exv10w2






Exhibit 10.2




FORM OF TRANSITION SERVICES AGREEMENT




by and between




ENTERGY CORPORATION




and




ENEXUS ENERGY CORPORATION




Dated as of                     , 2008





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	1. Definitions
	 	 	1	 
	2. Services
	 	 	4	 
	2.1 Scope of Services
	 	 	4	 
	2.2 Provision of Services
	 	 	5	 
	2.3 No Financing to Services Recipient
	 	 	5	 
	2.4 No Assumption or Modification of Obligations
	 	 	5	 
	2.5 Application of Resources
	 	 	6	 
	2.6 Performance of Services
	 	 	6	 
	2.7 Transitional Nature of Services; Changes
	 	 	6	 
	2.8 Omitted Services; Additional Services; Extension of Services Terms
	 	 	6	 
	2.9 Impracticability
	 	 	7	 
	2.10 Cooperation
	 	 	7	 
	3. Compensation
	 	 	7	 
	3.1 Compensation for Entergy Services
	 	 	7	 
	3.2 Compensation for Enexus Services
	 	 	7	 
	3.3 Payment
	 	 	8	 
	4. Services Term; Termination
	 	 	8	 
	4.1 Services Term
	 	 	8	 
	4.2 Termination
	 	 	8	 
	4.3 Rights and Obligations Upon Termination
	 	 	9	 
	4.4 Demobilization Costs
	 	 	9	 
	5. Return of Leased Property or Licensed Software
	 	 	9	 
	6. Disclaimer of Representations and Warranties
	 	 	10	 
	7. Effective Time
	 	 	10	 
	8. Internal Controls and Procedures
	 	 	10	 
	9. Books and Records; Audits
	 	 	10	 
	9.1 Books and Records
	 	 	10	 
	9.2 Audit of Performance
	 	 	10	 
	9.3 Audit Assistance
	 	 	11	 
	10. Compliance with Laws and Governmental Requirements
	 	 	11	 
	11. Indemnification; Remedy and Limitation of Liability
	 	 	12	 
	11.1 Indemnity by Service Provider
	 	 	12	 
	11.2 Defense of Indemnified Claims
	 	 	12	 
	11.3 Remedy
	 	 	13	 
	11.4 Limitation on Liability
	 	 	13	 
	12. Dispute Resolution
	 	 	13	 
	13. Property Rights
	 	 	14	 
	14. Confidentiality
	 	 	14	 
	14.1 Nondisclosures, Restricted Data and Safeguards Information
	 	 	14	 
	14.2 Notification
	 	 	15	 
	14.3 Permitted Disclosures
	 	 	15	 
	15. Miscellaneous
	 	 	15	 






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	 	 	Page	 
	15.1 Complete Agreement; Construction
	 	 	15	 
	15.2 Counterparts
	 	 	15	 
	15.3 Survival of Agreement
	 	 	16	 
	15.4 Expenses
	 	 	16	 
	15.5 Notices
	 	 	16	 
	15.6 Waivers
	 	 	16	 
	15.7 Amendments
	 	 	16	 
	15.8 Assignment
	 	 	16	 
	15.9 Successors and Assigns
	 	 	17	 
	15.10 Termination
	 	 	17	 
	15.11 Subsidiaries
	 	 	17	 
	15.12 Third Party Beneficiaries
	 	 	17	 
	15.13 Title and Headings
	 	 	17	 
	15.14 Schedules
	 	 	17	 
	15.15 Governing Law
	 	 	17	 
	15.16 Consent to Jurisdiction
	 	 	17	 
	15.17 Specific Performance
	 	 	18	 
	15.18 Waiver of Jury Trial
	 	 	18	 
	15.19 Severability
	 	 	18	 
	15.20 Force Majeure
	 	 	18	 
	15.21 Construction
	 	 	19	 
	15.22 Authorization
	 	 	19	 
	15.23 References; Interpretations
	 	 	19	 
	15.24 Status of Service Provider as Independent Contractor
	 	 	19	 







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TRANSITION SERVICES AGREEMENT




     THIS TRANSITION SERVICES AGREEMENT (this “Agreement”) is entered into as of
                    , 2008, by and between Entergy Corporation, a Delaware corporation (“Entergy”),
and Enexus Energy Corporation, a Delaware corporation (“Enexus”), each a “Party”
and together, the “Parties”.



R E C I T A L S:




     WHEREAS, Entergy, acting through its direct and indirect Subsidiaries, currently conducts a
number of businesses, including (i) the Non-Utility Nuclear Business, and (ii) the Retained
Business;



     WHEREAS, the Board of Directors of Entergy has determined that it is appropriate, desirable
and in the best interests of Entergy and its stockholders to separate Entergy into two separate,
independent and publicly traded companies: (i) one comprising the Non-Utility Nuclear Business,
which shall be owned and conducted, directly or indirectly, by Enexus, and (ii) one comprising the
Retained Business which shall continue to be owned and conducted, directly or indirectly, by
Entergy;



     WHEREAS, to effect this separation the Parties entered into that certain Separation and
Distribution Agreement dated as of even date hereof (as amended or otherwise modified from time to
time, the “Separation Agreement”);



     WHEREAS, Entergy and Enexus desire that if (but only if) the Distribution occurs, Entergy will
provide to Enexus and its Subsidiaries during the relevant Services Term, directly or through
Entergy’s Affiliates or subcontractors, the Entergy Services, all in accordance with the terms and
subject to the conditions set forth in this Agreement; and



     WHEREAS, Entergy and Enexus desire that if (but only if) the Distribution occurs, Enexus will
provide to Entergy and its Subsidiaries during the relevant Services Term, directly or through
Enexus’s Affiliates or subcontractors, the Enexus Services, all in accordance with the terms and
subject to the conditions set forth in this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:



1. Definitions




     As used in this Agreement, the following capitalized terms shall have the following meanings:



     (1) “Action” shall have the meaning given to it in the Separation Agreement.



     (2) “Additional Service” shall have the meaning set forth in Section 2.8(b).



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     (3) “Affiliate” shall mean when used with respect to a specified Person, a Person that
directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with such specified Person, provided that no member of the Joint
Venture Group shall constitute an Affiliate of either of the Parties for purposes of this
Agreement. For the purposes of this definition “control,” when used with respect to any specified
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
securities or other interests, by Contract or otherwise.



     (4) “Agreement” shall have the meaning set forth in the recitals hereof.



     (5) “Agreement Dispute” shall have the meaning set forth in Section 12.



