shall be final as between such Affiliate Operating Company and the Trustee or the Company, as the case may be, and that it will not seek to recover from the Trustee for any reason whatsoever any moneys paid or advanced to the Trustee by virtue of this Assignment, but the finality of any such payment or advance shall not prevent the recovery of any overpayments or mistaken payments or excess advances or mistaken advances that may be made by such Affiliate Operating Company unless an Event of Default under the Restated Mortgage has occurred and is continuing, in which case any such overpayment or mistaken payment or excess advances or mistaken advances shall not be recoverable but shall constitute Subordinated Indebtedness of the Company to such Affiliate Operating Company.
2.2 Other Agreements. Anything in the Availability Agreement to the contrary notwithstanding, it is hereby agreed as follows:
(a) Regardless of whether any person or persons (other than the Affiliate Operating Companies) shall become a Party or Parties (as such terms are defined in the Availability Agreement) to the Availability Agreement, the Affiliate Operating Companies shall at all times be obligated to make the payments required pursuant to Section 4 of the Availability Agreement and to make advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf to the same extent as if the Affiliate Operating Companies were the only Parties to the Availability Agreement, except to the extent and only to the extent that such payments or advances are actually made by such person or persons. In the event that any such person shall become a Party to the Availability Agreement, the Company and the Affiliate Operating Companies shall cause such person, at the time when such person becomes a Party to the Availability Agreement, to consent by written instrument to the terms and provisions of this Assignment, and thereupon such person shall be bound by all of the terms and provisions of this Assignment (other than the provisions of the preceding sentence) to the same extent as if named an Affiliate Operating Company herein. A copy of such written instrument, in form and substance satisfactory to the Trustee, shall promptly be delivered to the Trustee together with an opinion of counsel to the effect that such instrument complies with the requirements hereof and constitutes a valid, legally binding obligation of such person.
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(b) In the event and to the extent that any action by any governmental regulatory authority, including, without limitation, the Federal Energy Regulatory Commission or any successor thereto, shall have the effect of prohibiting the Affiliate Operating Companies from making any payments that would otherwise be required pursuant to Section 4 of the Availability Agreement (as supplemented hereby) with respect to Grand Gulf, the Affiliate Operating Companies shall make advances to the Company at the same time, and in the same amounts as such prohibited payments and all such advances shall constitute Subordinated Indebtedness of the Company.
(c) Each Affiliate Operating Company agrees that (i) all Indebtedness for Borrowed Money of the Company to such Affiliate Operating Company and all amounts paid by such Affiliate Operating Company pursuant to Section 4 of the Availability Agreement or advanced pursuant to Section 2.2(b) hereof shall constitute Subordinated Indebtedness of the Company 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 such Affiliate Operating Company by way of merger, consolidation or the acquisition by such person of all or substantially all of such Affiliate Operating Company’s assets). The Company agrees that it shall duly record all Subordinated Indebtedness of the Company as such on its books.
(d) No authorization by any governmental regulatory authority being required other than, with respect to the payments pursuant to the provisions of Section 4 of the Availability Agreement, appropriate orders, or the taking of other action, by the Federal Energy Regulatory Commission or any successor thereto as to specific terms and provisions pursuant to which the Affiliate Operating Companies shall agree to pay the Company, each Affiliate Operating Company agrees that its duty to make the payments to the Company pursuant to the provisions of Section 4 of the Availability Agreement and the advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall be absolute and unconditional, (a) whether or not such Affiliate Operating Company shall have received all authorizations of governmental regulatory authorities necessary at the time to permit such Affiliate Operating Company to perform its other duties and obligations hereunder or under the Availability Agreement, (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 or under the Availability Agreement, (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 hereunder or under the Availability Agreement, (e) whether or not Grand Gulf shall be maintained in commercial operation, energy from Grand Gulf is being produced or delivered or is available (including, without limitation, delivery or availability to such Affiliate Operating Company), an abandonment of Grand Gulf shall have occurred or Grand Gulf shall be in whole or in part destroyed or taken, for any reason whatsoever, (f) whether or not the Company shall be solvent, (g) whether or not the Company or such Affiliate Operating Company shall continue to be subsidiary companies of Entergy, (h) whether or not, at any time in question, any event of force majeure has occurred, and (i) whether or not, at any time in question, any other circumstance, happening, condition or event whatsoever, whether or not similar to any of the foregoing, has arisen, occurred or presented itself.
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(e) In the event that Entergy shall cease to own directly or indirectly a majority of the common securities of any Affiliate Operating Company, the obligations of such Affiliate Operating Company hereunder and under the Availability Agreement shall not be increased by an amendment to or modification of the terms and provisions of the Restated Mortgage, including Officer’s Certificate No. 4-B-4 or the Twenty-sixth Series Bonds, unless such Affiliate Operating Company shall have consented in writing to such amendment or modification.
(f) The obligations of each Affiliate Operating Company under Section 4 of the Availability Agreement and Section 2.2(b) hereof to make the payments or advances specified therein or herein with respect to Grand Gulf 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 such Affiliate Operating Company or any claim by such Affiliate Operating Company against the Company, whether or not arising hereunder or under the Availability Agreement and whether or not arising out of any action or nonaction on the part of the Company or the Trustee, including any disposition of Grand Gulf or any part thereof pursuant to the Restated Mortgage, requirements of governmental authorities, actions of judicial receivers or trustees or otherwise and whether or not arising from willful or negligent acts or omissions). The foregoing, however, shall not, subject to the provisions of paragraph (c) of this Section 2.2, affect in any other way any rights and remedies of such Affiliate Operating Company with respect to any amounts owed to such Affiliate Operating Company by the Company or any such claim by such Affiliate Operating Company against the Company. The obligations and liabilities of each Affiliate Operating Company hereunder or under the Availability Agreement 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 such Affiliate Operating Company, whether or not the Company or such Affiliate Operating Company shall have had any notice or knowledge of any of the foregoing. Neither failure nor delay by the Company or the Trustee, or any holder, or representative of any holder of the Twenty-sixth Series Bonds 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. Each Affiliate Operating Company 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 that may be asserted as a bar to the remedy of specific performance in any action brought against such Affiliate Operating Company for specific performance of this Assignment or the Availability Agreement by the Company, by the Trustee, by the holders of the Twenty-sixth Series Bonds, 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 2.2(f) to the contrary notwithstanding, no Affiliate Operating Company shall be precluded from asserting as a defense against any claim made against such Affiliate Operating Company upon any of its obligations hereunder and under the Availability Agreement that it has fully performed such obligations in accordance with the terms of this Assignment and the Availability Agreement.
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(g) Each Affiliate Operating Company shall, subject to the provisions of Section 2.2(c) hereof, be proportionately subrogated to all rights of the Trustee and the holders of the Twenty-sixth Series Bonds against the Company in respect of any amounts paid or advanced by such Affiliate Operating Company pursuant to the provisions of this Assignment and the Availability Agreement and applied to the payment of the Obligations Secured Hereby. Subject to the provisions of Article VII hereof, the Trustee agrees that it will not deal with the Company, or any security for the Twenty-sixth Series Bonds in such a manner as to prejudice such rights of any Affiliate Operating Company.
ARTICLE III.
Term
This Assignment 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; provided that this Assignment shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations Secured Hereby is rescinded or must otherwise be returned by the Trustee upon the insolvency, bankruptcy or reorganization of the Company, any Affiliate Operating Company or otherwise, all as though such payment had not been made. It is agreed that all the covenants and undertakings on the part of the Affiliate Operating Companies and the Company set forth in this Assignment are exclusively for the benefit of, and may be enforced only by, the Trustee or the holders of the Twenty-sixth Series Bonds, as provided in the Restated Mortgage, 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 Assignment nor the Availability Agreement nor any interest herein or therein may be assigned, transferred or encumbered by any of the parties hereto or thereto, except transfer or assignment by the Trustee to its successors in accordance with Article Ten of the Restated Mortgage, except as otherwise provided in Article I hereof and except that
(i) in the event that any Affiliate Operating 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 Assignment and the Availability Agreement shall be transferred by such Affiliate Operating 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 succeeding corporation or other person shall be substituted for such Affiliate Operating Company and shall deliver to the Company and the Trustee a written assumption, in form and substance satisfactory to the Trustee, of such Affiliate Operating Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and
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constitutes a valid, legally binding and enforceable obligation of such corporation or other person;
(ii) any Affiliate Operating Company may assign to one or more other Affiliate Operating Companies its obligations and liabilities under the Availability Agreement and this Assignment; provided that such Affiliate Operating Company or Companies shall assume and succeed to such obligations and liabilities under the Availability Agreement and this Assignment, be substituted for such assigning Affiliate Operating Company and such assuming Affiliate Operating Company or Companies shall deliver to the Company and the Trustee a written assumption, in form and substance satisfactory to the Trustee, of such assigning Affiliate Operating Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such assuming Affiliate Operating Company or Companies; and
(iii) 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 Assignment and the Availability 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 succeeding corporation or other person shall be substituted for the Company and shall deliver to the Trustee a written assumption, in form and substance satisfactory to the Trustee, of the Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such corporation or other person.
ARTICLE V.
Amendments
5.1 Restrictions on Amendments. Neither this Assignment nor the Availability Agreement may be amended, waived, modified, discharged or otherwise changed orally. This Assignment and the Availability Agreement may be amended, waived, modified, discharged or otherwise changed only by a written instrument that has been signed by all the parties hereto, in the case of this Assignment, or by the persons specified in Section 11 of the Availability Agreement, in the case of the Availability Agreement, and that has been approved by the holders of more than 50% in principal amount of the Twenty-sixth Series Bonds Outstanding (as defined in the Restated Mortgage) at the time of such consent or that does not materially adversely affect the rights of the Trustee or the holders of the Twenty-sixth Series Bonds or that is necessary in order to qualify the Restated Mortgage under the Trust Indenture Act of 1939, as contemplated by Sections 1301 and 1302 of the Restated Mortgage; provided, however, that (i) without the written consent of the holders of all the Twenty-sixth Series Bonds affected thereby, no amendment, waiver, modification, discharge or other change in or to this Assignment or the Availability Agreement shall be made that shall change the terms of this Section 5.1 and (ii) no such amendment, waiver, modification, discharge or other change shall be made that shall
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modify, without the written consent of the Trustee, the rights, duties or immunities or the Trustee.
5.2 The Trustee’s Execution. The Trustee shall, at the written request of the Company, execute any instrument amending, waiving, modifying, discharging or otherwise changing this Assignment, or any consent to the execution of any instrument amending, waiving, modifying, discharging or otherwise changing the Availability Agreement (a) as to which the Trustee shall have received an opinion of counsel to the effect that such instrument has been duly authorized by each person executing the same and is permitted by the provisions of Section 5.1 hereof and that this Assignment, or the Availability Agreement, as the case may be, as amended, waived, modified, discharged or otherwise changed by such instrument, constitutes valid, legally binding and enforceable obligations of the Company and each of the Affiliate Operating Companies, and (b) that shall have been executed by the Company and each of the Affiliate Operating Companies. The Trustee shall be fully protected in relying upon the aforesaid opinion.
ARTICLE VI.
Notices
6.1 Notices, etc., in Writing. All notices, consents, requests and other documents authorized or permitted to be given pursuant to this Assignment 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, addressed as follows:
If to System Energy Resources, Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Arkansas, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Mississippi, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
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If to Entergy New Orleans, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to the Trustee, to:
The Bank of New York Mellon
c/o The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Barbara Zsombori, Vice President
with copies to each other party.
6.2 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 6.1 hereof, on the third day after the day of mailing. 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.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to this Assignment and delivered using Electronic Means (as defined below); provided, however, that the Company and/or an Affiliate Operating Company, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and such Affiliate Operating Company, as applicable, to reflect any additions or deletions from the listing, and if so amended, shall be delivered to the Trustee at the time, or prior to the delivery of the Instructions pursuant to this Assignment. If the Company or an Affiliate Operating Company, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company and the Affiliate Operating Companies understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Affiliate Operating Companies shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and the Affiliate Operating Companies are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and or the Affiliate Operating Companies, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions, notwithstanding if such directions conflict or are inconsistent with a subsequent written instruction. The Company and each Affiliate Operating
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Company agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company and/or an Affiliate Operating Company, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
“Electronic Means” shall mean the following communication methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
ARTICLE VII.
Enforcement
7.1 Mortgage Terms and Conditions. The Trustee enters into and accepts this Assignment upon the terms and conditions set forth in Article Ten of the Restated Mortgage with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee in respect of this Assignment and the trusts hereunder and in respect of any action taken, suffered or omitted to be taken by the Trustee hereunder. Without limiting the generality of the foregoing, the Trustee assumes no responsibility as to the validity or enforceability hereof or for the correctness of the recitals of fact contained herein or in the Availability Agreement, which shall be taken as the statements, representations and warranties of the Company and the Affiliate Operating Companies.
7.2 Enforcement Action. At any time when an Event of Default under the Restated Mortgage has occurred and is continuing, the Trustee may proceed, either in its own name and as trustee of an express trust or otherwise, to protect and enforce the rights of the Trustee and those of the Company under this Assignment and the Availability Agreement by suit in equity, action at law or other appropriate proceedings, whether for the specific performance of any covenant or agreement contained herein or in the Availability Agreement or otherwise, and whether or not the Company shall have complied with any of the provisions hereof or thereof or proceeded to take any action authorized or permitted under applicable law. Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Restated Mortgage or now or hereafter existing at law or in equity or by statute.
7.3 Attorney-in-Fact. The Company hereby constitutes the Trustee its true and lawful attorney, irrevocably, with full power (in such attorney’s name or otherwise), at any time when an Event of Default (as defined in the Restated Mortgage) has occurred and is continuing, to enforce any of the obligations contained herein or in the Availability Agreement or to take any
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action or institute any proceedings that to the Trustee may seem necessary or advisable in the premises.
ARTICLE VIII.
Severability
If any provision or provisions of this Assignment 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 IX.
Governing Law
This Assignment and, so long as this Assignment shall be in effect, the Availability Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
ARTICLE X.
Succession
Subject to Article IV hereof, this Assignment and the Availability 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 the Availability Agreement, or of any right to any funds due or to become due under this Assignment or the Availability Agreement shall in any event relieve the Company or any Affiliate Operating Company of their respective obligations hereunder.
ARTICLE XI.
Waiver of Jury Trial
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT, THE AVAILABILITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Assignment to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
ENTERGY ARKANSAS, LLC
ENTERGY MISSISSIPPI, LLC
ENTERGY NEW ORLEANS, LLC
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Barrett E. Green
Name: Barrett E. Green
Title: Vice President and Treasurer
S-1
THE BANK OF NEW YORK MELLON,
as Trustee
By:/s/ Rick Fierro
Name: Rick Fierro
Title: Vice President
S-2
Exhibit 1.04
THIRD ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND AGREEMENT
This Third Assignment of Availability Agreement, Consent and Agreement (hereinafter referred to as this “Assignment”), dated October 1, 2025, is made by and among System Energy Resources, Inc. (the “Company”), Entergy Arkansas, LLC, (“Entergy Arkansas”), Entergy Mississippi, LLC (“Entergy Mississippi”), and Entergy New Orleans, LLC (“Entergy New Orleans”) (hereinafter Entergy Arkansas, Entergy Mississippi and Entergy New Orleans are called individually an “Affiliate Operating Company” and collectively, the “Affiliate Operating Companies”) and The Bank of New York Mellon (successor to United States Trust Company of New York), as trustee (the “Trustee”) under the below-referenced Restated Mortgage.
WHEREAS:
A. Entergy Corporation (successor to Middle South Utilities, Inc.) (“Entergy”) owns, either directly or indirectly, all of the outstanding common securities of the Company and each of the Affiliate Operating Companies, and the Company has a 90% undivided ownership and leasehold interest in Unit No. 1 of the Grand Gulf Nuclear Station project (“Grand Gulf”).
B. Prior hereto, the Company and the Affiliate Operating Companies entered into an Availability Agreement dated as of October 1, 2025 (the “Availability Agreement”), providing that the Affiliate Operating Companies would pay the Company monthly amounts that (when added to any amounts received by the Company under the Unit Power Sales Agreement dated as of June 10, 1982, as amended effective October 1, 2025, among the Company and the Affiliate Operating Companies) would at least equal the Company’s total operating expenses for Grand Gulf (including depreciation at a specified rate and expenses incurred in a permanent shutdown of Grand Gulf) and interest charges.
C. Also prior hereto, the Company entered into the Mortgage and Deed of Trust dated as of June 15, 1977, between the Company and the Trustee, as amended, restated and supplemented by a Twenty-fourth Supplemental Indenture dated as of September 1, 2012 (the “Twenty-fourth Supplemental Indenture”) (said Mortgage and Deed of Trust, as so amended, restated and supplemented by the Twenty-fourth Supplemental Indenture, the “Original Restated Mortgage”), and as further supplemented by Officer’s Certificate No. 2-B-2 dated as of June 8, 2021 (“Officer’s Certificate No. 2-B-2”), Officer’s Certificate No. 4-B-4 dated as of March 8, 2023 (“Officer’s Certificate No. 4-B-4”) and Officer’s Certificate No. 5-B-5 dated as of December 3, 2024 (“Officer’s Certificate No. 5-B-5”), and as the same may from time to time hereafter be amended and supplemented in accordance with its terms, hereinafter referred to as the “Restated Mortgage”).
D. Also prior hereto, the Company issued (i) $85,103,000 aggregate principal amount of its First Mortgage Bonds, MBFC Series due 2044 (the “Twenty-fourth Series Bonds”) issued under and secured pursuant to the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 2-B-2, as collateral for $83,695,000 aggregate principal amount of the Mississippi Business Finance Corporation’s Revenue Refunding Bonds (System
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Energy Resources, Inc. Project) Series 2021 issued under the Trust Indenture dated as of June 1, 2021 with The Bank of New York Mellon, as trustee (the “MBFC Indenture Trustee”), (ii) $325,000,000 aggregate principal amount of its First Mortgage Bonds, 6.00% Series due April 15, 2028 (together with any additional Twenty-sixth Series Bonds as described in paragraph E below, the “Twenty-sixth Series Bonds”) under and secured pursuant to the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 4-B-4, and (iii) $540,000,000 aggregate principal amount of its First Mortgage Bonds, 5.30% Series due December 15, 2034 (together with any additional Twenty-seventh Series Bonds as described in paragraph E below, the “Twenty-seventh Series Bonds”), under and secured pursuant to the Original Restated Mortgage as supplemented by Officer’s Certificate No. 5-B-5.
E. Pursuant to the Restated Mortgage and Officer’s Certificate No. 4-B-4, the Company may issue additional Twenty-sixth Series Bonds, without limitation as to amount, having substantially the same terms as the Twenty-sixth Series Bonds then Outstanding (as defined in the Restated Mortgage) (except for the issue date, the price to public and, if applicable, the initial interest payment date) without notice to or the consent of the existing holders of the Twenty-sixth Series Bonds; and pursuant to the Restated Mortgage and Officer’s Certificate No. 5-B-5, the Company may issue additional Twenty-seventh Series Bonds, without limitation as to amount, having substantially the same terms as the Twenty-seventh Series Bonds then Outstanding (as defined in the Restated Mortgage) (except for the issue date, the price to public and, if applicable, the initial interest payment date) without notice to or the consent of the existing holders of the Twenty-seventh Series Bonds.
F. The Company wishes concurrently to (i) provide for the assignment by the Company to the Trustee, for the benefit of the holders of the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds, in each case, of certain of the Company’s rights under the Availability Agreement, (ii) create enforceable rights in the Trustee pursuant to substantially similar assignments, each to be effective concurrently as of October 1, 2025, and (iii) create enforceable rights relating thereto through execution and delivery of an Officer’s Certificate dated as of the date hereof Establishing Additional Events of Default and Provisions pursuant to Sections 101, 104, 1303 and 1307 of the Restated Mortgage.
G. The Affiliate Operating Companies are willing to, and by this instrument do, supplement their undertakings under the Availability Agreement in the manner described herein.
H. All things necessary to make this Assignment 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 or limited liability company and member, as applicable, 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:
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ARTICLE I.
Security Assignment and Agreement
1.1 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 Twenty-seventh Series Bonds (whether at maturity, pursuant to mandatory or optional prepayment, by acceleration or otherwise), and (ii) the due and punctual payment of all fees and costs, expenses and other amounts that may become payable by the Company under the Restated Mortgage and that are a charge on the trust estate thereunder, which is superior to the charge thereon for the benefit of the Twenty-seventh Series Bonds, together in each case, with all costs of collection thereof (all such amounts referred to in the foregoing clauses (i) and (ii) being hereinafter collectively referred to as “Obligations Secured Hereby”), the Company hereby assigns to the Trustee, and creates a security interest in favor of the Trustee, for the benefit of the holders of the Twenty-seventh Series Bonds, in all of the Company’s rights to receive all moneys paid or to be paid to the Company pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof, but only to the extent that such payments or advances are attributable to payments or advances with respect to Grand Gulf, and all other claims, rights (but not obligations or duties), powers, privileges, interests and remedies of the Company, whether arising under the Availability Agreement or this Assignment or by statute or in law or in equity or otherwise, resulting from any failure by any Affiliate Operating Company to perform its obligations under the Availability Agreement or this Assignment, but only to the extent that such claims, rights, powers, privileges, interests and remedies relate to Grand Gulf, all to the extent, but only to the extent, required for the payment when due and payable of Obligations Secured Hereby, together in each case with full power and authority, in the name of the Trustee or the Company as assignor, or otherwise, to demand payment of, enforce, collect, receive and accept receipt for any and all of the foregoing (the rights, claims, powers, privileges, interests and remedies referred to above being hereinafter sometimes called the “Collateral”).
1.2 Other Agreements.
(a) The Company has not and will not assign the rights assigned in Section 1.1 as security for any indebtedness other than the Obligations Secured Hereby, except as recited and provided in paragraph (b) of this Section 1.2.
(b) The Company is concurrently securing its Indebtedness for Borrowed Money (as defined below) represented by the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds pursuant to the First Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“First Assignment”), the Second Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“Second Assignment”), and the Third Assignment of Availability Agreement, Consent and Agreement dated as of October 1, 2025 (“Third Assignment”), respectively, 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 Grand Gulf (including, without limitation,
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Indebtedness for Borrowed Money outstanding under the Restated Mortgage) or to refund (including any successive refundings) any such Indebtedness for Borrowed Money (including such Indebtedness for Borrowed Money now outstanding) issued for such purpose, the incurrence of which Indebtedness for Borrowed Money is at the time permitted by the Restated Mortgage (herein, together with such Indebtedness for Borrowed Money now outstanding, called “Additional Indebtedness”), by entering into an assignment of availability agreement, consent and agreement including, without limitation, the First Assignment and the Second Assignment (each being hereinafter called an “Additional Assignment”), with the holders of such Additional Indebtedness or representatives of or trustees for such holders, or both, as the case may be (herein called an “Additional Assignee”). Each Additional Assignment hereafter entered into shall be substantially in the form of this Assignment, except that there shall be substituted in such Additional Assignment appropriate references to the Additional Indebtedness secured thereby, the applicable Additional Assignee and the agreement or instrument under which such Additional Indebtedness is issued in lieu of the references herein to the Twenty-seventh Series Bonds, the Trustee and the Restated Mortgage, respectively, and such Additional Assignment may contain such other provisions as are not inconsistent with this Assignment and do not adversely affect the rights hereunder of the holders of the Twenty-seventh Series Bonds or the Trustee.
(c) Notwithstanding any provision of this Assignment to the contrary, or any priority in time of creation, attachment or perfection of a security interest, pledge or lien by the Trustee, or any provision of or filing or recording under the Uniform Commercial Code or any other applicable law of any jurisdiction, the Trustee agrees that the claims of the Trustee hereunder with respect to the Trustee and any security interest, pledge or lien in favor of the Trustee now or hereafter existing in and to the Collateral shall rank pari passu with the claims of each Additional Assignee under the corresponding provisions of the Additional Assignment to which it is a party with respect to the Availability Agreement and any security interest, pledge or lien in favor of such Additional Assignee under such Additional Assignment now or hereafter existing in and to the Collateral, irrespective of the time or times at which prior, concurrent or subsequent Additional Assignments are entered into in accordance with Section 1.2(b) hereof.
1.3 Payments to the Trustee. The Company agrees that, if and whenever it shall make a demand to an Affiliate Operating Company for any payment pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf, it will separately identify the respective portions of such payment or advance, 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 such Affiliate Operating Company (subject to the provisions of Section 1.4 hereof) to pay or cause to be paid the amount so identified as required for the payment of Obligations Secured Hereby directly to the Trustee. Any payments made by any Affiliate Operating Company pursuant to Section 4 of the Availability Agreement or advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall, to the extent necessary to satisfy in full the assignment set forth in Section 1.1 of this Assignment and the corresponding assignments set forth in the Additional Assignments, be made pro rata in proportion to the respective amounts secured by, and then due and owing under, such assignments.
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1.4 Payments to the Company. Notwithstanding the provisions of Sections 1.1 and 1.3, unless and until the Trustee shall have given written notice to the Affiliate Operating Companies of the occurrence and continuance of any Event of Default (as defined in the Restated Mortgage), all moneys paid or to be paid to the Company pursuant to Section 4 of the Availability Agreement or advanced pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall be paid or advanced directly to the Company, and the Company need not separately identify the respective portions of payments or advances as provided in Section 1.3 hereof; provided that notice as to the amount of any such payments or advances shall be given by the Company to the Trustee simultaneously with the demand by the Company for any such payments or advances. If the Trustee shall have duly notified the Affiliate Operating Companies of the occurrence of any such Event of Default, such payments or advances shall be made in the manner and in the amounts specified in Section 1.3 hereof until the Trustee shall by further notice to the Affiliate Operating Companies give permission that all such payments or advances 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 1.4. The Trustee shall give such permission if no such Event of Default continues to exist.
1.5 Definitions. For the purposes of this Assignment, the following terms shall have the following meanings:
(a) 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 on the Company’s behalf 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 Grand Gulf; and
(b) 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 1.1 hereof) to the extent and in the manner set forth below:
(i) if there shall occur an Event of Default (as defined in the Restated Mortgage), then so long as such Event of Default shall be continuing and shall not have been cured or waived, or unless and until all the Obligations Secured Hereby shall have been paid in full in money or money’s worth at the time of receipt, no payment of principal, 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 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.
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ARTICLE II.
Consent to Assignment by the Affiliate Operating
Companies and Other Agreements
2.1 Consent to Assignment by the Affiliate Operating Companies.
(a) Each Affiliate Operating Company hereby consents to the assignment under Article I and agrees with the Trustee to make payments or advances to the Trustee in the amounts and in the manner specified in Section 1.3 at the Trustee’s address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the Availability Agreement and Section 2.2(g) hereof, each Affiliate Operating Company agrees that all payments or advances made to the Trustee or to the Company as contemplated by Sections 1.3 and 1.4 hereof shall be final as between such Affiliate Operating Company and the Trustee or the Company, as the case may be, and that it will not seek to recover from the Trustee for any reason whatsoever any moneys paid or advanced to the Trustee by virtue of this Assignment, but the finality of any such payment or advance shall not prevent the recovery of any overpayments or mistaken payments or excess advances or mistaken advances that may be made by such Affiliate Operating Company unless an Event of Default under the Restated Mortgage has occurred and is continuing, in which case any such overpayment or mistaken payment or excess advances or mistaken advances shall not be recoverable but shall constitute Subordinated Indebtedness of the Company to such Affiliate Operating Company.
2.2 Other Agreements. Anything in the Availability Agreement to the contrary notwithstanding, it is hereby agreed as follows:
(a) Regardless of whether any person or persons (other than the Affiliate Operating Companies) shall become a Party or Parties (as such terms are defined in the Availability Agreement) to the Availability Agreement, the Affiliate Operating Companies shall at all times be obligated to make the payments required pursuant to Section 4 of the Availability Agreement and to make advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf to the same extent as if the Affiliate Operating Companies were the only Parties to the Availability Agreement, except to the extent and only to the extent that such payments or advances are actually made by such person or persons. In the event that any such person shall become a Party to the Availability Agreement, the Company and the Affiliate Operating Companies shall cause such person, at the time when such person becomes a Party to the Availability Agreement, to consent by written instrument to the terms and provisions of this Assignment, and thereupon such person shall be bound by all of the terms and provisions of this Assignment (other than the provisions of the preceding sentence) to the same extent as if named an Affiliate Operating Company herein. A copy of such written instrument, in form and substance satisfactory to the Trustee, shall promptly be delivered to the Trustee together with an opinion of counsel to the effect that such instrument complies with the requirements hereof and constitutes a valid, legally binding obligation of such person.
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(b) In the event and to the extent that any action by any governmental regulatory authority, including, without limitation, the Federal Energy Regulatory Commission or any successor thereto, shall have the effect of prohibiting the Affiliate Operating Companies from making any payments that would otherwise be required pursuant to Section 4 of the Availability Agreement (as supplemented hereby) with respect to Grand Gulf, the Affiliate Operating Companies shall make advances to the Company at the same time, and in the same amounts as such prohibited payments and all such advances shall constitute Subordinated Indebtedness of the Company.
(c) Each Affiliate Operating Company agrees that (i) all Indebtedness for Borrowed Money of the Company to such Affiliate Operating Company and all amounts paid by such Affiliate Operating Company pursuant to Section 4 of the Availability Agreement or advanced pursuant to Section 2.2(b) hereof shall constitute Subordinated Indebtedness of the Company 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 such Affiliate Operating Company by way of merger, consolidation or the acquisition by such person of all or substantially all of such Affiliate Operating Company’s assets). The Company agrees that it shall duly record all Subordinated Indebtedness of the Company as such on its books.
(d) No authorization by any governmental regulatory authority being required other than, with respect to the payments pursuant to the provisions of Section 4 of the Availability Agreement, appropriate orders, or the taking of other action, by the Federal Energy Regulatory Commission or any successor thereto as to specific terms and provisions pursuant to which the Affiliate Operating Companies shall agree to pay the Company, each Affiliate Operating Company agrees that its duty to make the payments to the Company pursuant to the provisions of Section 4 of the Availability Agreement and the advances pursuant to Section 2.2(b) hereof with respect to Grand Gulf shall be absolute and unconditional, (a) whether or not such Affiliate Operating Company shall have received all authorizations of governmental regulatory authorities necessary at the time to permit such Affiliate Operating Company to perform its other duties and obligations hereunder or under the Availability Agreement, (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 or under the Availability Agreement, (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 hereunder or under the Availability Agreement, (e) whether or not Grand Gulf shall be maintained in commercial operation, energy from Grand Gulf is being produced or delivered or is available (including, without limitation, delivery or availability to such Affiliate Operating Company), an abandonment of Grand Gulf shall have occurred or Grand Gulf shall be in whole or in part destroyed or taken, for any reason whatsoever, (f) whether or not the Company shall be solvent, (g) whether or not the Company or such Affiliate Operating Company shall continue to be subsidiary companies of Entergy, (h) whether or not, at any time in question, any event of force majeure has occurred, and (i) whether or not, at any time in question, any other circumstance, happening, condition or event whatsoever, whether or not similar to any of the foregoing, has arisen, occurred or presented itself.