     (6) “Ancillary Agreement” shall have the meaning given to it in the Separation
Agreement.



     (7) “Asset” shall have the meaning given to it in the Separation Agreement.



     (8) “Audited Party” shall have the meaning set forth in Section 9.3.



     (9) “Auditing Entity” shall have the meaning set forth in Section 9.3.



     (10) “Business” shall mean the Retained Business or the Non-Utility Nuclear Business,
as applicable.



     (11) “Business Day” shall have the meaning given to it in the Separation Agreement.



     (12) “Contract” shall have the meaning given to it in the Separation Agreement.



     (13) “Delaware Courts” shall have the meaning set forth in Section 15.16.



     (14) “Demobilization Costs” shall have the meaning set forth in Section 4.4.



     (15) “Disclosing Party” shall have the meaning set forth in Section 14.1.



     (16) “Distribution” shall have the meaning given to it in the Separation Agreement.



     (17) “Distribution Date” shall have the meaning given to it in the Separation
Agreement.



     (18) “Due Date” shall have the meaning set forth in Section 3.3.



     (19) “Effective Time” shall have the meaning given to it in the Separation Agreement.



     (20) “Enexus” shall have the meaning set forth in the recitals hereof.



     (21) “Enexus Group” shall have the meaning given to it in the Separation Agreement.



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     (22) “Enexus Services” shall mean the limited enumerated services described on
Schedule B attached hereto.



     (23) “Entergy” shall have the meaning set forth in the recitals hereof.



     (24) “Entergy Group” shall have the meaning given to it in the Separation Agreement.



     (25) “Entergy Services” shall mean the limited enumerated services described on
Schedule A attached hereto.



     (26) “Facility” shall mean any nuclear generating facility owned or managed by a
Party.



     (27) “FICA” means Federal Insurance Contribution Act.



     (28) “Force Majeure” shall have the meaning given to it in the Separation Agreement.



     (29) “Governmental Entity” shall have the meaning given to it in the Separation
Agreement.



     (30) “Group” shall mean either the Entergy Group or the Enexus Group, as applicable.



     (31) “Indemnified Party” shall have the meaning set forth in Section 11.1.



     (32) “Indemnitee” shall have the meaning set forth in Section 11.2.



     (33) “Indemnitor” shall have the meaning set forth in Section 11.2.



     (34) “Joint Venture Group” shall have the meaning given to it in the Separation
Agreement.



     (35) “Law” shall have the meaning given to it in the Separation Agreement.



     (36) “Liability” shall have the meaning given to it in the Separation Agreement.



     (37) “Non-Utility Nuclear Business” shall have the meaning given to it in the
Separation Agreement.



     (38) “NRC” shall mean the United States Nuclear Regulatory Commission or its successor
having responsibility for administration of the licensing and regulation of the operation of
nuclear utilization facilities under the Atomic Energy Act of 1954 and any amendments thereto.



     (39) “Omitted Service” shall have the meaning set forth in Section 2.8(a).



     (40) “Party” shall have the meaning set forth in the recitals hereof.



     (41) “Person” shall have the meaning given to it in the Separation Agreement.



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     (42) “Prime Rate” shall have the meaning given to it in the Separation Agreement.



     (43) “Receiving Party” shall have the meaning given to it in Section 14.1.



     (44) “Retained Business” shall have the meaning given to it in the Separation
Agreement.



     (45) “Separation Agreement” shall have the meaning set forth in the recitals hereof.



     (46) “Service” shall mean any of the Enexus Services and the Entergy Services, as
applicable.



     (47) “Service Provider” shall mean Entergy with respect to the Entergy Services, and
Enexus with respect to the Enexus Services.



     (48) “Service Recipient” shall mean Enexus with respect to the Entergy Services, and
Entergy with respect to the Enexus Services.



     (49) “Services Term” shall have the meaning set forth in Section 4.1.



     (50) “Subsidiary” means a wholly-owned subsidiary of a Party.



     (51) “Willful Misconduct or Gross Negligence” shall mean any act or omission that is,
authorized, undertaken or omitted with an intention that such act or omission will result in, or
that is authorized, undertaken or omitted consciously with prior actual knowledge that such act or
omission is likely to result in, or that is authorized, undertaken or omitted with reckless
disregard of facts or law indicating that such act or omission is likely to result in, actionable
damages, or other actionable equitable or legal remedies, or injury to any person or property, or
material violation or material failure to fulfill the requirements of any applicable Law, internal
policy of the Service Recipient reasonably adopted in order to comply with any applicable Law, or
this Agreement.



2. Services.




     2.1 Scope of Services.



     (a) Enexus hereby retains Entergy to provide, and Entergy hereby agrees to provide, the
Entergy Services to Enexus or any of its Subsidiaries, as designated by Enexus, during the relevant
Services Term.



     (b) Entergy hereby retains Enexus to provide, and Enexus hereby agrees to provide, the Enexus
Services to Entergy or any of its Subsidiaries, as designated by Entergy, during the relevant
Services Term.



     (c) Notwithstanding anything to the contrary in this Agreement, (i) the Entergy Services shall
be available to Enexus or any of its Subsidiaries only for the purposes of conducting the
Non-Utility Nuclear Business substantially in the same manner and places as it was conducted
immediately prior to the Effective Time; and (ii) the Enexus Services shall be



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available to Entergy or any of its Subsidiaries only for the purposes of conducting the
Retained Business substantially in the same manner and places as it was conducted immediately prior
to the Effective Time.



     (d) To avoid doubt, no services shall be provided by either Enexus or Entergy or their
respective Affiliates to any member of the Joint Venture Group pursuant to this Agreement.



     2.2 Provision of Services.



     (a) The Entergy Services may be directly provided by Entergy or may be provided through any of
its Affiliates or subcontractors, and the Enexus Services may be directly provided by Enexus or may
be provided through any of its Affiliates or subcontractors, provided that neither the Entergy
Services nor the Enexus Services may be provided through any member of the Joint Venture Group.



     (b) Each Service Provider, and not the Service Recipient, shall be solely responsible and
liable for: (i) payment of wages or salary or other compensation for the personnel providing
services to the Service Recipient through this Agreement, (ii) as applicable, withholding and
payment of federal, state and local individual income taxes, FICA, and other taxes and applicable
amounts with respect to any payment made to such personnel; (iii) providing to such personnel, as
applicable, all pension, welfare and other employment-related benefits; and (iv) directing and
controlling such personnel and making all employment-related decisions relating to such personnel.
At no time during the performance of this Agreement shall any of the Service Provider’s personnel
be an employee of the Service Recipient; nor shall any such personnel be eligible to receive any
employee compensation or employment-related benefits that the Service Recipient may offer or
sponsor. Notwithstanding other provisions of this Agreement, and solely for purposes of providing
statutory immunity from tort suit under La. R.S. 23:1061, it is the Parties’ intention that the
Service Provider’s personnel providing services under this Agreement shall have status as statutory
employees of the Service Recipient or similar designation under applicable state law as necessary
to reduce exposure of the Service Recipient to general tort and other liability, while such
personnel are working at, or performing work in support of, the Service Recipient. For all other
purposes, the parties intend that the Service Provider shall be the sole employer all personnel
supplying services under this Agreement while working at, or in support of, the Service Recipient.



     2.3 No Financing to Services Recipient. In no event shall a Service Provider or its Affiliates be required to (i) lend any funds to a
Service Recipient or its Affiliates, (ii) expend funds for any additional equipment or material or
property (real or personal) on behalf of Service Recipient, or (iii) make any payments or
disbursements on behalf of Service Recipient, except to the extent Service Recipient has previously
delivered to Service Provider sufficient funds to make any such expenditures, payment or
disbursement.



     2.4 No Assumption or Modification of Obligations. Except to the extent necessary in
the provision of the Services, nothing herein shall be deemed to (i) constitute the assumption by
Service Provider or any of its Affiliates, or the agreement to assume, any duties, obligations or
liabilities of Service Recipient or its Affiliates whatsoever; or (ii) alter, amend or
otherwise modify any obligation of Entergy or Enexus under the Separation Agreement.



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     2.5 Application of Resources. Unless otherwise expressly required under the terms of
any relevant Schedule hereto or the Separation Agreement, or otherwise agreed to by the Parties in
writing, in providing the Services, Service Provider or its Affiliates shall not be obligated to:
(i) expend funds and other resources beyond levels that would be customary and reasonable for any
other nationally recognized service provider to perform services that are similar to the relevant
Services; (ii) maintain the employment of any specific employee or subcontractor; (iii) purchase,
lease or license any additional (measured as of the even date hereof) equipment or materials
(expressly excluding any renewal or extension of any leases or licenses required for Service
Provider to perform the relevant Services during the relevant Services Term); or (iv) pay any of
Service Recipient’s costs related to its or any of its Affiliates’ receipt of the Services.



     2.6 Performance of Services. Subject to the other terms (i) in this Agreement setting
forth and circumscribing Service Provider’s performance obligations hereunder (including in
Sections 2.1, 2.2, 2.3, 2.5, 2.7, 2.8, 2.9 and 6, and (ii) in the relevant Schedules hereto, each
Service Provider shall perform, or cause the applicable members of its Group to perform, the
Services required to be provided by it hereunder in a manner specifically described in the relevant
Schedules hereto, or, to the extent not so described in such Schedules, in a manner that is
substantially the same in nature, accuracy, quality, completeness, timeliness, responsiveness and
efficiency with how such relevant Services have been rendered to the Non-Utility Nuclear Business
by Entergy (or any of its Affiliates) prior to the Effective Time.



     2.7 Transitional Nature of Services; Changes. The Parties acknowledge the
transitional nature of the Services and agree that notwithstanding anything to the contrary herein,
each Service Provider may make changes from time-to-time in the manner of performing the Services
if such Service Provider is making similar changes in performing similar services for itself and/or
its Affiliates; provided that Service Provider must provide Service Recipient with at least thirty
(30) days prior written notice of such changes.



     2.8 Omitted Services; Additional Services; Extension of Services Terms.



     (a) Omitted Services. If, after the Distribution Date and prior to 90 days after the
Distribution Date, a Party identifies a service that the other Party (or a member of such other
Party’s Group) previously provided to such first Party (or any of its Subsidiaries) prior to the
Distribution Date, but such service was inadvertently omitted from inclusion in the Services to be
received by such first Party under this Agreement (an “Omitted Service”), then, upon the
prior written consent of the Party that would be Service Provider of such Omitted Service (which
consent shall not be unreasonably withheld), such Omitted Service shall be added and considered as
part of the Services to be provided by such Service Provider. The Parties shall cooperate and act
in good faith to reach agreement on the fees and other specific terms and conditions applicable to
such Omitted Service, provided that if such Omitted Service is substantially
similar to any other Service provided by Services Provider under this Agreement, such fees and
other specific terms and conditions shall be substantially similar to the fees and other specific
terms and conditions applicable to such other Services. Upon the Parties agreement on the fees and
other specific terms and conditions applicable to an Omitted Service, the Parties shall execute an
amendment to this Agreement that provides for the substitution of the relevant Schedule, or
additions of supplements to the relevant Schedule, in order to describe such Omitted Service and
the agreement upon the related fees and other specific terms and conditions applicable thereto.



6









 





     (b) Additional Services; Extension of Services Terms. In the event that the Parties
identify and agree upon (i) an additional service to be provided under this Agreement, as well as
the related fees and other specific terms and conditions applicable thereto (an “Additional
Service”), or (ii) an extension of any particular Service Term for any Service, as well as the
related fees and other specific terms and conditions applicable thereto, the Parties shall execute
an amendment to this Agreement that provides for the substitution of the relevant Schedule, or
additions of supplements to the relevant Schedule, in order to describe such Additional Service or
extension, and the agreed upon related fees and other specific terms and conditions applicable
thereto.



     2.9 Impracticability. Subject to the provisions of Section 2.10, Service Provider
shall not be required to provide any Service to the extent: (a) that the performance of the
Services would (i) require Service Provider or any of its Affiliates to violate any applicable Laws
(including any applicable codes or standards of conduct established by any other Governmental
Entity with respect to their activities subject to the jurisdiction of such other Governmental
Entity) or any internal policy reasonably adopted in order to comply with any applicable Laws; (ii)
result in a material breach of any software license, lease, or other Contract; or (iii) require
prior approval of a Governmental Entity (except to the extent such approval has already been
obtained); or (b) provided under Section 15.20.