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(e) In the event that Entergy shall cease to own directly or indirectly a majority of the common securities of any Affiliate Operating Company, the obligations of such Affiliate Operating Company hereunder and under the Availability Agreement shall not be increased by an amendment to or modification of the terms and provisions of the Restated Mortgage, including Officer’s Certificate No. 5-B-5 or the Twenty-seventh Series Bonds, unless such Affiliate Operating Company shall have consented in writing to such amendment or modification.
(f) The obligations of each Affiliate Operating Company under Section 4 of the Availability Agreement and Section 2.2(b) hereof to make the payments or advances specified therein or herein with respect to Grand Gulf 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 such Affiliate Operating Company or any claim by such Affiliate Operating Company against the Company, whether or not arising hereunder or under the Availability Agreement and whether or not arising out of any action or nonaction on the part of the Company or the Trustee, including any disposition of Grand Gulf or any part thereof pursuant to the Restated Mortgage, requirements of governmental authorities, actions of judicial receivers or trustees or otherwise and whether or not arising from willful or negligent acts or omissions). The foregoing, however, shall not, subject to the provisions of paragraph (c) of this Section 2.2, affect in any other way any rights and remedies of such Affiliate Operating Company with respect to any amounts owed to such Affiliate Operating Company by the Company or any such claim by such Affiliate Operating Company against the Company. The obligations and liabilities of each Affiliate Operating Company hereunder or under the Availability Agreement 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 such Affiliate Operating Company, whether or not the Company or such Affiliate Operating Company shall have had any notice or knowledge of any of the foregoing. Neither failure nor delay by the Company or the Trustee, or any holder, or representative of any holder of the Twenty-seventh Series Bonds 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. Each Affiliate Operating Company 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 that may be asserted as a bar to the remedy of specific performance in any action brought against such Affiliate Operating Company for specific performance of this Assignment or the Availability Agreement by the Company, by the Trustee, by the holders of the Twenty-seventh Series Bonds, 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 2.2(f) to the contrary notwithstanding, no Affiliate Operating Company shall be precluded from asserting as a defense against any claim made against such Affiliate Operating Company upon any of its
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obligations hereunder and under the Availability Agreement that it has fully performed such obligations in accordance with the terms of this Assignment and the Availability Agreement.
(g) Each Affiliate Operating Company shall, subject to the provisions of Section 2.2(c) hereof, be proportionately subrogated to all rights of the Trustee and the holders of the Twenty-seventh Series Bonds against the Company in respect of any amounts paid or advanced by such Affiliate Operating Company pursuant to the provisions of this Assignment and the Availability Agreement and applied to the payment of the Obligations Secured Hereby. Subject to the provisions of Article VII hereof, the Trustee agrees that it will not deal with the Company, or any security for the Twenty-seventh Series Bonds in such a manner as to prejudice such rights of any Affiliate Operating Company.
ARTICLE III.
Term
This Assignment 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; provided that this Assignment shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations Secured Hereby is rescinded or must otherwise be returned by the Trustee upon the insolvency, bankruptcy or reorganization of the Company, any Affiliate Operating Company or otherwise, all as though such payment had not been made. It is agreed that all the covenants and undertakings on the part of the Affiliate Operating Companies and the Company set forth in this Assignment are exclusively for the benefit of, and may be enforced only by, the Trustee or the holders of the Twenty-seventh Series Bonds, as provided in the Restated Mortgage, 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 Assignment nor the Availability Agreement nor any interest herein or therein may be assigned, transferred or encumbered by any of the parties hereto or thereto, except transfer or assignment by the Trustee to its successors in accordance with Article Ten of the Restated Mortgage, except as otherwise provided in Article I hereof and except that
(i) in the event that any Affiliate Operating 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 Assignment and the Availability Agreement shall be transferred by such Affiliate Operating 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 succeeding corporation or other person shall be substituted for such Affiliate Operating Company and shall deliver to the Company and the Trustee a written assumption, in form and
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substance satisfactory to the Trustee, of such Affiliate Operating Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such corporation or other person;
(ii) any Affiliate Operating Company may assign to one or more other Affiliate Operating Companies its obligations and liabilities under the Availability Agreement and this Assignment; provided that such Affiliate Operating Company or Companies shall assume and succeed to such obligations and liabilities under the Availability Agreement and this Assignment, be substituted for such assigning Affiliate Operating Company and such assuming Affiliate Operating Company or Companies shall deliver to the Company and the Trustee a written assumption, in form and substance satisfactory to the Trustee, of such assigning Affiliate Operating Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such assuming Affiliate Operating Company or Companies; and
(iii) 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 Assignment and the Availability 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 succeeding corporation or other person shall be substituted for the Company and shall deliver to the Trustee a written assumption, in form and substance satisfactory to the Trustee, of the Company’s obligations and liabilities under this Assignment and the Availability Agreement and an opinion of counsel to the effect that such instrument of transfer complies with the requirements hereof and thereof and constitutes a valid, legally binding and enforceable obligation of such corporation or other person.
ARTICLE V.
Amendments
5.1 Restrictions on Amendments. Neither this Assignment nor the Availability Agreement may be amended, waived, modified, discharged or otherwise changed orally. This Assignment and the Availability Agreement may be amended, waived, modified, discharged or otherwise changed only by a written instrument that has been signed by all the parties hereto, in the case of this Assignment, or by the persons specified in Section 11 of the Availability Agreement, in the case of the Availability Agreement, and that has been approved by the holders of more than 50% in principal amount of the Twenty-seventh Series Bonds Outstanding (as defined in the Restated Mortgage) at the time of such consent or that does not materially adversely affect the rights of the Trustee or the holders of the Twenty-seventh Series Bonds or that is necessary in order to qualify the Restated Mortgage under the Trust Indenture Act of 1939, as contemplated by Sections 1301 and 1302 of the Restated Mortgage; provided, however, that (i) without the written consent of the holders of all the Twenty-seventh Series Bonds
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affected thereby, no amendment, waiver, modification, discharge or other change in or to this Assignment or the Availability Agreement shall be made that shall change the terms of this Section 5.1 and (ii) no such amendment, waiver, modification, discharge or other change shall be made that shall modify, without the written consent of the Trustee, the rights, duties or immunities or the Trustee.
5.2 The Trustee’s Execution. The Trustee shall, at the written request of the Company, execute any instrument amending, waiving, modifying, discharging or otherwise changing this Assignment, or any consent to the execution of any instrument amending, waiving, modifying, discharging or otherwise changing the Availability Agreement (a) as to which the Trustee shall have received an opinion of counsel to the effect that such instrument has been duly authorized by each person executing the same and is permitted by the provisions of Section 5.1 hereof and that this Assignment, or the Availability Agreement, as the case may be, as amended, waived, modified, discharged or otherwise changed by such instrument, constitutes valid, legally binding and enforceable obligations of the Company and each of the Affiliate Operating Companies, and (b) that shall have been executed by the Company and each of the Affiliate Operating Companies. The Trustee shall be fully protected in relying upon the aforesaid opinion.
ARTICLE VI.
Notices
6.1 Notices, etc., in Writing. All notices, consents, requests and other documents authorized or permitted to be given pursuant to this Assignment 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, addressed as follows:
If to System Energy Resources, Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Arkansas, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Entergy Mississippi, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
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If to Entergy New Orleans, LLC, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to the Trustee, to:
The Bank of New York Mellon
c/o The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Barbara Zsombori, Vice President
with copies to each other party.
6.2 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 6.1 hereof, on the third day after the day of mailing. 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.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to this Assignment and delivered using Electronic Means (as defined below); provided, however, that the Company and/or an Affiliate Operating Company, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and such Affiliate Operating Company, as applicable, to reflect any additions or deletions from the listing, and if so amended, shall be delivered to the Trustee at the time, or prior to the delivery of the Instructions pursuant to this Assignment. If the Company or an Affiliate Operating Company, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company and the Affiliate Operating Companies understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Affiliate Operating Companies shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and the Affiliate Operating Companies are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and or the Affiliate Operating Companies, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions, notwithstanding if such directions conflict or are inconsistent with a subsequent written instruction. The Company and each Affiliate Operating
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Company agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company and/or an Affiliate Operating Company, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
“Electronic Means” shall mean the following communication methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
ARTICLE VII.
Enforcement
7.1 Mortgage Terms and Conditions. The Trustee enters into and accepts this Assignment upon the terms and conditions set forth in Article Ten of the Restated Mortgage with the same force and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee in respect of this Assignment and the trusts hereunder and in respect of any action taken, suffered or omitted to be taken by the Trustee hereunder. Without limiting the generality of the foregoing, the Trustee assumes no responsibility as to the validity or enforceability hereof or for the correctness of the recitals of fact contained herein or in the Availability Agreement, which shall be taken as the statements, representations and warranties of the Company and the Affiliate Operating Companies.
7.2 Enforcement Action. At any time when an Event of Default under the Restated Mortgage has occurred and is continuing, the Trustee may proceed, either in its own name and as trustee of an express trust or otherwise, to protect and enforce the rights of the Trustee and those of the Company under this Assignment and the Availability Agreement by suit in equity, action at law or other appropriate proceedings, whether for the specific performance of any covenant or agreement contained herein or in the Availability Agreement or otherwise, and whether or not the Company shall have complied with any of the provisions hereof or thereof or proceeded to take any action authorized or permitted under applicable law. Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Restated Mortgage or now or hereafter existing at law or in equity or by statute.
7.3 Attorney-in-Fact. The Company hereby constitutes the Trustee its true and lawful attorney, irrevocably, with full power (in such attorney’s name or otherwise), at any time when an Event of Default (as defined in the Restated Mortgage) has occurred and is continuing, to enforce any of the obligations contained herein or in the Availability Agreement or to take any
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action or institute any proceedings that to the Trustee may seem necessary or advisable in the premises.
ARTICLE VIII.
Severability
If any provision or provisions of this Assignment 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 IX.
Governing Law
This Assignment and, so long as this Assignment shall be in effect, the Availability Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
ARTICLE X.
Succession
Subject to Article IV hereof, this Assignment and the Availability 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 the Availability Agreement, or of any right to any funds due or to become due under this Assignment or the Availability Agreement shall in any event relieve the Company or any Affiliate Operating Company of their respective obligations hereunder.
ARTICLE XI.
Waiver of Jury Trial
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT, THE AVAILABILITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Assignment to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
ENTERGY ARKANSAS, LLC
ENTERGY MISSISSIPPI, LLC
ENTERGY NEW ORLEANS, LLC
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Barrett E. Green
Name: Barrett E. Green
Title: Vice President and Treasurer
S-1
THE BANK OF NEW YORK MELLON,
as Trustee
By: /s/Rick Fierro
Name: Rick Fierro
Title: Vice President
S-2
Exhibit 1.05
FILING PUBLIC UTILITY
System Energy Resources, Inc.
Rate Schedule FERC No. 2
System Energy Resources, Inc.
Rate Schedule FERC No. 2
PUBLIC UTILITIES RECEIVING SERVICE UNDER RATE SCHEDULE | ||
Entergy Arkansas, LLC
Entergy Mississippi, LLC
Entergy New Orleans, LLC
SERVICE TO BE PROVIDED UNDER RATE SCHEDULE
Wholesale Sale of Electric Power
Unit Power Sales Agreement
THIS AGREEMENT, made, entered into, and effective as of this 10th day of June, 1982, as amended from time to time thereafter, and as revised to comply with Federal Energy Regulatory Commission (“FERC”) Opinion Nos. 446 and 446-A and FERC Order No.614, between and among Entergy Arkansas, LLC (“EAL”), Entergy Mississippi, LLC (“EML”), Entergy New Orleans, LLC (“ENOL”) and System Energy Resources, Inc. (“System Energy”).
WITNESSETH THAT:
WHEREAS, System Energy was incorporated on February 11, 1974 under the laws of the State of Arkansas to own certain future generating capacity for the then-existing Entergy System, of which EAL, Entergy Louisiana, LLC (“ELL”), EML and ENOL (“System Companies”) were members; and
WHEREAS, System Energy has accordingly undertaken the ownership and financing of an undivided interest in, and construction of, the Grand Gulf Generating Station, a one-unit, nuclear-fueled electric generating station on the east bank of the Mississippi River near Port Gibson, Mississippi (“Project”); and
WHEREAS, the System Companies own and operate electric generating, transmission and distribution facilities in Arkansas, Louisiana and Mississippi and generate, transmit and sell electric energy both at retail and wholesale in such states; and
WHEREAS, System Energy has agreed to sell to EAL, EML, and ENOL (“Purchasers”) specified percentages of all of the capacity and energy available to System Energy from the Project, and the System Companies have agreed to join with System Energy, before the date Unit I of the Project is placed in service, in executing an agreement which will set forth in detail the terms and conditions for the sale of such capacity and energy by System Energy to the System Companies; and
WHEREAS, Unit 1 was placed in commercial operation in July 1985; and
WHEREAS, as part of the SERI settlement filed at FERC on September 12, 2024 and approved by FERC on November 25, 2024 (the “Settlement”), 189 FERC ¶ 61,143, Entergy Louisiana, LLC (“ELL”), EAL, and EML agreed as Divestiture Settling Parties to amend this Unit Power Sales Agreement to remove ELL in its entirety and to increase EML’s entitlement to energy and capacity available to System Energy from the Project by 14%; and
WHEREAS, as part of the Settlement, the Divestiture Settling Parties also agreed to amend this Unit Power Sales Agreement to reduce EAL’s then-effective entitlement to Sysetm Energy’s capacity and energy from the Project by 2.43% (which represents the share that EAL sold at the time to ELL under separate life-of-unit designated purchase power agreements), and to increase EML’s specified entitlement by the same 2.43%; and
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WHEREAS, EAL and EML desire to modify this Unit Power Sales Agreement to reflect prior life of unit designated purchase power agreements under which EAL sold a total of 6.95% of its entitlement to System Energy’s capacity and energy in order to reduce tariff administrative burdens;
NOW, THEREFORE, System Energy and the Purchasers mutually understand and agree as follows:
1.1 System Energy shall, subject to the terms and conditions of this Agreement, make available, or cause to be made available, to the Purchasers all of the capacity and energy which shall be available to System Energy at the Project, including test energy produced during the course of the construction and testing of Unit 1 of the Project (“Power”).
1.2 The Purchasers shall, subject to the terms and conditions of this Agreement, be entitled to receive all of the Power which shall be available to System Energy at the Project in accordance with their respective Entitlement Percentages. The Entitlement Percentages are as follows:
| Entitlement Percentages | |||||
| Unit No. 1 | |||||
| EAL | 24.19% | ||||
| ELL | 0% | ||||
| EML | 56.38% | ||||
| ENOL | 19.43% | ||||
100% | |||||
Under this Agreement, effective October 1, 2025, ELL is not a Purchaser.