     2.10 Cooperation. In the event that there is nonperformance of any Service as a
result of (i) a Force Majeure event described in Section 15.20, or (ii) impracticability pursuant
to Section 2.9, the Parties agree to work together in good faith to arrange for an alternative
means by which the applicable Service Recipient may obtain, at its sole cost and expense, the
Service so affected. The Parties and the members of their respective Groups shall cooperate with
each other in connection with the performance of the Services, including producing on a timely
basis all Contracts, documents and other information that is reasonably requested with respect to
the performance of Services; provided, however, that such cooperation shall not unreasonably
disrupt the normal operations of the Parties and the members of their respective Groups; and
provided, further, however the Party requesting cooperation shall pay all reasonable out-of-pocket
costs and expenses incurred by the Party or any members of its Group furnishing such requested
cooperation, unless otherwise expressly provided in this Agreement or the Separation Agreement.



3. Compensation.




     3.1 Compensation for Entergy Services. In consideration of Entergy’s performance of
the Entergy Services, Enexus hereby agrees to pay to Entergy an amount equal to (a) the cost of
such Entergy Services, computed in accordance with applicable rules and regulations and consistent
with applicable requirements of the Federal Energy Regulatory Commission plus (b) a charge of 5% of
such cost. The cost of Entergy Services under (a) above shall include direct charges and Enexus’
pro rata share of certain of Entergy’s costs and shall be determined as outlined in Schedule D
attached hereto.



     3.2 Compensation for Enexus Services. In consideration of Enexus’ performance of the
Enexus Services, Entergy hereby agrees to pay to Enexus an amount equal to the lower of the fully
allocated cost or the market price of providing such Enexus Services. The cost of Enexus



7









 







Services
under this Section 3.2 shall include direct charges and Entergy’s pro rata share of certain of
Enexus’ costs and shall be determined as outlined in Schedule D attached hereto.



     3.3 Payment. On or before the 15 days after the end of each calendar month the
Service Provider shall render to the Service Recipient a bill for Services provided in the previous
month. The Parties shall net such amounts against each other, and the Party having a balance owed
to the other Party shall deposit the amount owed into the other Party’s bank account on or before
the 10th day following the rendering of such bill (“Due Date”). All payments shall be by wire
transfer to the account notified in writing by the Service Provider to the Service Recipient.



4. Services Term; Termination.




     4.1 Services Term. The performance of the Services shall commence on the Distribution
Date and, unless earlier terminated pursuant to Section 4.2 or 4.3, shall terminate on the earlier
of (i) the first anniversary of the Distribution Date, or (ii) such earlier date as may be
expressly provided for in the relevant Schedule hereto (the “Services Term”).



     4.2 Termination. This Agreement or any specific Service, as specified below in this
Section 4.2, may be terminated prior to the expiration of the relevant Services Term only as
follows:



     (a) with respect to any or all Entergy Services, by Enexus by giving a termination notice to
Entergy, provided that (i) the termination will be effective on the date mutually
agreed by the Parties to be the effective date of such termination or, if the Parties are unable to
or have not agreed (for any reason whatsoever) on the effective date within 10 days of receipt of
the termination notice by Entergy, ninety (90) days after the date on which such termination notice
is received by Entergy, and (ii) Enexus shall reimburse Entergy for any and all costs and expenses
incurred by Entergy or any of its Affiliates as a result of such early termination by Enexus,
including Demobilization Costs incurred in order to terminate or reduce the level of services
provided by third parties under Contracts with Entergy or any of its Affiliates, which services are
affected by such early termination, such reimbursement to be due and payable on the Due Date
following Entergy’s receipt of any invoice from Entergy with respect to such costs and expenses,
or, if there are no more Due Dates, within thirty (30) days of Enexus’ receipt of such invoice;



     (b) with respect to any or all Enexus Services, by Entergy by giving a termination notice to
Enexus, provided that (i) the termination will be effective on the date mutually
agreed by the Parties to be the effective date of such termination or, if the Parties are unable to
or have not agreed (for any reason whatsoever) on the effective date within ten (10) days of
receipt of the termination notice by Enexus, ninety (90) days after the date on which such
termination notice is received by Enexus, and (ii) Entergy shall reimburse Enexus for any and all
costs and expenses incurred by Enexus or any of its Affiliates as a result of such early
termination by Entergy, including Demobilization Costs incurred in order to terminate or reduce the
level of services provided by third parties under Contracts with Enexus or any of its Affiliates,
which services are affected by such early termination, such reimbursement to be due and payable on
the Due Date
following Entergy’s receipt of any invoice from Enexus with respect to such costs and
expenses, or, if there are no more Due Dates, within thirty (30) days of Entergy’s receipt of such
invoice;



8









 





     (c) with respect to any Services that are adversely affected by a breach, by the non-breaching
Party if the other Party fails to observe or perform in any material respect any term, obligation,
or condition of this Agreement and the defaulting Party does not cure such failure within thirty
(30) days after written demand by the first Party, provided that if the defaulting
Party begins promptly and diligently to cure such breach in accordance with this provision and such
breach is not capable of being cured within such 30-day period, the defaulting Party shall have up
to an additional thirty (30) days to cure such breach if it demonstrates that it is reasonably
capable of curing such breach within such additional 30-day period;



     (d) with respect to the entire Agreement, by either Party if the other Party makes a general
assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for
reorganization or rearrangement under the bankruptcy laws, or if a petition in bankruptcy is filed
against such other Party and is not dismissed within thirty (30) days after the filing, or if a
receiver or trustee is appointed for all or a material portion of the property or assets used by
the other Party to perform Services hereunder; or



     (e) with respect to any Services that are adversely affected by a Force Majeure, by either
Party if Service Provider fails to perform in any material respect its obligation to perform such
Services as a result of circumstances of Force Majeure and such Force Majeure continue to exist for
at least sixty (60) consecutive days.



     4.3 Rights and Obligations Upon Termination. Upon expiration of the Services Term or
in the event of a termination pursuant to Section 4.2, no Party, nor any of its Affiliates, shall
have any liability or further obligation to any other Party or any of its Affiliates pursuant to
this Agreement, except: (i) that the provisions of Sections 3 (to the extent of amounts accrued
thereunder through the date of such expiration or termination), 4, 5, 6, 9, 11, 12, 13, 14 and 15
shall survive any such expiration or termination and not be extinguished thereby; and (ii) any
Party nevertheless shall be entitled to seek any remedy to which it may be entitled at law or in
equity for the violation or breach by the other Party of any agreement, covenant, representation,
warranty, or indemnity contained in this Agreement that occurs prior to such expiration or
termination.



     4.4 Demobilization Costs. In the event of a termination of some or all of the
Services in accordance with Section 4.2(a) or 4.2(b), the relevant Service Recipient shall
reimburse the relevant Service Provider for all reasonable demobilization costs actually incurred
by the Service Provider as a result of a reduction in or termination of Services pursuant to
Section 4.2(a) or 4.2(b), as the case may be, up to an amount not to exceed $                     (the
“Demobilization Costs”). The Service Provider shall use all reasonable efforts to minimize the
incurrence of such Demobilization Costs. For the avoidance of doubt, Demobilization Costs shall
include those types of costs specified on Schedule C.


5. Return of Leased Property or Licensed Software. Service Recipient shall be liable for all
costs and expenses incurred by Service Provider or any of its Affiliates resulting from any delay
or failure of Service Recipient to return to Service Provider or any licensor, as applicable, any
leased property or licensed software that is included as part of the Services provided to such
Service Recipient upon (i) the termination of the relevant Services as provided herein, or (ii) the




9









 





expiration of the term of the applicable lease or license, provided that Services Provider has
provided Service Recipient with at least sixty (60) days prior written notice of such
expiration.



6. Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.6, SECTION 15.22, OR OTHERWISE IN ANY
SCHEDULE HERETO, EACH PARTY ACKNOWLEDGES AND AGREES (I) THAT ALL SERVICES ARE PROVIDED BY SERVICE
PROVIDER ON AN “AS IS” BASIS, AND (II) THAT NEITHER SERVICE PROVIDER NOR ANY MEMBER OF ITS GROUP
MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, TO SERVICE
RECIPIENT OR ANY OF ITS SUBSIDIARIES WITH RESPECT TO THE SERVICES, ANY EQUIPMENT OR MATERIALS
PROVIDED UNDER THIS AGREEMENT, OR OTHERWISE HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF
TRADE.



7. Effective Time. This Agreement shall be effective as of the Effective Time.



8. Internal Controls and Procedures. In addition to the record retention requirements of the Separation Agreement, with respect to
the Services for which each Service Provider is responsible, such Service Provider shall maintain
and comply with such internal controls and procedures as are necessary to comply with the
Sarbanes-Oxley Act of 2002 or as otherwise agreed by the Parties to be implemented by the Parties
to comply with internal controls and procedures or applicable Law. In the event a Service
Recipient requires a change to the internal controls or procedures, or requires the implementation
of additional internal controls or procedures, related to the Services required to be provided to
such Service Recipient in order for such Service Recipient to comply with changes to applicable
Law, Service Provider shall change or add to such Service Provider’s internal controls or
procedures related to such Services as reasonably requested by such Service Recipient;
provided, however, in connection with a Service Provider changing or adding to
internal controls or procedures as required by the foregoing, Service Recipient shall pay for any
and all additional costs and expenses associated with the implementation or maintenance of the
applicable change or addition; provided, further, however, that if such
change or addition is required for the compliance by both Parties with a Law applicable to both
Parties, the Parties shall negotiate in good faith an equitable sharing of the costs and expenses
associated with such change or addition.



9. Books and Records; Audits.




     9.1 Books and Records. Each Party shall keep and maintain books, records, accounts
and other documents sufficient to reflect accurately and completely the transactions conducted, and
all associated costs incurred, pursuant to this Agreement. Such records shall include receipts,
invoices, memoranda, vouchers, inventories, timesheets and accounts pertaining to the
Services, as well as complete copies of all contracts, purchase orders, service agreements and
other such arrangements entered into in connection therewith.



     9.2 Audit of Performance. Each Party shall have access to and the right to inspect
all records maintained by the other Party directly related to the Services, as is reasonably
necessary



10









 







for the purposes of verifying the other Party’s compliance with this Agreement, including
auditing and verifying costs or expenses claimed to be due and payable hereunder. Such access
shall be available at reasonable times on Business Days during business hours and under reasonable
conditions with a minimum of at least ten (10) days prior written notice. Each Party shall keep
and preserve all such records for a period of at least five (5) years from and after end of the
relevant Services Term; provided that this Section 9.2 does not preclude a Party from preserving
such records for a longer period pursuant to such Party’s records management programs, policies or
procedures.



     9.3 Audit Assistance. Each Party and its Subsidiaries (each an “Audited Party”) are
or may be subject to audit by Governmental Entities, the Audited Party’s third party or internal
auditor, the Audited Party’s customers, other Persons that are parties to contracts with the
Audited Party, in each case pursuant to applicable Law, contractual provision, or request of the
Audited Party’s board of directors (or its audit committee) (each an “Auditing Entity”). If an
Auditing Entity exercises its right to audit an Audited Party’s books, records, documents,
accounting practices or procedures, internal controls and procedures, or operational, financial or
legal practices and procedures, and such audit relates to the Services required to be provided to,
or from, the Audited Party hereunder, upon written request of the Audited Party, the other Party
shall, within a reasonable period of time, provide, at the sole cost and expense of the Audited
Party, all assistance, records and access reasonably requested by the Audited Party in responding
to such audits (including documents related to testing methodologies, test results, audit reports
of significant findings, and remediation plans with respect to any deficiencies with respect to
such other Party’s internal controls or procedures, and work papers of such other Party’s third
party or internal auditor that relate to the matter being subject of such audit), to the extent
that such assistance, records or access is within the reasonable control of such other Party. If
an audit report of an Audited Party’s third party or internal auditor relating to such audit
identifies any deficiencies in the other Party’s internal controls and procedures directly related
to a Service provided to the Audited Party, the other Party shall, at the sole cost and expense of
the Audited Party, implement such reasonable changes to such Service to correct such deficiencies
to ensure compliance with applicable Law in connection with such Service; provided, however, that
if such correction is required for the compliance by both Parties with a Law applicable to both
Parties, the Parties shall negotiate in good faith an equitable sharing of the costs and expenses
associated with such correction.


10. Compliance with Laws and Governmental Requirements. Each Party shall be responsible for compliance with all Laws affecting its Business. Each
Service Recipient shall be responsible for any use such Service Recipient may make of the Services
to assist it in complying with applicable Laws. Each Service Provider shall comply with (i) all
Laws applicable to the provision by it of the Services hereunder; and (ii) the accounting and
reporting requirements of any Governmental Entity having jurisdiction over it or
any member of its Group with respect to their respective activities related to such Service
Provider’s performance of the Services.