1.3 Commencing with the earlier of (a) the date of commercial operation of the Unit or (b) December 31, 1984 and continuing monthly thereafter until this Agreement is terminated pursuant to the provisions of Section 9 hereof, in consideration of the right to receive its Entitlement Percentage of such Power from the unit, each Purchaser will pay System Energy an amount determined pursuant to the Monthly Grand Gulf Power Charge Formula, which is attached hereto as Appendix 1.
2. The performance of the obligations of System Energy hereunder shall be subject to the receipt and continued effectiveness of all authorizations of governmental regulatory authorities at the time necessary to permit System Energy to perform its duties and obligations hereunder, including the receipt and continued effectiveness of all authorizations by governmental regulatory authorities at the time necessary to permit the completion by System Energy of the construction of the Project, the operation of the Project, and for System Energy to make available to the Purchasers all of the Power available to System Energy at the Project. System Energy shall use its best efforts to secure and maintain all such authorizations by governmental regulatory authorities.
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3. System Energy shall operate and maintain the Project in accordance with good utility practice. Outages for inspection, maintenance, refueling, repairs and replacements shall be scheduled in accordance with good utility practice and, insofar as practicable, shall be mutually agreed to by System Energy and the Purchasers.
4. Delivery of Power sold to the Purchasers pursuant to this Agreement shall occur at the Project’s step-up transformer and shall be made in the form of three-phase, sixty hertz alternating current at a nominal voltage of 500 kilovolts. System Energy will supply and maintain all necessary metering equipment for determining the quantity and conditions of delivery under this Agreement. System Energy will furnish to the Purchasers such summaries of meter reading and other metering information as may reasonably be requested.
5. Monthly bills shall be calculated in accordance with the provisions of the Monthly Grand Gulf Power Charge Formula, attached hereto as Appendix 1.
6. Nothing contained herein shall be construed as affecting in any way the right of System Energy to unilaterally make application to FERC for a change in the rates contained herein or any other term or condition of this Agreement under Section 205 of the Federal Power Act and pursuant to FERC Rules and Regulations promulgated thereunder.
7. No Purchaser shall be entitled to set off against any payment required to be made by it under this Agreement (a) any amounts owed by System Energy to any Purchaser or (b) the amount of any claim by any Purchaser against System Energy. The foregoing, however, shall not affect in any other way the rights and remedies of any Purchaser with respect to any such amounts owed to any Purchaser by System Energy or any such claim by any Purchaser against System Energy.
8. The invalidity and unenforceability of any provision of this Agreement shall not affect the remaining provisions hereof.
9. This Agreement shall continue until terminated by mutual agreement of all parties hereto.
10. This Agreement shall be binding upon the parties hereto and their 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 either any Purchaser or System Energy of any of their respective obligations hereunder, or, in the case of the Purchasers, reduce to any extent their entitlement to receive all of the Power available to System Energy from time to time at the Project.
11. The agreements herein set forth have been made for the benefit of the Purchasers and System Energy and their respective successors and assigns and no other person shall acquire or have any right under or by virtue of this Agreement.
12. The Purchasers and System Energy may, subject to the provisions of this Agreement, enter into a further agreement or agreements between the Purchasers and System
4
Energy, setting forth detailed terms and provisions relating to the performance by the Purchasers and System Energy of their respective obligations under this Agreement. No agreement entered into under this Section 12 shall, however, alter to any substantive degree the obligations of any party to this Agreement in any manner inconsistent with any of the foregoing sections of this Agreement.
13. Each of the Purchasers shall, at any time and from time to time, be entitled to assign all of its right, title and interest in and to all of the power to which any of them shall be entitled under this Agreement, but no Purchaser shall, by such assignment, be relieved of any of its obligations and duties under this Agreement except through the payment to System Energy, by or on behalf of such Purchaser, of the amount or amounts which such Purchaser shall be obligated to pay pursuant to the terms of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written
SYSTEM ENERGY RESOURCES, INC., formerly MIDDLE SOUTH ENERGY, INC. By: /S/ F W. Lewis | ||
ENTERGY ARKANSAS, LLC, formerly ARKANSAS POWER AND LIGHT COMPANY By: /S/ Jerry Maulden | ||
ENTERGY LOUISIANA, LLC, formerly LOUISIANA POWER AND LIGHT COMPANY By: /S/ J. Wyatt | ||
ENTERGY MISSISSIPPI, LLC, formerly MISSISSIPPI POWER AND LIGHT COMPANY By: /S/ D. C. Lutkin | ||
ENTERGY NEW ORLEANS, LLC, formerly NEW ORLEANS PUBLIC SERVICE INC. By: /S/ James M. Cain | ||
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SYSTEM ENERGY RESOURCES, INC. MONTHLY GRAND GULF POWER CHARGE FORMULA | ||
1. GENERAL
This Grand Gulf Power Charge Formula (“PCF”) sets out the procedures that shall be used to determine the monthly amounts which System Energy Resources, Inc. (“SERI”) shall charge Entergy Arkansas, LLC (“EAL”); Entergy Mississippi, LLC (“EML”); and Entergy New Orleans, LLC (“ENOL”) (referred to hereafter, collectively, as “Purchasers”, or, individually, as “Purchaser”), for capacity and energy from the Grand Gulf Nuclear Station (“Grand Gulf”) pursuant to the Unit Power Sales Agreement (“UPSA”) between SERI and the Purchasers to which this document is attached as Appendix 1. The monthly charges for capacity (“Monthly Capacity Charges”) shall be determined in accordance with the provisions of Section 2 below. The monthly charges for fuel (“Monthly Fuel Charges”) shall be determined in accordance with the provisions of Section 3 below. The Monthly Capacity Charges and the Monthly Fuel Charges determined in accordance with the provisions of this PCF shall be billed to the Purchasers monthly in accordance with the provisions of Section 4 below.
2. MONTHLY CAPACITY CHARGE
The Monthly Capacity Charge to be billed to each of the Purchasers for any service month shall be determined by applying the Monthly Capacity Charge Formula set out in Attachment A to the applicable cost data.
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3. MONTHLY FUEL CHARGE
The Monthly Fuel Charge to be billed to each of the Purchasers for any service month shall be determined by applying the Monthly Fuel Charge Formula set out in Attachment B to fuel cost data for the service month.
4. BILLING
On or before the fifth workday of each month SERI shall render a billing to each of the Purchasers reflecting the Purchaser’s Monthly Capacity Charge and Monthly Fuel Charge for the immediately preceding service month. In addition, any applicable and appropriate adjustments shall be reflected in each of the monthly billings. The monthly billings shall be payable in immediately available funds on or before the 15th day of such month. After the 15th day of such month, interest shall accrue on any balance due to SERI, or owed by SERI, at the rate required for refunds rendered pursuant to the requirements of Section 35.19.a of the Code of Federal Regulations. Entergy Services LLC, acting as agent for SERI and the Purchasers, may prepare the necessary billings to the Purchasers and arrange for payment in accordance with the above requirements.
5. EFFECTIVE DATE AND TERM
This PCF shall be effective for service rendered on and after December 12, 1995 and shall continue in effect until modified or terminated in accordance with the provisions of this PCF or applicable regulations or laws.
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Attachment A
Page 1 of 5
SYSTEM ENERGY RESOURCES, INC. MONTHLY CAPACITY CHARGE FORMULA DETERMINATION OF MONTHLY CAPACITY CHARGES MONTH, XXXX | |||||||||||
| LINE NO | DESCRIPTION | AMOUNT | REFERENCE/SOURCE | ||||||||
| 1 | CAPACITY REVENUE REQUIREMENT | Page 3, Line 1 | |||||||||
| 2 | CREDIT, PER STIPULATION AND AGREEMENT IN DOCKET NO. FA89-28 | SERI Rate Schedule FERC No. 6 | |||||||||
| 3 | ADJUSTMENT TO REFLECT UNPROTECTED EXCESS ADIT PER TAX CUTS AND JOBS ACT OF 2017 | Attachment E | |||||||||
4 5 | ONE-TIME CREDIT BASED ON IRS DETERMINATION OF THE FORMERLY UNCERTAIN 2015 COGS TAX POSITION (1) O&M EXPENSE TRUE-UP ADJUSTMENTS PURSUANT TO THE SEPTEMBER 2022 PARTIAL SETTLEMENT(3) | Attachment G Supporting Workpapers | |||||||||
| 6 | ADJUSTED CAPACITY REVENUE REQUIREMENT | Line 1 — Line 2 — Line 3 – Line 4 – Line 5 | |||||||||
| 7 | MONTHLY CAPACITY CHARGE FOR EAL (4) | 24.19% * Line 6 | |||||||||
| 8 | [RESERVED] | ||||||||||
| 9 | MONTHLY CAPACITY CHARGE FOR EML (2) | 56.38% * Line 6 | |||||||||
| 10 | MONTHLY CAPACITY CHARGE FOR ENOL (5) | 19.43% * Line 6 | |||||||||
NOTES:
(1) THE CREDIT IS EQUAL TO THE CUMULATIVE EFFECT ON THE REVENUE REQUIREMENT FROM JANUARY 1, 2016, THROUGH SEPTEMBER 30, 2020, INCLUSIVE OF INTEREST PER 18 C.F.R. § 35.19A THROUGH MARCH 15, 2021, ASSUMING THE AMOUNT OF THE 2015 COST OF GOODS SOLD TAX POSITION ACTUALLY ALLOWED BY THE IRS HAD BEEN TREATED AS CERTAIN WHEN ASSERTED.
(2) PURSUANT TO THE JUNE 2022 SETTLEMENT IN DOCKET NOS. EL17-41 ET AL., BEGINNING WITH BILLS FOR THE JULY SERVICE MONTHLY CAPACITY CHARGE FOR EML SHALL BE ADJUSTED TO REFLECT:
a. A COMMON EQUITY COST OF 9.65%; AND
b. A CAPITALIZATION RATIO THAT SHALL NOT EXCEED 52.0% COMMON EQUITY.
THESE ADJUSTMENTS SHALL HAVE NO EFFECT ON THE MONTHLY CAPACITY CHARGE FOR EAL OR ENOL. A WORKPAPER SUPPORTING THE TOTAL ADJUSTMENT AND FINAL EML MONTHLY CAPACITY CHARGES SHALL BE INCLUDED IN THE FILES PRODUCED ANNUALLY PURSUANT TO THE PROTOCOLS PROCESS.
(3) INCLUDE ON AN ANNUAL BASIS ADJUSTMENTS TO EXCLUDED EXPENSES DURING THE PRECEDING YEAR MADE PURSUANT TO THE SEPTEMBER 2022 SETTLEMENT IN DOCKET NO. EL20-72. AS PROVIDED IN ATTACHMENT A, PAGES 3 & 3.1, NOTE 3, ANY ADJUSTMENT ESTIMATED ON A MONTHLY BASIS BASED ON PRIOR YEAR’S DATA WILL BE REVIEWED AND TRUED UP ON AN ANNUAL BASIS.
(4) PURSUANT TO THE NOVEMBER 2023 SETTLEMENT IN DOCKET NOS. EL17-41 ET AL., BEGINNING WITH BILLS FOR NOVEMBER 2023 SERVICE, MONTHLY CAPACITY CHARGE FOR EAL SHALL BE ADJUSTED TO REFLECT:
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Attachment A
Page 1.1 of 5
a. A COMMON EQUITY COST OF 9.65%; AND
b. A CAPITALIZATION RATIO THAT SHALL NOT EXCEED 52.0% COMMON EQUITY.
THESE ADJUSTMENTS SHALL HAVE NO EFFECT ON THE MONTHLY CAPACITY CHARGE FOR EML OR ENOL. A WORKPAPER SUPPORTING THE TOTAL ADJUSTMENT AND FINAL EAL MONTHLY CAPACITY CHARGES SHALL BE INCLUDED IN THE FILES PRODUCED ANNUALLY PURSUANT TO THE PROTOCOLS PROCESS.
(5) PURSUANT TO THE MAY 2024 SETTLEMENT IN DOCKET NOS. EL17-41 ET AL., BEGINNING WITH BILLS FOR JUNE 2024 SERVICE, MONTHLY CAPACITY CHARGE FOR ENOL SHALL BE ADJUSTED TO REFLECT:
a. A COMMON EQUITY COST OF 9.65%; AND
b. A CAPITALIZATION RATIO THAT SHALL NOT EXCEED 52.0% COMMON EQUITY.
THESE ADJUSTMENTS SHALL HAVE NO EFFECT ON THE MONTHLY CAPACITY CHARGE FOR EML OR EAL. A WORKPAPER SUPPORTING THE TOTAL ADJUSTMENT AND FINAL ENOL MONTHLY CAPACITY CHARGES SHALL BE INCLUDED IN THE FILES PRODUCED ANNUALLY PURSUANT TO THE PROTOCOLS PROCESS.