11









 







11. Indemnification; Remedy and Limitation of Liability.




     11.1 Indemnity by Service Provider.



          (a) Service Provider indemnifies Service Recipient, including its Subsidiaries, personnel,
officers, directors, employees and agents (“Indemnified Party”) for all claims, charges,
complaints, expenses (including reasonable attorneys’ fees), losses, liabilities, or damages of any
kind whatsoever (including employment and benefit claims) brought by or payable to Service
Provider’s own employees or contractors providing Services on Service Provider’s behalf that arise
out of the Services provided by the Service Provider pursuant to this Agreement, except (i) in
instances that constitute Willful Misconduct or Gross Negligence by the indemnified party; and (ii)
instances involving intentional torts such as discrimination, harassment, defamation or other
intentional torts by any employee, agent or other representative of an Indemnified Party.




          (b) Service Provider indemnifies each Indemnified Party for all claims by the Indemnified
Party arising out of Service Provider’s acts or omissions of Service Provider’s own employees,
subsidiaries or contractors providing Services on Service Provider’s behalf that constitute Willful
Misconduct or Gross Negligence; provided that, notwithstanding any other provisions of this
Agreement, no such act or omission shall constitute Willful Misconduct or Gross Negligence to the
extent that it does not cause or result in a breach of Section 2.6. The indemnity provided
pursuant to this subsection (b) excludes claims arising out of nuclear incidents or nuclear energy
hazards and is capped at the total of net payments for services received by Service Provider from
Service Recipient during the 6 month period preceding the event giving rise to indemnification.




     11.2 Defense of Indemnified Claims.



          (a) If either Entergy or Enexus, or any other person entitled to indemnification pursuant to
any indemnification covenant contained in this Agreement (an “Indemnitee”) receives notice
of any claim, or of the commencement of any action or proceeding with respect to which either
Entergy or Enexus is obligated to provide indemnification (the “Indemnitor”), the
Indemnitee shall promptly give the Indemnitor written notice of such claim, action or proceeding.
The notice shall specify, if known, the amount or an estimate of the amount of liability arising
from the claim, action or proceeding.




          (b) The Indemnitee shall permit the Indemnitor to assume the defense of any such claim, action
or proceeding; provided that counsel for the Indemnitor, who shall conduct the defense of the
claim, action or proceeding, shall be approved by the Indemnitee, whose approval shall not be
unreasonably withheld. Notwithstanding the foregoing, (i) if the Indemnitee reasonably determines
that there may be a conflict between the positions of the Indemnitor and the Indemnitee in
connection with the claim, action, or proceeding, or that there may be legal defenses available to
the Indemnitee different from or in addition to those available to the Indemnitor, then counsel for
the Indemnitee shall be entitled to conduct a defense to the
extent reasonably necessary to protect the interests of the Indemnitee, and (ii) in any event,
the Indemnitee shall be entitled, at its own cost and expense, to have Indemnitee’s counsel
participate in, though not conduct, the defense.




12









 








          (c) The Indemnitor shall not, except with the consent of each Indemnitee, consent to the entry
of any judgment, or enter into any settlement that does not include as an unconditional term the
giving by the claimant or plaintiff to the Indemnitee a release from all liability in respect of
the claim, action or proceeding. The Indemnitee shall not settle or compromise any claim, action
or proceeding for which it asserts a right to indemnification without the prior written consent of
the Indemnitor, which consent shall not be unreasonably withheld.




     11.3 Remedy. If Service Provider breaches Section 2.6, Service Recipient may at its
option require Service Provider to correct or re-perform such Services at Service Provider’s sole
cost; provided that the cost of such correction or re-performance to be borne by Service Provider
shall be capped at the total of net payments for Services received by Service Provider during the 6
month period preceding the event giving rise to correction or re-performance, and any additional
cost shall be borne by Service Recipient. Service Recipient’s right to require such correction or
re-performance and any liability under Service Provider’s indemnification obligations, shall be the
exclusive remedies available to Service Recipient where Service Recipient is not enforcing its
rights, if any, to terminate this Agreement, and shall be in lieu of any claim for monetary
damages.



     11.4 Limitation on Liability. Neither Party, nor any of its Subsidiaries, agents,
subcontractors, representatives, employees, officers, or directors, shall be liable under this
Agreement to the other Party, or the other Party’s Subsidiaries, agents, subcontractors, or
customers, for any indirect, special, punitive, incidental or consequential damages arising out of,
or in any way related to, the services provided under this Agreement, including, without
limitation, (1) any alleged breach of fiduciary duty, (2) loss of profits or business
opportunities, (3) damages suffered as a result of the loss of the use of the Facilities or
equipment, (4) cost of purchased or replacement power (including any differential in fuel costs),
(5) cost of capital, (6) damage to reputation, (7) damage to credit worthiness or credit standing,
or (8) diminution of stock price or value, with respect to any claim based on or in any way
connected with this Agreement, whether arising in contract (including, without limitation, breach
of warranty), tort (including, without limitation, negligence, strict liability or breach of
fiduciary duty), under the laws of real property, or under any other legal or equitable theory and
regardless as to whether either or both of the Parties knew or should have known of the possibility
of such damages.


12. Dispute Resolution. Any controversy, dispute or claim arising out of, in connection with, or in relation to the
interpretation, performance, nonperformance, validity, termination or breach of this Agreement or
otherwise arising out of, or in any way related to this Agreement or the transactions contemplated
hereby, including any claim based on contract, tort, statute or constitution (collectively,
“Agreement Dispute”), shall be governed by, and be subject to, the provisions of Article IX
of the Separation Agreement, which provisions are hereby incorporated by reference into this
Agreement; provided, however, (i) any references to “Agreement” or “Agreement
Disputes” in such Article IX as incorporated herein shall be deemed to be references to this
Agreement and Agreement Disputes as defined in this Agreement; (ii) the last sentence of Section
9.1(a) of the Separation Agreement (i.e., a dollar threshold for recourse with respect to
“Agreement Disputes”) shall not be incorporated by reference into, or have any effect with respect
to, this Agreement; and (iii) the provisions of Section 9.12 of the Separation Agreement
(Limitation on Actions) shall be revised to read as follows for purposes of this Agreement:


13









 






“Notwithstanding anything to the contrary in this Agreement, no Action shall be commenced
(including the dispute resolution procedures set forth in this Article IX) by a Party against the
other Party asserting any claim arising from (i) breach of any obligation of such other Party to
perform a Service under this Agreement more than one hundred and eighty (180) days after such first
Party acquires, or reasonably should have acquired, knowledge of such breach, or (ii) breach of any
other obligation of such other Party under this Agreement more than 12 months after such first
Party acquires, or reasonably should have acquired, knowledge of such breach; provided, however,
regardless of such first Party’s knowledge of the facts giving rise to its claim based on a breach
of this Agreement, no Action shall be commenced by such first Party against the other Party more
than 36 months after the occurrence of the initial event giving rise to such claim for such breach
(it being understood that if no such Action is commenced within such 180-day period, 12-month
period, or 36-month periods, as applicable, the breaching Party shall be discharged from liability
for such breach).”