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Attachment A
Page 2 of 5
SYSTEM ENERGY RESOURCES, INC. MONTHLY CAPACITY CHARGE FORMULA DEVELOPMENT OF RATE BASE (1) MONTH, XXXX | |||||||||||
| LINE NO | DESCRIPTION | AMOUNT | REFERENCE/SOURCE | ||||||||
| 1 | PLANT IN SERVICE | FERC Accounts 101, 106 (2) | |||||||||
| 2 | ACCUMULATED DEPRECIATION & AMORTIZATION | FERC Accounts 108, 111 (3) | |||||||||
| 3 | NET UTILITY PLANT | Line 1 Plus Line 2 | |||||||||
| 4 | NUCLEAR FUEL | FERC Accounts 120.2-120.4 | |||||||||
| 5 | AMORTIZATION OF NUCLEAR FUEL | FERC Account 120.5 | |||||||||
| 6 | MATERIALS & SUPPLIES | FERC Accounts 154, 163 | |||||||||
| 7 | PREPAYMENTS | FERC Account 165 | |||||||||
| 8 | DEFERRED REFUELING OUTAGE COSTS | FERC Account 182.3 | |||||||||
9 10 11 | ACCUMULATED DEFERRED INCOME TAXES PREPAID (ACCRUED) PENSION COSTS SALE-LEASEBACK RENTAL PAYMENTS COLLECTED IN ADVANCE OF PAYMENT TO OWNER-LESSORS | FERC Accounts 190, 281, 282, 283 (4) FERC Accounts 182.38P& 253.012 (5) FERC Account 232 (6) | |||||||||
| 12 | RATE BASE | Sum of Lines 3 – 11 | |||||||||
| NOTES: | ||||||||
| (1) | TO BE DETERMINED BASED ON DATA AS OF THE END OF THE MONTH IMMEDIATELY PRECEDING THE CURRENT SERVICE MONTH. | |||||||
| (2) | PRIOR TO INCLUDING CWIP, INCLUSIVE OF AFUDC, IN PLANT IN SERVICE AND RATE BASE, SERI WILL CALCULATE THE AFUDC RATE, EFFECTIVE JANUARY 1, 2023, CONSISTENT WITH THE METHODOLOGY APPROVED BY THE COMMISSION IN DOCKET NO. ER23-625-000. | |||||||
| (3) | THE BALANCE FOR ACCUMULATED DEPRECIATION AND AMORTIZATION IS TO BE REDUCED BY ANY DECOMMISSIONING RESERVE AND RESERVE FOR DISPOSAL OF NUCLEAR FUEL INCLUDED IN FERC ACCOUNTS 108 AND 111 WHICH REPRESENT MONIES HELD BY THIRD PARTIES. | |||||||
| (4) | INCLUDING ADIT RESULTING FROM IRS RESOLUTION OF THE 2015 TAX POSITION TO INCLUDE THE DECOMMISSIONING LIABILITY IN COST OF GOODS SOLD. | |||||||
| (5) | PREPAID (ACCRUED) PENSION COSTS INCLUDES ACCOUNTS 253012 - PENSION LIABILITY - FUNDED STATUS, 18238P - REGULATORY ASSET FOR UNRECOGNIZED LOSSES AND POTENTIALLY ACCOUNT 254 - REGULATORY LIABILITY FOR UNRECOGNIZED GAINS. | |||||||
| (6) | PURSUANT TO THE SEPTEMBER 2022 SETTLEMENT IN DOCKET NO. EL20-72, BEGINNING WITH BILLS FOR THE OCTOBER 2022 SERVICE MONTH, THE BALANCE IN ACCOUNT 232 FOR THE MONTHLY SALE-LEASEBACK LEASE PAYMENTS COLLECTED IN ADVANCE OF PAYMENT BY SERI TO THE OWNER-LESSORS SHALL BE USED TO REDUCE RATE BASE. PURSUANT TO THE COMMISSION’S DECEMBER 23, 2022 ORDER IN DOCKET NO. EL18-152, SALE-LEASEBACK RENEWAL COSTS ARE EXCLUDED FROM RATES CHARGED TO EAL AND ENO, AND LINE NO. 11 WILL NO LONGER BE INCLUDED IN RATES CHARGED TO THOSE PURCHASERS. FOR THE REMAINING TERM OF THE SALE-LEASEBACK RENEWAL, RATES CHARGED TO EML WILL CONTINUE TO INCLUDE THE CREDIT DESCRIBED FOR LINE NO. 11. | |||||||
11
Attachment A
Page 3 of 5
SYSTEM ENERGY RESOURCES, INC. MONTHLY CAPACITY CHARGE FORMULA DEVELOPMENT OF CAPACITY REVENUE REQUIREMENT (1) MONTH, XXXX | |||||||||||
| LINE NO | DESCRIPTION | AMOUNT | REFERENCE/SOURCE | ||||||||
| 1 | CAPACITY REVENUE REQUIREMENT | Determined as described in Note 2 below. | |||||||||
| 2 | OPERATION & MAINTENANCE EXPENSE (3) | FERC Accounts 517, 519-525, 528-532, 556, 557, 560-573, 901-905, 920-931, 935 | |||||||||
| 3 | DEPRECIATION EXPENSE | FERC Account 403-Excluding Decommissioning Exp | |||||||||
| 4 | DECOMMISSIONING EXPENSE (4) | FERC Account 403-Decommissioning Expense | |||||||||
| 5 | AMORTIZATION EXPENSE | FERC Accounts 404, 407.3, 407.4 | |||||||||
| 6 | TAXES OTHER THAN INCOME TAXES | FERC Account 408.1 | |||||||||
| 7 | CURRENT STATE INCOME TAX | Page 4, Line 18 | |||||||||
| 8 | CURRENT FEDERAL INCOME TAX | Page 4, Line 25 | |||||||||
| 9 | PROVISION FOR DEFERRED INCOME TAX-STATE | State Portion of FERC Accounts 410.1, 411.1 (5) | |||||||||
| 10 | PROVISION FOR DEFERRED INCOME TAX-FEDERAL | Federal Portion of FERC Accounts 410.1, 411.1 (5) | |||||||||
| 11 | INVESTMENT TAX CREDIT-NET | FERC Account 411.4 | |||||||||
| 12 | GAINS/LOSSES ON DISPOSITION OF UTILITY PLANT | FERC Accounts 411.6, 411.7 | |||||||||
| 13 | UTILITY OPERATING EXPENSES | Sum of Lines 2 – 12 | |||||||||
| 14 | UTILITY OPERATING INCOME | Line 1 minus Line 13 | |||||||||
| 15 | VERIFICATION: | ||||||||||
| 16 | RATE BASE | Page 1, Line 12 | |||||||||
| 17 | RATE OF RETURN ON RATE BASE | 12*(Line 14 / Line 16) (Must equal Line 18) | |||||||||
| 18 | COST OF CAPITAL | Weighted Cost Rate from Page 5, Line 6 | |||||||||
| NOTES: | |||||
| 1) | ALL EXPENSES ARE TO BE THOSE FOR THE CURRENT SERVICE MONTH. | ||||
| 2) | THE CAPACITY REVENUE REQUIREMENT FOR THE SERVICE MONTH IS THE VALUE THAT RESULTS IN A UTILITY OPERATING INCOME WHICH, WHEN DIVIDED BY THE RATE BASE (DETERMINED IN ACCORDANCE WITH PAGE 2) AND MULTIPLIED BY 12 PRODUCES A RATE OF RETURN ON RATE BASE EQUAL TO THE COST OF CAPITAL (DETERMINED IN ACCORDANCE WITH PAGE 5). PLEASE NOTE FOR EML, THE COST OF CAPITAL IS DETERMINED PURSUANT TO THE JUNE 2022 SETTLEMENT IN DOCKET NOS. EL17-41 ET AL., BEGINNING WITH BILLS FOR THE JULY 2022 SERVICE MONTH. SEE NOTE 10 ON ATTACHMENT A, PAGE 5. | ||||
12
Attachment A
Page 3.1 of 5
| 3) | EXCLUSIVE OF FUEL EXPENSE IN FERC ACCOUNT 518. IN ADDITION, PURSUANT TO THE SEPTEMBER 2022 SETTLEMENT IN DOCKET NO. EL20-72, BEGINNING WITH BILLS FOR THE OCTOBER 2022 SERVICE MONTH: (A) INCLUSION OF AIRCRAFT COSTS THAT ARE OR SHOULD PROPERLY BE RECORDED IN ACCOUNTS 517, 519-525, 528-532, 556, 557, 560-573, 901-905, 920-931, 935 SHALL BE LIMITED TO COSTS ALLOCATED TO SERI VIA DIRECT ASSIGNMENT PROJECT CODE AND COSTS ALLOCATED VIA NUCLEAR-BASED PROJECT CODE; SHALL EXCLUDE COST CODES FOR UNREGULATED NUCLEAR PLANTS; AND SHALL BE SUBJECT TO A CAP OF NO MORE THAN $1,500 PER PERSON PER FLIGHT (APPLIED PRIOR TO THE ALLOCATION OF THE FLIGHT’S COST ACROSS BUSINESS UNITS); (B) ANNUAL INCENTIVE PLAN EXPENSES THAT ARE OR SHOULD PROPERLY BE RECORDED IN ACCOUNT 920 AND ANY NUCLEAR OPERATING AND MAINTENANCE EXPENSE ACCOUNT (ACCOUNTS 517-525, 528-532) SHALL BE REDUCED TO EXCLUDE THE PORTION OF ANNUAL INCENTIVE PLAN EXPENSES AWARDED BASED ON FINANCIAL GOALS AND ALLOCATED TO SERI; (C) LONG TERM INCENTIVE PLAN EXPENSES THAT ARE OR SHOULD PROPERLY BE RECORDED IN ACCOUNT 920 AND ANY NUCLEAR OPERATING AND MAINTENANCE EXPENSE ACCOUNT (ACCOUNTS 517-525, 528-532) SHALL BE REDUCED TO EXCLUDE EXPENSES FOR STOCK OPTIONS, RESTRICTED STOCK AWARDS, AND PERFORMANCE UNIT AWARDS FOR MANAGEMENT LEVEL 1 THROUGH 4 EMPLOYEES; (D) INCLUSION OF ADVERTISING EXPENSES RECORDED IN ACCOUNT 930.1 SHALL BE LIMITED TO EXPENSES FOR SAFETY-BASED ADVERTISING. MONTHLY ESTIMATES OF EXCLUSIONS FOR THESE ISSUES SHALL BE INCLUDED BASED ON THE PRIOR SERVICE YEAR’S DATA AND SHALL BE TRUED UP NO LATER THAN MARCH 31 OF THE YEAR FOLLOWING THE SERVICE YEAR. SUPPORTING WORKPAPERS FOR THE ADJUSTMENT(S) WILL BE PROVIDED PURSUANT TO SECTION II.B.6(C) OF THE ANNUAL FORMULA RATE PROTOCOLS. PURSUANT TO THE COMMISSION’S DECEMBER 23, 2022 ORDER IN DOCKET NO. EL18-152, SALE-LEASEBACK RENEWAL COSTS (RECORDED IN ACCOUNT 931) ARE EXCLUDED FROM RATES CHARGED TO EAL AND ENO; HOWEVER, RATES CHARGED TO EML WILL CONTINUE TO INCLUDE 33% OF SERI’S SALE-LEASEBACK RENEWAL RENTAL COSTS FOR THE REMAINING TERM OF THE SALE-LEASEBACK RENEWAL. | ||||
| 4) | SHOULD THE FERC APPROVE A CHANGE IN SYSTEM ENERGY’S SCHEDULE OF ANNUAL DECOMMISSIONING EXPENSES DURING THE SERVICE MONTH, THE MONTHLY LEVEL IN EFFECT AS OF THE END OF THE MONTH SHALL BE UTILIZED. OTHERWISE, THE AMOUNT CHARGED TO FERC ACCOUNT 403 FOR THE SERVICE MONTH SHALL BE UTILIZED, AS SHOWN ON ATTACHMENT C. | ||||
| 5) | RESTRICTED TO THOSE ITEMS FOR WHICH CORRESPONDING TIMING DIFFERENCES ARE INCLUDED IN THE ADJUSTMENTS TO NET INCOME BEFORE INCOME TAX (SEE PAGE 4, LINE 10). | ||||
13
Attachment A
Page 4 of 5
SYSTEM ENERGY RESOURCES, INC. MONTHLY CAPACITY CHARGE FORMULA DEVELOPMENT OF CURRENT INCOME TAX EXPENSE MONTH, XXXX | |||||||||||
| LINE NO | DESCRIPTION | AMOUNT | REFERENCE/SOURCE | ||||||||
| 1 | CAPACITY REVENUE REQUIREMENT | Page 3, Line 1 | |||||||||
| 2 | OPERATION 8, MAINTENANCE EXPENSE | Page 3, Line 2 | |||||||||
| 3 | DEPRECIATION EXPENSE | Page 3, Line 3 | |||||||||
| 4 | DECOMMISSIONING EXPENSE | Page 3, Line 4 | |||||||||
| 5 | AMORTIZATION EXPENSE | Page 3, Line 5 | |||||||||
| 6 | TAXES OTHER THAN INCOME | Page 3, Line 6 | |||||||||
| 7 | NET INCOME BEFORE INCOME TAXES | Line 1 - (Sum of Lines 2-6) | |||||||||
| 8 | ADJUSTMENTS TO NET INCOME BEFORE INCOME TAX: | ||||||||||
| 9 | INTEREST SYNCHRONIZATION | Rate Base (Page 1, Line 12) * (-1) * Total Debt Rate (Page 5, Line 4)/12 | |||||||||
| 10 | OTHER ADJUSTMENTS | See Note 1 | |||||||||
| 11 | TOTAL ADJUSTMENTS | Line 9 plus Line 10 | |||||||||
| 12 | TAXABLE INCOME | Line 7 plus Line 11 | |||||||||
| COMPUTATION OF STATE INCOME TAX | |||||||||||
| 13 | STATE TAXABLE INCOME BEFORE ADJUSTMENTS | Line 12 | |||||||||
| 14 | NET ADJUSTMENT TO STATE TAXABLE INCOME | See Note 1 | |||||||||
| 15 | STATE TAXABLE INCOME | Line 13 plus Line 14 | |||||||||
| 16 | STATE INCOME TAX BEFORE ADJUSTMENTS | Line 15 * Mississippi State Tax Rate (2) | |||||||||
| 17 | ADJUSTMENTS TO STATE TAX | See Note 1 | |||||||||
| 18 | CURRENT STATE INCOME TAX | Sum of Lines 16 - 17 | |||||||||
| COMPUTATION OF FEDERAL INCOME TAX | |||||||||||
| 19 | FEDERAL TAXABLE INCOME BEFORE ADJUSTMENTS | Line 12 | |||||||||
| 20 | CURRENT STATE INCOME TAX DEDUCTION | Line 18 (Shown as deduction) | |||||||||
| 21 | OTHER ADJUSTMENTS TO FEDERAL TAXABLE INCOME | See Note 1 | |||||||||
| 22 | FEDERAL TAXABLE INCOME | Sum of Lines 19-21 | |||||||||
| 23 | FEDERAL INCOME TAX BEFORE ADJUSTMENTS | Line 22 * Federal Tax Rate (2) | |||||||||
| 24 | ADJUSTMENTS TO FEDERAL TAX | See Note 1 and Note 3 | |||||||||
| 25 | CURRENT FEDERAL INCOME TAX | Sum of Lines 23 - 24 | |||||||||
| NOTES: | |||||
| 1) | ITEMS FROM MONTHLY TAX DETERMINATION THAT ARE APPROPRIATE FOR RATEMAKING PURPOSES. | ||||
| 2) | RATE IN EFFECT AT THE END OF THE SERVICE MONTH. | ||||
| 3) | INCLUDING A ONE-TIME CREDIT OF EXCESS DEFERRED FEDERAL INCOME TAXES RESULTING FROM IRS RESOLUTION OF THE 2015 TAX POSITION TO INCLUDE THE DECOMMISSIONING LIABILITY IN COST OF GOODS SOLD. | ||||
14
Attachment A
Page 5 of 5
SYSTEM ENERGY RESOURCES, INC. MONTHLY CAPACITY CHARGE FORMULA DEVELOPMENT OF COST OF CAPITAL (1) MONTH, XXXX | |||||||||||||||||
| LINE NO | CAPITAL SOURCE | CAPITAL AMOUNT (2)(3) | CAPITALIZATION RATIO (4) | COST RATE | WEIGHTED COST RATE (8) | ||||||||||||
| 1 | DEBT | ||||||||||||||||
| 2 | LONG TERM | FERC Accts 221, 224, 225, 226, 181, 189 | (5) | ||||||||||||||
| 3 | SHORT TERM | (6) | |||||||||||||||
| 4 | TOTAL TERM | (7) | |||||||||||||||
| 5 | COMMON EQUITY | FERC Accts 201, 208, 216 | (SEE NOTE 9) | ||||||||||||||
| 6 | TOTAL | NA | |||||||||||||||
| NOTES: | ||||||||
| (1) | TO BE DETERMINED BASED ON DATA AS OF THE END OF THE MONTH IMMEDIATELY PRECEDING THE CURRENT SERVICE MONTH. | |||||||
| (2) | LONG TERM DEBT SHALL INCLUDE ALL ISSUES AND REFLECT THE PRINCIPAL AMOUNT. | |||||||
| (3) | SHORT TERM DEBT SHALL INCLUDE ONLY THAT PORTION NOT REFLECTED IN THE CALCULATION OF SERI’S RATE FOR ALLOWANCE FOR FUNDS USED DURING CONSTRUCTION. | |||||||
| (4) | APPLICABLE CAPITAL AMOUNT DIVIDED BY THE TOTAL CAPITAL AMOUNT. | |||||||
| (5) | AVERAGE COST RATE FOR ALL OUTSTANDING ISSUES INCLUDING APPLICABLE AMORTIZATION OF DEBT DISCOUNT, PREMIUM, AND EXPENSE TOGETHER WITH AMORTIZATION OF LOSS OR GAIN ON REACQUIRED DEBT. | |||||||
| (6) | THE AVERAGE COST RATE FOR ELIGIBLE SHORT TERM DEBT. | |||||||
| (7) | WEIGHTED AVERAGE COST RATE FOR LONG TERM DEBT AND SHORT TERM DEBT. | |||||||
| (8) | CAPITALIZATION RATIO FOR THE APPLICABLE CAPITAL SOURCE MULTIPLIED BY THE CORRESPONDING COST RATE. | |||||||
| (9) | THE COMMON EQUITY COST RATE SHALL BE AS FOLLOWS: | |||||||
A. FOR SERVICE FROM DECEMBER 12, 1995 THROUGH JULY 30, 2000 THE RATE SHALL BE 10.58%. | ||||||||
B. FOR SERVICE AFTER JULY 30, 2000 THE RATE SHALL BE 10.94%. | ||||||||
15
Attachment B
SYSTEM ENERGY RESOURCES, INC. MONTHLY FUEL CHARGE FORMULA MONTH, XXXX | |||||||||||
| LINE NO | DESCRIPTION | AMOUNT | REFERENCE/SOURCE | ||||||||
| 1 | FUEL EXPENSE FOR APPLICABLE SERVICE MONTH | FERC Account 518 | |||||||||
| 2 | MONTHLY FUEL CHARGE FOR EAL | 24.19% * Line 1 | |||||||||
| 3 | [RESERVED] | ||||||||||
| 4 | MONTHLY FUEL CHARGE FOR EML | 56.38% * Line 1 | |||||||||
| 5 | MONTHLY FUEL CHARGE FOR ENOL | 19.43% * Line 1 | |||||||||
16
Attachment C
System Energy Resources, Inc. Grand Gulf Decommissioning Model Revenue Requirement Summary ($000) | ||||||||||||||
| Revenue Requirement | ||||||||||||||
| Line No. | Year | Owned Portion | Leased Portion | Total | ||||||||||
| 1 | 1995 | 6,813 | 1,208 | 8,021 | ||||||||||
| 2 | 1996 | 11,195 | 1,997 | 13,192 | ||||||||||
| 3 | 1997 | 11,195 | 1,997 | 13,192 | ||||||||||
| 4 | 1998 | 11,195 | 1,997 | 13,192 | ||||||||||
| 5 | 1999 | 11,195 | 1,997 | 13,192 | ||||||||||
| 6 | 2000 | 11,195 | 1,997 | 13,192 | ||||||||||
| 7 | 2001 | 13,624 | 2,431 | 16,055 | ||||||||||
| 8 | 2002 | 13,624 | 2,431 | 16,055 | ||||||||||
| 9 | 2003 | 13,624 | 2,431 | 16,055 | ||||||||||