13. Property Rights. The Parties acknowledge and agree that nothing in this Agreement is intended to transfer any
right, title, or interest in and to any tangible, intangible, real or personal property (including
any and all intellectual property rights). Notwithstanding any materials, deliverables, or other
products that may be created or developed by Service Provider or its Affiliates from the date
hereof through the expiration or termination of the Services Term, Service Provider does not hereby
convey, nor does Service Recipient or any of its Subsidiaries hereby obtain, any right, title, or
interest in or to any of Service Provider’s or any of its Affiliates’ equipment, materials,
deliverables, products, or any other rights or property used to provide the Services. All customer
and personnel data, files and input and output materials and the media upon which they are located
that are supplied by Service Recipient or any of its Affiliates in connection with this Agreement
shall remain Service Recipient’s or such Subsidiary’s property, respectively, and Service Provider
shall not have any rights or interests with respect thereto.



14. Confidentiality.




     14.1 Nondisclosures, Restricted Data and Safeguards Information.



          (a) Each Party (the “Receiving Party”) shall maintain the confidentiality of all
proprietary, non-public data and information relating to the business affairs of the other Party
(the “Disclosing Party”) which the Receiving Party may have access to or receive from it.
The Receiving Party shall treat all data, reports and other written documents developed by the
Disclosing Party and provided to it as part of the services pursuant to this Agreement as the
proprietary information of the Disclosing Party. The Receiving Party shall not publish or
otherwise disclose to anyone outside of the Disclosing Party except to the Receiving Party’s
affiliates, and its and their agents, subcontractors, attorneys or consultants who are under
obligations of confidentiality, without the prior written consent of the Disclosing Party, and
the Receiving Party shall not use (other than in connection with the performance by the Receiving
Party and its affiliates and subcontractors of its obligations under this Agreement), any of the
proprietary, non-public information provided to it by the Disclosing Party.




          (b) Each Party agrees that, unless otherwise required by law, it will not permit any person to
have access to Restricted Data of the other Party, as defined in 42 U.S.C. §



14









 






2014(y), until and
unless the Federal Office of Personnel Management shall have made an investigation and report to
the NRC on the character, associations and loyalty of such person and the NRC shall have determined
that permitting such person to have access to Restricted Data will not endanger the common defense
and security




          (c) Notwithstanding any other provision of this Agreement, any access to Safeguards
Information, as defined in 10 C.F.R. § 73.2, shall be subject to the limitations and conditions of
10 C.F.R. § 73.21. Both Parties agree that any information provided under this Agreement will not
be used or controlled in a manner that would (1) compromise any part of the safeguards plans for
the Facilities, or (2) otherwise be in contravention of applicable Laws.




     14.2 Notification. The Parties further agree to notify each other of any requests by
a third party, including any regulatory body, for the disclosure of any information to be treated
as confidential pursuant to this Section 14 and to reasonably cooperate with each other in
attempting to preserve the confidentiality of such information to the greatest extent consistent
with applicable court orders, laws or regulations.



     14.3 Permitted Disclosures. Notwithstanding anything to the contrary herein, neither
Party nor the employees of either of them shall be restricted in any way from providing safety or
other information to the NRC on matters within the NRC’s regulatory responsibilities or from
disclosing information to the extent required for compliance with applicable Laws, participation in
the Electric Utility Cost Group or PL-113. The Parties shall also be entitled to disclose the
terms of this Agreement to financial institutions or insurance and bonding companies to the extent
necessary to secure and enforce any insurance and other financial protection maintained by a Party
in connection with the Services it provides under this Agreement.



15. Miscellaneous.




     15.1 Complete Agreement; Construction. This Agreement, including the Schedules
attached to the body of this Agreement, shall constitute the entire agreement between the Parties
with respect to the subject matter hereof and shall supersede all previous negotiations,
commitments and writings with respect to such subject matter. In the event of any conflict between
the terms and conditions of the body of this Agreement and the terms and conditions of any Schedule
hereto, the terms and conditions of such Schedule shall control. In the event of any conflict
between the terms and conditions of this Agreement and the terms and conditions of the Separation
Agreement or any other Ancillary Agreement, the terms and conditions of this Agreement shall
control.



     15.2 Counterparts. This Agreement may be executed in more than one counterparts, all
of which shall be considered one and the same agreement, and, except as expressly provided
in Section 7, shall become effective when one or more such counterparts have been signed by
each of the Parties and delivered to the other Parties. Execution of this Agreement or any other
documents pursuant to this Agreement by facsimile or other electronic copy of a signature shall be
deemed to be, and shall have the same effect as, execution by original signature.



15









 





     15.3 Survival of Agreement. Except as otherwise contemplated by this Agreement, all
covenants and agreements of the Parties contained in this Agreement shall survive the Effective
Time and remain in full force and effect in accordance with their applicable terms.



     15.4 Expenses. Except as otherwise expressly provided in this Agreement, the Parties
agree that all out-of-pocket fees and expenses incurred and directly related to the transactions
contemplated hereby shall be borne and paid by the Person incurring such cost or Liability.



     15.5 Notices. All notices, requests, claims, demands and other communications under
this Agreement, as between the Parties, shall be in writing and shall be given or made (and shall
be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business
Day, in which case it shall be deemed to have been duly given or made on the next following
Business Day) by delivery in person, by overnight courier service, by facsimile with receipt
confirmed (followed by delivery of an original via overnight courier service) or by registered or
certified mail (postage prepaid, return receipt requested) to the respective Parties at the
following addresses (or at such other address for a Party as shall be specified in a notice given
in accordance with this Section 15.5):


To Entergy:



Entergy Corporation

                                        

Attn: General Counsel

Facsimile:                                         



To Enexus:



Enexus Energy Corporation

                                        

Attn: General Counsel

Facsimile:                                         




     15.6 Waivers. The failure of any Party to require strict performance by any other Party of any provision in
this Agreement will not waive or diminish that Party’s right to demand strict performance
thereafter of that or any other provision hereof.



     15.7 Amendments. Subject to the terms of Section 15.10, this Agreement may not be
modified or amended except by an agreement in writing signed by each of the Parties.