| 10 | 2004 | 13,624 | 2,431 | 16,055 | ||||||||||
| 11 | 2005 | 13,624 | 2,431 | 16,055 | ||||||||||
| 12 | 2006 | 16,590 | 2,960 | 19,550 | ||||||||||
| 13 | 2007 | 16,590 | 2,960 | 19,550 | ||||||||||
| 14 | 2008 | 16,590 | 2,960 | 19,550 | ||||||||||
| 15 | 2009 | 16,590 | 2,960 | 19,550 | ||||||||||
| 16 | 2010 | 16,590 | 2,960 | 19,550 | ||||||||||
| 17 | 2011 | 20,184 | 3,601 | 23,785 | ||||||||||
| 18 | 2012 | 20,184 | 3,601 | 23,785 | ||||||||||
| 19 | 2013 | 20,184 | 3,601 | 23,785 | ||||||||||
| 20 | 2014 | 20,184 | 3,601 | 23,785 | ||||||||||
| 21 | 2015 | 20,184 | 2,101 | 22,285 | ||||||||||
| 22 | 2016 | 24,550 | 0 | 24,550 | ||||||||||
| 23 | 2017 | 18,412 | 0 | 18,412 | ||||||||||
| 24 | 2018 | 0 | 0 | 0 | ||||||||||
| 25 | 2019 | 0 | 0 | 0 | ||||||||||
| 26 | 2020 | 0 | 0 | 0 | ||||||||||
| 27 | 2021 | 0 | 0 | 0 | ||||||||||
| 28 | 2022 | 0 | 0 | 0 | ||||||||||
| 29 | 2023 | 0 | 0 | 0 | ||||||||||
| 30 | 2024 | 0 | 0 | 0 | ||||||||||
| 31 | 2025 | 0 | 0 | 0 | ||||||||||
| 32 | 2026 | 0 | 0 | 0 | ||||||||||
| 33 | 2027 | 0 | 0 | 0 | ||||||||||
| 34 | 2028 | 0 | 0 | 0 | ||||||||||
| 35 | 2029 | 0 | 0 | 0 | ||||||||||
| 36 | 2030 | 0 | 0 | 0 | ||||||||||
| 37 | 2031 | 0 | 0 | 0 | ||||||||||
17
Attachment C
System Energy Resources, Inc. Grand Gulf Decommissioning Model Revenue Requirement Summary ($000) | ||||||||||||||
| Revenue Requirement | ||||||||||||||
| Line No. | Year | Owned Portion | Leased Portion | Total | ||||||||||
| 38 | 2032 | 0 | 0 | 0 | ||||||||||
| 39 | 2033 | 0 | 0 | 0 | ||||||||||
| 40 | 2034 | 0 | 0 | 0 | ||||||||||
| 41 | 2035 | 0 | 0 | 0 | ||||||||||
| 42 | 2036 | 0 | 0 | 0 | ||||||||||
| 43 | 2037 | 0 | 0 | 0 | ||||||||||
| 44 | 2038 | 0 | 0 | 0 | ||||||||||
| 45 | 2039 | 0 | 0 | 0 | ||||||||||
| 46 | 2040 | 0 | 0 | 0 | ||||||||||
| 47 | 2041 | 0 | 0 | 0 | ||||||||||
| 48 | 2042 | 0 | 0 | 0 | ||||||||||
| 49 | 2043 | 0 | 0 | 0 | ||||||||||
| 50 | 2044 | 0 | 0 | 0 | ||||||||||
18
Attachment D
19
Attachment D
20
Attachment E
21
Attachment G
System Energy Resources, Inc.
One-Time Credit (1)
Payable in the February 2021 Service Month Billing
FERC Interest Through March 15, 2021
Description | Amount | |||||||
Revenue Requirement Principal Amount | $22,195,965 | |||||||
FERC Interest | 3,049,923 | |||||||
Total One-Time Credit (2) | $25,245,888 | |||||||
Notes:
(1) The credit is equal to the cumulative effect on the revenue requirement from January 1, 2016, through September 30, 2020, inclusive of interest per 18 C.F.R. § 35.19a through March 15, 2021, assuming the amount of the 2015 Cost of Goods Sold Tax Position actually allowed by the IRS had been treated as certain when asserted.
(2) The Total One-Time Credit is included on Attachment A, Page 1, Line 4.
22
Attachment: Protocols
Formula Rate Protocols
Section I. Applicability
The following Information Exchange and Challenge Procedures shall apply to the SERI
UPSA.
Section II. Copies of UPSA Bills
A. SERI will provide Grand Gulf monthly bills for each calendar year beginning with calendar year 2019, together with information and workpapers that show how the bills were determined, to the designated representatives of the APSC, CNO, and MPSC (“Interested Parties”) not later than March 31 of the following year (“Annual Bills”). The bills and workpapers will be provided for all formula rate inputs such that customers can determine which Uniform System of Accounts are included and excluded from recovery through the UPSA, in native format with working formulas intact. These workpapers will identify which SERI trial balance accounts and/or sub-accounts are being excluded from the formula rate input amounts, when the amount reported in SERI’s Form No. 1 differs in any respect from the amount to be collected from customers. The UPSA workpapers will be in a format similar to the supporting workpapers (designated as a WP) included in each Entergy Operating Company’s MISO Attachment O transmission formula rate. SERI will also make the bills and workpapers available for public viewing by posting such information to the Entergy website not later than March 31. Annually, SERI will also report in its FERC Form No. 1 on schedule page 106b “Information on Formula Rates Formula Rate Variances” or on the applicable FERC Form No. 1 schedule page, detailed information regarding which SERI trial balance accounts and/or sub-accounts and the related account/sub-
Protocols-1
Attachment: Protocols
account balances that have been excluded from the UPSA formula rate inputs and differ from the amounts reported in SERI’s FERC Form No. 1.
B. The Annual Bills provided by SERI will:
1. Include a workable data-populated formula and underlying workpapers in native format with all formulas and links intact.
2. Provide the formula rate calculations and all inputs thereto, as well as supporting documentation and workpapers for data that are used in the formula rate.
3. Provide sufficient information to enable Interested Parties to replicate the calculation of the formula.
4. With respect to any change in accounting that affects inputs to the formula rate or the resulting charges billed under the formula rate (“Accounting Change”), identify and explain any Accounting Changes, including
a. The initial implementation of an accounting standard or policy;
b. the initial implementation of accounting practices for unusual or unconventional items where FERC has not provided specific accounting direction;
c. correction of errors and prior period adjustments that impact the revenue requirement;
d. the implementation of new estimation methods or policies that change prior estimates; and
e. changes to income tax elections.
Protocols-2
Attachment: Protocols
5. SERI must identify all items included in the Annual Bills at an amount other than on a historical cost basis (e.g., fair value adjustments).
6. On or before June 15 of each year, SERI shall provide the interested parties with the following:
a. The underlying data and calculations, with an accompanying narrative, reconciling any differences between the inputs shown on the monthly UPSA bills for the prior calendar year and the corresponding accounts on SERI's FERC Form No. 1.
b. The Annual Prepaid (Accrued) Pension Cost Workpaper (Pension Cost WP) detailing the determination of Prepaid (Accrued) Pension Cost in support of Attachment A, Page 2, Line 10 as of December 31 of the prior calendar year.
c. The O&M Expense True-Up Workpapers detailing the annual true-up of excluded expenses in support of Attachment A, Page 1, Line 5. With respect to the adjustments for executive annual incentive plan expenses, these workpapers shall include the table depicting the percentage of annual incentive plan expenses that are awarded to Entergy Services, LLC employees, based on financial-metrics for the prior service year; this percentage shall be used to calculate the exclusion of such costs that are billed to SERI.
7. On or before May 1 of each year, SERI shall make an Informational Filing with FERC providing the details of the year-end, actuarially determined Prepaid (Accrued) Pension Cost as of December 31 of the preceding calendar year.
Protocols-3
Attachment: Protocols
C. SERI shall hold an open meeting among Interested Parties (“Annual Meeting”) between the date SERI provides the Annual Bills and a date that is no later than July 1. No less than seven (7) days prior to such Annual Meeting, SERI shall provide notice to the Interested Parties of the time, date, and location of the Annual Meeting. The Annual Meeting shall (i) permit SERI to explain and clarify its Annual Bills and (ii) provide Interested Parties an opportunity to seek information and clarifications from SERI about the Annual Bills.
Section III. Information Exchange Procedures
Each set of Annual Bills shall be subject to the following information exchange procedures (“Information Exchange Procedures”):
A. Interested Parties shall have until October 1 (unless such period is extended with the written consent of SERI or by FERC) to serve reasonable information and document requests on SERI (“Information Exchange Period”). If October 1 falls on a weekend or a holiday recognized by FERC, the deadline for submitting all information and document requests shall be extended to the next business day. Such information and document requests shall be limited to what is necessary to determine:
(1) the extent or effect of an Accounting Change;
(2) whether the Annual Bills fail to include data properly recorded in accordance with these protocols;
(3) the proper application of the UPSA formula and procedures in these protocols;
(4) the accuracy of data and consistency with the UPSA formula of the charges shown in the Annual Bills;
Protocols-4
Attachment: Protocols
(5) the prudence of actual costs and expenditures;
(6) the effect of any change to the underlying Uniform System of Accounts or FERC Form No. 1;
(7) the addition to or deletion from any account/subaccount or detailed input in a workpaper due to an Accounting Change or such other changes implemented during the previous calendar year; or
(8) any other information that may reasonably have substantive effect on the calculation of the charges pursuant to the UPSA formula.
The information and document requests shall not otherwise be directed to ascertaining whether the formula rate is just and reasonable.
B. SERI shall make a good faith effort to respond to information and document requests pertaining to the Annual Bills within fifteen (15) business days of receipt of such requests. SERI shall respond to all information and document requests by no later than October 31, unless the Information Exchange Period is extended by SERI or FERC.
C. SERI shall not claim that responses to information and document requests provided pursuant to these protocols are subject to any settlement privilege in any subsequent FERC proceeding addressing the UPSA.
Section IV. Challenge Procedures
A. Interested Parties shall have until November 21 (unless such period is extended with the written consent of SERI or by FERC order) to review the inputs, supporting explanations, allocations, and calculations and to notify SERI in writing, which may be made electronically, of any specific Informal Challenges. The period of time from
Protocols-5
Attachment: Protocols
receipt of copies of the Annual Bills on March 31 until November 21 shall be referred to as the Review Period. If November 21 falls on a weekend or a holiday recognized by FERC, the deadline for submitting all Informal Challenges shall be extended to the next business day. Failure to pursue an issue through an Informal Challenge or to lodge a Formal Challenge regarding any issue with the current set of Annual Bills shall bar pursuit of such issue in a Challenge Procedure as set forth in these protocols with respect to that Annual Bill cycle, but shall not bar pursuit of such issue or the lodging of a Formal Challenge as to such issue as it relates to subsequent Annual Bills.
B. A party submitting an Informal Challenge to SERI must specify the inputs, supporting explanations, allocations, calculations, or other information to which it objects, and provide an appropriate explanation and documents to support its challenge. SERI shall make a good faith effort to respond to any Informal Challenge within twenty (20) business days of notification of such challenge. SERI shall appoint a senior representative to work with the party that submitted the Informal Challenge (or its representative) toward a resolution of the challenge. If SERI disagrees with such challenge, SERI will provide the Interested Party(ies) with an explanation supporting the inputs, supporting explanations, allocations, calculations, or other information. No Informal Challenge may be submitted after November 21, and SERI must respond to all Informal Challenges by no later than December 21, unless the Review Period is extended by SERI or FERC.
C. Formal Challenges shall be filed pursuant to these protocols and shall satisfy all of the following requirements.
(1) A Formal Challenge shall:
Protocols-6
Attachment: Protocols
(a) Clearly identify the action or inaction which is alleged to violate the filed UPSA formula or protocols;
(b) Explain how the action or inaction violates the filed UPSA formula or protocols;
(c) Set forth the business, commercial, economic, or other issues presented by
the action or inaction as such relate to or affect the party filing the Formal Challenge, including:
(i) The extent or effect of an Accounting Change;
(ii) Whether the Annual Bills fail to include data properly recorded in accordance with these protocols;
(iii) The proper application of the UPSA formula and procedures in these protocols;
(iv) The accuracy of data and consistency with the UPSA formula of the charges shown in the Annual Bills;
(v) The prudence of actual costs and expenditures;
(vi) The effect of any change to the underlying Uniform System of Accounts; or
(vii) Any other information that may reasonably have substantive effect on the calculation of the charge pursuant to the formula.
(d) Make a good faith effort to quantify the financial impact or burden (if any) created for the party filing the Formal Challenge as a result of the action or inaction;
Protocols-7
Attachment: Protocols
(e) State whether the issues presented are pending in an existing Commission proceeding or a proceeding in any other forum in which the filing party is a party, and if so, provide an explanation why timely resolution cannot be achieved in that forum;
(f) State the specific relief or remedy requested, including any request for stay or extension of time, and the basis for that relief;
(g) Include all documents that support the facts in the Formal Challenge in possession of, or otherwise attainable by, the filing party, including, but not limited to, contracts and affidavits; and
(h) State whether the filing party utilized the Informal Challenge procedures described in these protocols to dispute the action or inaction raised by the Formal Challenge, and, if not, describe why not.
(2) Service. Any person filing a Formal Challenge must serve a copy of the Formal Challenge on SERI. Service to SERI must be simultaneous with filing at the Commission. Simultaneous service can be accomplished by electronic mail in accordance with § 385.2010(f)(3), facsimile, express delivery, or messenger. The party filing the Formal Challenge shall serve the individual listed as the contact person for SERI and Entergy Services, LLC listed on the FERC website.
D. Informal and Formal Challenges shall be limited to all issues that may be necessary to determine: (1) the extent or effect of an Accounting Change; (2) whether the Annual Bills fail to include data properly recorded in accordance with these protocols; (3) the proper application of the UPSA formula and procedures in these protocols; (4) the
Protocols-8
Attachment: Protocols
accuracy of data and consistency with the UPSA formula of the charges shown in the Annual Bills;
(5) the prudence of actual costs and expenditures; (6) the effect of any change to the underlying Uniform System of Accounts; or (7) any other information that may reasonably have substantive effect on the calculation of the charge pursuant to the UPSA formula.
E. Any changes or adjustments to the Annual Bills resulting from the Information Exchange and Informal Challenge processes that are agreed to by SERI will be reported in the
Informational Filing described in Section VI of these protocols.
F. An Interested Party shall have until February 28 following the Review Period (unless such date is extended with the written consent of SERI to continue efforts to resolve the Informal Challenge) to make a Formal Challenge with FERC, which shall be served on SERI. Failure to pursue an issue through an Informal Challenge regarding any issue as to a given set of Annual Bills shall bar a Formal Challenge on such issue with respect to that Annual Bill cycle, but shall not bar pursuit of such issue or the lodging of a Formal Challenge as to such issue as it relates to subsequent Annual Bills. SERI shall respond to the Formal Challenge by the deadline established by FERC. A party may not pursue a Formal Challenge if that party did not submit an Informal Challenge on any issue during the applicable Review Period.
G. In any proceeding initiated by FERC concerning the Annual Bills or in response to a Formal Challenge, SERI shall bear the burden, consistent with section 205 of the Federal Power Act, of proving that it has correctly applied the terms of the formula rate
Protocols-9
Attachment: Protocols
consistent with these protocols, and that it followed the applicable requirements and procedures in the UPSA. Nothing herein is intended to alter the burdens applied by FERC with respect to prudence challenges.
H. Except as specifically provided herein, nothing herein shall be deemed to limit in any way the right of SERI to file unilaterally, pursuant to Federal Power Act section 205 and the regulations thereunder, to change the formula rate or any of its inputs (including, but not limited to, rate of return), or the right of any other party to request such changes pursuant to section 206 of the Federal Power Act and the regulations thereunder.
I. No party shall seek to modify the formula rate under the Challenge Procedures set forth in these protocols and the Annual Bills shall not be subject to challenge by anyone for the purpose of modifying the UPSA formula. Any modifications to the UPSA formula will require, as applicable, a Federal Power Act section 205 or section 206 filing.
J. Any Interested Party seeking changes to the application of the UPSA formula due to a change in the Uniform System of Accounts shall first raise the matter with SERI before pursuing a Formal Challenge.
Section V. Changes to Annual Bills
Any changes to the data inputs, or as the result of any FERC proceeding to consider the Annual Bills, or as a result of the procedures set forth herein, shall be incorporated into the formula rate calculations on a going forward basis beginning with the UPSA bill that immediately follows the resolution of all challenges in an Annual Bill cycle. In addition, SERI will calculate refunds/surcharges for any changes or adjustments to the Annual Bills resulting from the Information Exchange and Informal Challenge processes that are agreed to by SERI
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Attachment: Protocols
for all prior months where the improper amounts were included in the UPSA bill, beginning with the first monthly bill that the improper amount was improperly included in the preceding calendar year. The refunds/surcharges will be included as a one-time adjustment on the UPSA bill immediately following the resolution of all challenges in an Annual Bill cycle. Interest on any refund or surcharge shall be calculated in accordance with 18 C.F.R. § 35.19a.
Section VI. Informational Filing
A. By January 31 of each year, SERI shall submit to FERC an informational filing (“Informational Filing”). The Informational Filing must describe any corrections or adjustments made during the previous calendar year and must describe all aspects of the UPSA formula or its inputs that are the subject of an ongoing dispute under the Informal or Formal Challenge procedures. SERI will also describe any refunds to be made pursuant to Section V above.
B. Any challenges to the implementation of the UPSA formula must be made through the Challenge Procedures described in these protocols or in a separate complaint proceeding and not in response to the Informational Filing.
Section VII. Reservation of Rights
Nothing herein is intended to limit a party's right to file a complaint under Section 206 of the Federal Power Act, or a party's right to oppose such complaint on any grounds.
Protocols-11
Exhibit 4.01
SYSTEM ENERGY RESOURCES, INC.
OFFICER’S CERTIFICATE
(Under Sections 101, 104, 1303 and 1307
of the below-described Mortgage and Deed of Trust,
of System Energy Resources, Inc.)
Establishing Additional Events of Default and Provisions
Relating to Assignments of Availability Agreement for each of the
First Mortgage Bonds, MBFC Series due 2044,
First Mortgage Bonds, MBFC Series due 2044,
First Mortgage Bonds, 6.00% Series due April 15, 2028, and
First Mortgage Bonds, 5.30% Series due December 15, 2034
The undersigned, Barrett E. Green, Vice President and Treasurer and an Authorized Officer of System Energy Resources, Inc., an Arkansas corporation (the “Company”) (all capitalized terms used herein that are not defined herein but are defined in the Mortgage referred to below shall have the meanings specified in such Mortgage), pursuant to Board Resolutions effective as of September 26, 2025, and Sections 101, 104, 1303 and 1307 of such Mortgage, does hereby certify to THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”) under the Mortgage and Deed of Trust, dated as of June 15, 1977 (as amended, restated and supplemented by the Twenty-Fourth Supplemental Indenture thereto dated as of September 1, 2012, and as further supplemented by Officer’s Certificate No. 2-B-2, dated as of June 8, 2021 (“Officer’s Certificate No. 2-B-2”), establishing the terms of the Bonds of the Twenty-fourth series issued under the Mortgage (the “Twenty-fourth Series Bonds”); Officer’s Certificate No. 4-B-4, dated as of March 8, 2023 (“Officer’s Certificate No. 4-B-4”), establishing the terms of the Bonds of the Twenty-sixth series issued under the Mortgage (the “Twenty-sixth Series Bonds”); and Officer’s Certificate No. 5-B-5, dated as of December 3, 2024 (“Officer’s Certificate No. 5-B-5”), establishing the terms of the Bonds of the Twenty-seventh series issued under the Mortgage (the “Twenty-seventh Series Bonds”), the “Mortgage”) as of October 1, 2025, that:
1. For purposes of the provisions contained in paragraphs 2 – 16, the following terms shall be defined as follows:
“Affiliate Operating Company” shall mean each of Entergy Arkansas, Entergy Mississippi and Entergy New Orleans.
“Availability Agreement” shall mean the Availability Agreement, dated as of October 1, 2025, as may be amended from time to time, among the Company and the Affiliate Operating Companies, or any successor agreement.
“Basic Agreements” shall mean, with respect to the Twenty-fourth Series Bonds, the Availability Agreement and the First Assignment of Availability Agreement; with respect to the Twenty-sixth Series Bonds, the Availability Agreement and the Second Assignment of Availability Agreement; and with respect to the Twenty-seventh Series Bonds, the Availability Agreement and the Third Assignment of Availability Agreement.
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“Business Day” shall mean any day other than a Saturday or a Sunday or a day on which banking institutions in The City of New York, New York, are authorized or required by law or executive order to remain closed or a day on which the corporate trust office of the Trustee is closed for business.
“Entergy Arkansas” shall mean Entergy Arkansas, LLC, a Texas limited liability company.
“Entergy Mississippi” shall mean Entergy Mississippi, LLC, a Texas limited liability company.
“Entergy New Orleans” shall mean Entergy New Orleans, LLC, a Texas limited liability company.
“First Assignment of Availability Agreement” shall mean the First Assignment of Availability Agreement, Consent and Agreement, dated as of October 1, 2025, among the Company, the Affiliate Operating Companies and the Trustee, or any successor agreement.
“Grand Gulf” shall mean Unit No. 1 of Grand Gulf Nuclear Station (nuclear), 90% owned or leased by the Company located in Mississippi along the east bank of the Mississippi River near Port Gibson, Mississippi.
“MBFC Bonds” shall mean the Mississippi Business Finance Corporation Revenue Refunding Bonds (System Energy Resources, Inc. Project) Series 2021 issued pursuant to the Trust Indenture dated as of June 1, 2021, between the Mississippi Business Finance Corporation and The Bank of New York Mellon, as trustee (the “MBFC Indenture Trustee”).
“Second Assignment of Availability Agreement” shall mean the Second Assignment of Availability Agreement, Consent and Agreement, dated as of October 1, 2025, among the Company, the Affiliate Operating Companies and the Trustee, or any successor agreement.
“Third Assignment of Availability Agreement” shall mean the Third Assignment of Availability Agreement, Consent and Agreement, dated as of October 1, 2025, among the Company, the Affiliate Operating Companies and the Trustee, or any successor agreement.
2. So long as any Twenty-fourth Series Bonds remain Outstanding, the Company will comply with the following covenants in addition to those specified in Article Seven and Section 1201 of the Mortgage:
Security Interests in Certain Agreements.
The Company will not transfer, pledge, assign or grant a security interest in any of its right, title and interest in, to or under (including its right to any moneys due or to become due under) any of the Basic Agreements, except to the extent expressly permitted pursuant to or recognized by the terms of the First Assignment of Availability Agreement.
Availability Agreement.
The Company will (i) duly perform all obligations to be performed by it under the Availability Agreement and the First Assignment of Availability Agreement, (ii) promptly take any and all action (including, without limitation, obtaining all orders, consents, permits, licenses and approvals, and making all registrations, declarations and filings) as may be necessary to enforce its rights under the Availability Agreement or the First Assignment of Availability Agreement and to enforce or secure the performance
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by the other parties thereto of their respective obligations thereunder, and (iii) use commercially reasonable efforts to obtain all orders, consents, permits, licenses and approvals, and make all registrations, declarations and filings, necessary to keep the Availability Agreement and the First Assignment of Availability Agreement in full force and effect. In the event of any material nonperformance by any party under the Availability Agreement or the First Assignment of Availability Agreement, the Company agrees that it will (i) duly perform all obligations to be performed by it under any other agreement for the sale of capacity and/or energy from Grand Gulf, (ii) promptly take any and all action (including, without limitation, obtaining all orders, consents, permits, licenses and approvals, and making all registrations, declarations and filings) as may be necessary to enforce its rights under any other agreement for the sale of capacity and/or energy from Grand Gulf and to enforce or secure the performance by the other parties thereto of their respective obligations thereunder, and (iii) use commercially reasonable efforts to obtain all orders, consents, permits, licenses and approvals, and make all registrations, declarations and filings necessary to maintain any other agreement for the sale of capacity and/or energy from Grand Gulf in full force and effect.
3. The following events shall be additional Events of Default (in addition to those set forth in Section 901 of the Mortgage) so long as any Twenty-fourth Series Bonds remain Outstanding:
(a) Any Affiliate Operating Company shall fail to pay or advance to the Company or the Trustee, as the case may be, any amount which such Affiliate Operating Company shall be obligated to pay or advance to the Company pursuant to the Availability Agreement and the First Assignment of Availability Agreement (or would be obligated to pay or advance under such agreements but for (i) the provisions of Section 7 of the Availability Agreement or the equivalent provision of any agreement substituted therefor, (ii) the bankruptcy or reorganization of any Affiliate Operating Company or the pendency of proceedings therefor, (iii) the condemnation or seizure of control of all or substantially all of the properties of any Affiliate Operating Company by a governmental authority or (iv) the occurrence of an event described in clause (i) or (ii) of paragraph (c) hereof) within 30 days after the date when such Affiliate Operating Company shall be obligated to pay or advance such amount (or would be obligated to pay but for the events described in (i) through (iv) of this subsection) or any of the parties thereto shall default in the performance of its obligations contained in the first sentence of Section 4 of the Availability Agreement (it being understood that if the entire amount of such obligatory payment is deposited with the Trustee before the expiration of such period of 30 days, such Event of Default shall no longer be considered to be continuing under the Mortgage);
(b) Default by any Affiliate Operating Company or the Company in the observance or performance of any other covenant or agreement contained in the Availability Agreement or the First Assignment of Availability Agreement, and the continuance of the same unremedied for a period of 30 days after written notice thereof, stating it is a “Notice of Default” under the Mortgage, shall have been given to the Company by the Trustee or the Holders of at least fifteen per centum (15%) in principal amount of the Twenty-fourth Series Bonds then Outstanding; or
(c) The Availability Agreement or the First Assignment of Availability Agreement shall, pursuant to a final binding judgment or order as to which no further appeals are available, at any time for any reason (i) cease to be in full force and effect or (ii) shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Affiliate Operating Company or the Company or any Affiliate Operating Company or the Company shall deny that it has any or further liability thereunder; unless (A) within 45 days after the occurrence of any such event any Affiliate Operating Company or the Company, as the case may be, shall have entered into a substitute agreement and furnished the Trustee an Officer’s Certificate, confirmed by an opinion of an investment banking firm
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appointed by the Board of Directors of the Company, to the effect that in the opinion of the signers, the substitute agreement offers (subject to obtaining necessary regulatory approval, if any) equivalent security to the Twenty-fourth Series Bonds, and (B) within 180 days after the occurrence of such event any Affiliate Operating Company or the Company, as the case may be, shall have obtained all necessary regulatory approvals for the performance of such substitute agreement and shall have provided to the Trustee an Opinion of Counsel to such effect and to the effect that such substitute agreement is valid, binding and enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws affecting enforcement of creditors’ rights.
4. In addition to the security provided under the Mortgage, the First Assignment of Availability Agreement and all proceeds therefrom, shall be for the sole and exclusive benefit of the MBFC Indenture Trustee as the Holder of the Twenty-fourth Series Bonds then Outstanding, and any enforcement thereof or remedy related thereto shall be for the benefit of and subject to the direction and control of the MBFC Indenture Trustee as the Holder of the Twenty-fourth Series Bonds in the same manner as any remedy or means of enforcement relating to the Mortgaged and Pledged Property are within the direction and control of the MBFC Indenture Trustee as the Holder of the Twenty-fourth Series Bonds, and any proceeds therefrom shall be applied for the exclusive benefit of the MBFC Indenture Trustee as the Holder of the Twenty-fourth Series Bonds in the same manner as set forth in Section 906 (Second) of the Mortgage.
5. Upon the termination of the Availability Agreement as contemplated by paragraph 6 hereof, this Officer’s Certificate and the terms of the Twenty-fourth Series Bonds shall be automatically amended, without any further action by the Company, the Trustee, the MBFC Indenture Trustee, the holders of the MBFC Bonds or the Holders of the Twenty-fourth Series Bonds, to delete paragraphs 2 and 3 hereof. The Company shall provide the Trustee and the MBFC Indenture Trustee with prompt written notice of any such termination, and the Trustee and the MBFC Indenture Trustee shall, at the request of the Company, and upon receipt of an Officer’s Certificate and Opinion of Counsel pursuant to Sections 104 and 1303 of the Mortgage, execute such instruments as may be reasonably required or desirable to evidence such amendments.
6. The Company reserves the right to terminate the Availability Agreement and the First Assignment of Availability Agreement, without any action by any holder of the MBFC Bonds or the MBFC Indenture Trustee, upon the Company’s delivery to the Trustee of an Officer’s Certificate stating the following: The Availability Agreement and the Assignments thereof are similarly terminated as they relate to all other outstanding series of Securities and all other indebtedness of the Company or no longer apply or do not apply to any other such series of Securities or indebtedness.
7. So long as any Twenty-sixth Series Bonds remain Outstanding, the Company will comply with the following covenants in addition to those specified in Article Seven and Section 1201 of the Mortgage:
Security Interests in Certain Agreements.
The Company will not transfer, pledge, assign or grant a security interest in any of its right, title and interest in, to or under (including its right to any moneys due or to become due under) any of the Basic Agreements, except to the extent expressly permitted pursuant to or recognized by the terms of the Second Assignment of Availability Agreement.
Availability Agreement.
The Company will (i) duly perform all obligations to be performed by it under the Availability Agreement and the Second Assignment of Availability Agreement, (ii) promptly take any and all action
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(including, without limitation, obtaining all orders, consents, permits, licenses and approvals, and making all registrations, declarations and filings) as may be necessary to enforce its rights under the Availability Agreement or the Second Assignment of Availability Agreement and to enforce or secure the performance by the other parties thereto of their respective obligations thereunder, and (iii) use commercially reasonable efforts to obtain all orders, consents, permits, licenses and approvals, and make all registrations, declarations and filings, necessary to keep the Availability Agreement and the Second Assignment of Availability Agreement in full force and effect. In the event of any material nonperformance by any party under the Availability Agreement or the Second Assignment of Availability Agreement, the Company agrees that it will (i) duly perform all obligations to be performed by it under any other agreement for the sale of capacity and/or energy from Grand Gulf, (ii) promptly take any and all action (including, without limitation, obtaining all orders, consents, permits, licenses and approvals, and making all registrations, declarations and filings) as may be necessary to enforce its rights under any other agreement for the sale of capacity and/or energy from Grand Gulf and to enforce or secure the performance by the other parties thereto of their respective obligations thereunder, and (iii) use commercially reasonable efforts to obtain all orders, consents, permits, licenses and approvals, and make all registrations, declarations and filings necessary to maintain any other agreement for the sale of capacity and/or energy from Grand Gulf in full force and effect.
8. The following events shall be additional Events of Default (in addition to those set forth in Section 901 of the Mortgage) so long as any Twenty-sixth Series Bonds remain Outstanding:
(a) Any Affiliate Operating Company shall fail to pay or advance to the Company or the Trustee, as the case may be, any amount which such Affiliate Operating Company shall be obligated to pay or advance to the Company pursuant to the Availability Agreement and the Second Assignment of Availability Agreement (or would be obligated to pay or advance under such agreements but for (i) the provisions of Section 7 of the Availability Agreement or the equivalent provision of any agreement substituted therefor, (ii) the bankruptcy or reorganization of any Affiliate Operating Company or the pendency of proceedings therefor, (iii) the condemnation or seizure of control of all or substantially all of the properties of any Affiliate Operating Company by a governmental authority or (iv) the occurrence of an event described in clause (i) or (ii) of paragraph (c) hereof) within 30 days after the date when such Affiliate Operating Company shall be obligated to pay or advance such amount (or would be obligated to pay but for the events described in (i) through (iv) of this subsection) or any of the parties thereto shall default in the performance of its obligations contained in the first sentence of Section 4 of the Availability Agreement (it being understood that if the entire amount of such obligatory payment is deposited with the Trustee before the expiration of such period of 30 days, such Event of Default shall no longer be considered to be continuing under the Mortgage);
(b) Default by any Affiliate Operating Company or the Company in the observance or performance of any other covenant or agreement contained in the Availability Agreement or the Second Assignment of Availability Agreement, and the continuance of the same unremedied for a period of 30 days after written notice thereof, stating it is a “Notice of Default” under the Mortgage, shall have been given to the Company by the Trustee or the Holders of at least fifteen per centum (15%) in principal amount of the Twenty-sixth Series Bonds then Outstanding; or
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(c) The Availability Agreement or the Second Assignment of Availability Agreement shall, pursuant to a final binding judgment or order as to which no further appeals are available, at any time for any reason (i) cease to be in full force and effect or (ii) shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Affiliate Operating Company or the Company or any Affiliate Operating Company or the Company shall deny that it has any or further liability thereunder; unless (A) within 45 days after the occurrence of any such event any Affiliate Operating Company or the Company, as the case may be, shall have entered into a substitute agreement and furnished the Trustee an Officer’s Certificate, confirmed by an opinion of an investment banking firm appointed by the Board of Directors of the Company, to the effect that in the opinion of the signers, the substitute agreement offers (subject to obtaining necessary regulatory approval, if any) equivalent security to the Twenty-sixth Series Bonds, and (B) within 180 days after the occurrence of such event any Affiliate Operating Company or the Company, as the case may be, shall have obtained all necessary regulatory approvals for the performance of such substitute agreement and shall have provided to the Trustee an Opinion of Counsel to such effect and to the effect that such substitute agreement is valid, binding and enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws affecting enforcement of creditors’ rights.
9. In addition to the security provided under the Mortgage, the Second Assignment of Availability Agreement and all proceeds therefrom, shall be for the sole and exclusive benefit of the Holders of the Twenty-sixth Series Bonds then Outstanding, and any enforcement thereof or remedy related thereto shall be for the benefit of and subject to the direction and control of such Holders in the same manner as any remedy or means of enforcement relating to the Mortgaged and Pledged Property are within the direction and control of the Holders of the Twenty-sixth Series Bonds, and any proceeds therefrom shall be applied for the exclusive benefit of the Holders of the Twenty-sixth Series Bonds in the same manner as set forth in Section 906 (Second) of the Mortgage.
10. Upon the termination of the Availability Agreement as contemplated by paragraph 11 hereof, this Officer’s Certificate and the terms of the Twenty-sixth Series Bonds shall be automatically amended, without any further action by the Company, the Trustee or the Holders of the Twenty-sixth Series Bonds, to delete paragraphs 7 and 8 hereof. The Company shall provide the Trustee with prompt written notice of any such termination, and the Trustee shall, at the written request of the Company, and upon receipt of an Officer’s Certificate and Opinion of Counsel pursuant to Sections 104 and 1303 of the Mortgage, execute such instruments as may be reasonably required or desirable to evidence such amendments.
11. The Company reserves the right to terminate the Availability Agreement and the Second Assignment of Availability Agreement, without any action by any Holder of the Twenty-sixth Series Bonds, upon the Company’s delivery to the Trustee of an Officer’s Certificate stating the following: The Availability Agreement and the Assignments thereof are similarly terminated as they relate to all other outstanding series of Securities and all other indebtedness of the Company or no longer apply or do not apply to any other such series of Securities or indebtedness.
12. So long as any Twenty-seventh Series Bonds remain Outstanding, the Company will comply with the following covenants in addition to those specified in Article Seven and Section 1201 of the Mortgage:
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Security Interests in Certain Agreements.
The Company will not transfer, pledge, assign or grant a security interest in any of its right, title and interest in, to or under (including its right to any moneys due or to become due under) any of the Basic Agreements, except to the extent expressly permitted pursuant to or recognized by the terms of the Third Assignment of Availability Agreement.
Availability Agreement.
The Company will (i) duly perform all obligations to be performed by it under the Availability Agreement and the Third Assignment of Availability Agreement, (ii) promptly take any and all action (including, without limitation, obtaining all orders, consents, permits, licenses and approvals, and making all registrations, declarations and filings) as may be necessary to enforce its rights under the Availability Agreement or the Third Assignment of Availability Agreement and to enforce or secure the performance by the other parties thereto of their respective obligations thereunder, and (iii) use commercially reasonable efforts to obtain all orders, consents, permits, licenses and approvals, and make all registrations, declarations and filings, necessary to keep the Availability Agreement and the Third Assignment of Availability Agreement in full force and effect. In the event of any material nonperformance by any party under the Availability Agreement or the Third Assignment of Availability Agreement, the Company agrees that it will (i) duly perform all obligations to be performed by it under any other agreement for the sale of capacity and/or energy from Grand Gulf, (ii) promptly take any and all action (including, without limitation, obtaining all orders, consents, permits, licenses and approvals, and making all registrations, declarations and filings) as may be necessary to enforce its rights under any other agreement for the sale of capacity and/or energy from Grand Gulf and to enforce or secure the performance by the other parties thereto of their respective obligations thereunder, and (iii) use commercially reasonable efforts to obtain all orders, consents, permits, licenses and approvals, and make all registrations, declarations and filings necessary to maintain any other agreement for the sale of capacity and/or energy from Grand Gulf in full force and effect.
13. The following events shall be additional Events of Default (in addition to those set forth in Section 901 of the Mortgage) so long as any Twenty-seventh Series Bonds remain Outstanding:
(a) Any Affiliate Operating Company shall fail to pay or advance to the Company or the Trustee, as the case may be, any amount which such Affiliate Operating Company shall be obligated to pay or advance to the Company pursuant to the Availability Agreement and the Third Assignment of Availability Agreement (or would be obligated to pay or advance under such agreements but for (i) the provisions of Section 7 of the Availability Agreement or the equivalent provision of any agreement substituted therefor, (ii) the bankruptcy or reorganization of any Affiliate Operating Company or the pendency of proceedings therefor, (iii) the condemnation or seizure of control of all or substantially all of the properties of any Affiliate Operating Company by a governmental authority or (iv) the occurrence of an event described in clause (i) or (ii) of paragraph (c) hereof) within 30 days after the date when such Affiliate Operating Company shall be obligated to pay or advance such amount (or would be obligated to pay but for the events described in (i) through (iv) of this subsection) or any of the parties thereto shall default in the performance of its obligations contained in the first sentence of Section 4 of the Availability Agreement (it being understood that if the entire amount of such obligatory
7
payment is deposited with the Trustee before the expiration of such period of 30 days, such Event of Default shall no longer be considered to be continuing under the Mortgage);
(b) Default by any Affiliate Operating Company or the Company in the observance or performance of any other covenant or agreement contained in the Availability Agreement or the Third Assignment of Availability Agreement, and the continuance of the same unremedied for a period of 30 days after written notice thereof, stating it is a “Notice of Default” under the Mortgage, shall have been given to the Company by the Trustee or the Holders of at least fifteen per centum (15%) in principal amount of the Twenty-seventh Series Bonds then Outstanding; or
(c) The Availability Agreement or the Third Assignment of Availability Agreement shall, pursuant to a final binding judgment or order as to which no further appeals are available, at any time for any reason (i) cease to be in full force and effect or (ii) shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Affiliate Operating Company or the Company or any Affiliate Operating Company or the Company shall deny that it has any or further liability thereunder; unless (A) within 45 days after the occurrence of any such event any Affiliate Operating Company or the Company, as the case may be, shall have entered into a substitute agreement and furnished the Trustee an Officer’s Certificate, confirmed by an opinion of an investment banking firm appointed by the Board of Directors of the Company, to the effect that in the opinion of the signers, the substitute agreement offers (subject to obtaining necessary regulatory approval, if any) equivalent security to the Twenty-seventh Series Bonds, and (B) within 180 days after the occurrence of such event any Affiliate Operating Company or the Company, as the case may be, shall have obtained all necessary regulatory approvals for the performance of such substitute agreement and shall have provided to the Trustee an Opinion of Counsel to such effect and to the effect that such substitute agreement is valid, binding and enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws affecting enforcement of creditors’ rights.
14. In addition to the security provided under the Mortgage, the Third Assignment of Availability Agreement and all proceeds therefrom, shall be for the sole and exclusive benefit of the Holders of the Twenty-seventh Series Bonds then Outstanding, and any enforcement thereof or remedy related thereto shall be for the benefit of and subject to the direction and control of such Holders in the same manner as any remedy or means of enforcement relating to the Mortgaged and Pledged Property are within the direction and control of the Holders of the Twenty-seventh Series Bonds, and any proceeds therefrom shall be applied for the exclusive benefit of the Holders of the Twenty-seventh Series Bonds in the same manner as set forth in Section 906 (Second) of the Mortgage.
15. Upon the termination of the Availability Agreement as contemplated by paragraph 16 hereof, this Officer’s Certificate and the terms of the Twenty-seventh Series Bonds shall be automatically amended, without any further action by the Company, the Trustee or the Holders of the Twenty-seventh Series Bonds, to delete paragraphs 12 and 13 hereof. The Company shall provide the Trustee with prompt written notice of any such termination, and the Trustee shall, at the written request of the Company, and upon receipt of an Officer’s Certificate and Opinion of Counsel pursuant to Sections 104 and 1303 of the Mortgage, execute such instruments as may be reasonably required or desirable to evidence such amendments.
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16. The Company reserves the right to terminate the Availability Agreement and the Third Assignment of Availability Agreement, without any action by any Holder of the Twenty-seventh Series Bonds, upon the Company’s delivery to the Trustee of an Officer’s Certificate stating the following: The Availability Agreement and the Assignments thereof are similarly terminated as they relate to all other outstanding series of Securities and all other indebtedness of the Company or no longer apply or do not apply to any other such series of Securities or indebtedness.
17. The establishment of the additional covenants and Events of Default with respect to the Twenty-fourth Series Bonds, the Twenty-sixth Series Bonds and the Twenty-seventh Series Bonds is permitted by the provisions of the Mortgage.
18. The undersigned has read all of the covenants and conditions contained in the Mortgage, and the definitions in the Mortgage relating thereto, relating to the matters described herein in respect of compliance with which this certificate is made.
19. The statements contained in this certificate are based upon the familiarity of the undersigned with the Mortgage, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.
20. In the opinion of the undersigned, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenants and conditions have been complied with.
21. In the opinion of the undersigned, such conditions and covenants, and all conditions precedent provided for in the Mortgage (including any covenants compliance with which constitutes a condition precedent) relating to the matters described herein have been complied with.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, I have executed this Officer’s Certificate as of the date set forth above.
By: /s/ Barrett E. Green
Name: Barrett E. Green
Name: Barrett E. Green
Title: Vice President and Treasurer
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STATE OF LOUISIANA §
§
PARISH OF ORLEANS §
On the 17th day of September, 2025, before me appeared Barrett E. Green, to me personally known, who, being by me duly sworn, did say that he is Vice President and Treasurer of SYSTEM ENERGY RESOURCES, INC., and that the above instrument was signed on behalf of said corporation by authority of its Board of Directors, and said Barrett E. Green acknowledged said instrument to be the free act and deed of said corporation.
/s/ Raechelle Marie Munna
Raechelle Marie Munna
Raechelle Marie Munna
Notary Public ID number: 91008
My commission expires: at death
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