     15.8 Assignment. Except as otherwise expressly provided for in this Agreement, this
Agreement shall not be assignable, in whole or in part, by any Party without the prior written
consent of the other Party, and any attempt to assign any rights or obligations arising under this
Agreement without such consent shall be null and void; provided, that a Party may assign this
Agreement in connection with a merger transaction in which such Party is not the surviving entity
or the sale by such Party of all or substantially all of its Assets, and upon the effectiveness of
such assignment, the assigning Party shall be released from all of its obligations under this



16









 







Agreement if the surviving entity of such merger or the transferee of such Assets shall agree in
writing, in form and substance reasonably satisfactory to the other Party, to be bound by the terms
of this Agreement as if named as a “Party” hereto.



     15.9 Successors and Assigns. Subject to Section 15.8, the provisions of this
Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of
and be enforceable by (and against) the Parties and their respective successors and permitted
transferees and assigns.



     15.10 Termination. Notwithstanding anything to the contrary herein, this Agreement
may be terminated and abandoned at any time prior to the Effective Time by and in the sole
discretion of Entergy without the approval of Enexus or the stockholders of Entergy. In the event
of such termination, no Party shall have any liability of any kind to any other Party or any other
Person. After the Effective Time, this Agreement may not be terminated except (i) by an agreement
in writing signed by each of the Parties, or (ii) as expressly provided for in this Agreement.



     15.11 Subsidiaries. Each of the Parties shall cause to be performed all actions,
agreements and obligations set forth herein to be performed by any Subsidiary or Affiliate of such
Party or by any entity that becomes a Subsidiary or Affiliate of such Party on and after the
Distribution Date.



     15.12 Third Party Beneficiaries. Except as otherwise expressly provided in this
Agreement, this Agreement is solely for the benefit of the Parties and should not be deemed to
confer upon third parties any remedy, claim, liability, reimbursement, cause of action or other
right in excess of those existing without reference to this Agreement.



     15.13 Title and Headings. Titles and headings to sections herein are inserted for the
convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.



     15.14 Schedules. The Schedules attached hereto are incorporated herein by reference
and shall be construed with and as an integral part of this Agreement to the same extent as if the
same had been set forth verbatim herein.



     15.15 Governing Law. This Agreement shall be governed by and construed in accordance
with the Laws of the State of Delaware.



     15.16 Consent to Jurisdiction. Subject to the provisions of Section 12, each of the
Parties irrevocably submits to the exclusive jurisdiction of any court sitting in New Castle
County, Delaware (the “Delaware Courts”), for the purposes of any suit, action or other
proceeding to compel arbitration or for provisional relief in aid of arbitration in accordance
with Section 12 or for provisional relief to prevent irreparable harm, and to the non-exclusive
jurisdiction of the Delaware Courts for the enforcement of any award issued thereunder. Each of
the Parties further agrees that service of any process, summons, notice or document by United
States registered mail to such Party’s respective address set forth in Section 15.5 shall be
effective service of process for any action, suit or proceeding in the Delaware Courts with respect
to any matters to which it has submitted to jurisdiction in this Section 15.16. Each of the



17









 







Parties irrevocably and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the
Delaware Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead
or claim in any such court that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.



     15.17 Specific Performance. The Parties agree that irreparable damage would occur in
the event that the provisions of this Agreement were not performed in accordance with their
specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an
injunction or injunctions to enforce specifically the terms and provisions hereof in any
arbitration in accordance with Section 12, (ii) provisional or temporary injunctive relief in
accordance therewith in any Delaware Court, and (iii) enforcement of any such award of an arbitral
tribunal or a Delaware Court in any court of the United States, or any other any court or tribunal
sitting in any state of the United States or in any foreign country that has jurisdiction, this
being in addition to any other remedy or relief to which they may be entitled.



     15.18 Waiver of Jury Trial. SUBJECT TO SECTIONS 12, 15.16 AND 15.17 HEREIN, EACH OF
THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND
PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.18.



     15.19 Severability. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby, and the Parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions, the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.



     15.20 Force Majeure. No Party (or any Person acting on its behalf) shall have any
liability or responsibility for failure to fulfill any obligation (other than a payment obligation)
under this Agreement so long as and to the extent to which the fulfillment of such obligation is
prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure.
A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the
occurrence of any such event: (a) notify the other Party of the nature and extent of any such Force
Majeure condition, and (b) use due diligence to remove any such causes and resume performance under
this Agreement as soon as reasonably practicable.



18









 





     15.21 Construction. The Parties have participated jointly in the negotiation and
drafting of this Agreement. This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or causing any instrument
to be drafted.



     15.22 Authorization. Each of the Parties hereby represents and warrants that it has
the power and authority to execute, deliver and perform this Agreement, that this Agreement has
been duly authorized by all necessary corporate action on the part of such Party, that this
Agreement constitutes a legal, valid and binding obligation of each such Party and that the
execution, delivery and performance of this Agreement by such Party does not contravene or conflict
with any provision of law or of its charter or bylaws or any material agreement, instrument or
order binding on such Party.



     15.23 References; Interpretations. References in this Agreement to any gender include
references to all genders, and references to the singular include references to the plural and vice
versa. Unless the context otherwise requires:




          (i) the words “include”, “includes” and “including” when used in this Agreement shall be
deemed to be followed by the phrase “without limitation”;




          (ii) references in this Agreement to Sections and Schedules shall be deemed references
to Sections of, and Schedules attached to, this Agreement; and




          (iii) the words “hereof”, “hereby” and “herein” and words of similar meaning when used
in this Agreement refer to this Agreement in its entirety and not to any particular Section
or provision of this Agreement.



     15.24 Status of Service Provider as Independent Contractor. Each Service Recipient
expressly acknowledges that each Service Provider, its Affiliates, and each of their respective
employees, agents, subcontractors and representatives are “independent contractors,” and nothing in
this Agreement is intended and nothing shall be construed to create an employer/employee,
partnership, joint venture or other similar relationship between any Service Recipient and Service
Provider, its Affiliates, or each of their respective employees, agents, subcontractors and
representatives. In addition, each Service Provider shall have the authority and responsibility to
elect the means, manner and method of performing the Services required to be provided by it under
this Agreement. This Agreement shall not be interpreted or construed to create an association,
joint venture, partnership, or agency between the Parties or to impose any partnership or fiduciary
obligation or related liability upon any Party.



[Signature Page Follows]





19









 








          IN WITNESS WHEREOF, the Parties caused this Transition Services Agreement to be duly executed
as of the day and year first above written.




	 	 	 	 	 	 	 
	 	 	ENTERGY CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ENEXUS ENERGY CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title: