Exhibit B-2(d)
Entergy Mississippi, Inc.
$100,000,000
First Mortgage Bonds,
5.15% Series due February 1, 2013
UNDERWRITING AGREEMENT
January 27, 2003
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Scotia Capital (USA) Inc.
The Xxxxxxxx Capital Group, L.P.
x/x XXX Xxxxxxx Xxxxxxx, Xxx.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The undersigned, Entergy Mississippi, Inc., a Mississippi
corporation (the "Company"), proposes to issue, and sell
severally to the underwriters set forth in Schedule I attached
hereto (the "Underwriters," which term, when the context
permits, shall also include any underwriters substituted as
hereinafter in Section 11 provided), for whom BNY Capital
Markets, Inc. and X.X. Xxxxxx Securities Inc. are acting as
representatives, an aggregate of $100,000,000 principal amount of
the Company's First Mortgage Bonds, 5.15% Series due February 1,
2013 (the "Bonds"), as follows:
SECTION 1. Purchase and Sale
. On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set
forth, the Company shall issue and sell to each of the
Underwriters, and each Underwriter shall purchase from the
Company, at the time and place herein specified, severally and
not jointly, the Bonds at 99.249% of the principal amount
thereof, in the principal amount set forth opposite the name of
such Underwriter in Schedule I attached hereto.
SECTION 2. Description of Bonds
. The Bonds shall be issued under and pursuant to the
Company's Mortgage and Deed of Trust, dated as of February 1,
1988, with The Bank of New York (successor to Bank of Montreal
Trust Company), as Corporate Trustee (the "Corporate Trustee"),
and Xxxxxxx X. Xxxxxxxxx (successor to Z. Xxxxxx Xxxxxxxxx), as
Co-Trustee (the "Co-Trustee" and, together with the Corporate
Trustee, the "Trustees"), as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
and as it will be further amended and supplemented by the
Nineteenth Supplemental Indenture, dated as of January 1, 2003
(the "Supplemental Indenture"). Said Mortgage and Deed of Trust
as so amended and supplemented is hereinafter referred to as the
"Mortgage." The Bonds and the Supplemental Indenture shall have
the terms and provisions described in the Prospectus (as defined
herein), provided that subsequent to the date hereof and prior to
the Closing Date (as defined herein) the form of the Supplemental
Indenture may be amended by mutual agreement between the Company
and the Underwriters.
SECTION 3. Representations and Warranties of the Company
. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Mississippi and has the necessary corporate power and authority
to conduct the business that it is described in the Prospectus as
conducting and to own and operate the properties owned and
operated by it in such business and is in good standing and duly
qualified to conduct such business as a foreign corporation in
the State of Arkansas.
(b) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
3 (File No. 333-53554) for the registration of $540,000,000
aggregate offering price of the Company's securities (including
$55,000,000 of the Company's first mortgage bonds (the "Mortgage
Bonds") carried forward from a prior registration statement),
including the Bonds, under the Securities Act of 1933 (the
"Securities Act") ($295,000,000 of which securities remain
unsold), and such registration statement has become effective.
The Company qualifies for use of Form S-3 for the registration of
the Bonds, and the Bonds are registered under the Securities Act.
The combined prospectus forming a part of such registration
statement pursuant to Rule 429 under the Securities Act, at the
time such registration statement (or the most recent amendment
thereto filed prior to the time of effectiveness of this
Underwriting Agreement) became effective, including all documents
incorporated by reference therein at that time pursuant to
Item 12 of Form S-3, is hereinafter referred to as the "Basic
Prospectus." In the event that (i) the Basic Prospectus shall
have been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to securities of the Company other than the
Bonds) prior to the time of effectiveness of this Underwriting
Agreement, including without limitation by any preliminary
prospectus supplement relating to the Bonds, or (ii) the Company
shall have filed documents pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") after
the time such registration statement (or the most recent
amendment thereto filed prior to the time of effectiveness of
this Underwriting Agreement) became effective and prior to the
time of effectiveness of this Underwriting Agreement (but
excluding documents incorporated therein by reference relating
solely to securities of the Company other than the Bonds), which
are incorporated or deemed to be incorporated by reference in the
Basic Prospectus pursuant to Item 12 of Form S-3, the term "Basic
Prospectus" as used herein shall also mean such prospectus as so
amended, revised or supplemented and reflecting such
incorporation by reference. Such registration statement in the
form in which it became effective and as it may have been amended
by all amendments thereto as of the time of effectiveness of this
Underwriting Agreement (including, for these purposes, as an
amendment any document incorporated or deemed to be incorporated
by reference in the Basic Prospectus), and the Basic Prospectus
as it shall be supplemented to reflect the terms of the offering
and sale of the Bonds by a prospectus supplement (a "Prospectus
Supplement") to be filed with the Commission pursuant to Rule
424(b) under the Securities Act ("Rule 424(b)"), are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively.
(c) (i) After the time of effectiveness of this Underwriting
Agreement and during the time specified in Section 6(d), the
Company will not file any amendment to the Registration Statement
or any supplement to the Prospectus (except any amendment or
supplement relating solely to securities of the Company other
than the Bonds), and (ii) between the time of effectiveness of
this Underwriting Agreement and the Closing Date, the Company
will not file any document that is to be incorporated by
reference in, or any supplement to, the Basic Prospectus, in
either case, without prior notice to the Underwriters and to
Pillsbury Winthrop LLP ("Counsel for the Underwriters"), or any
such amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes of
this Underwriting Agreement, any document that is filed with the
Commission after the time of effectiveness of this Underwriting
Agreement and incorporated or deemed to be incorporated by
reference in the Prospectus (except documents incorporated by
reference relating solely to securities of the Company other than
the Bonds) pursuant to Item 12 of Form S-3 shall be deemed a
supplement to the Prospectus.
(d) The Registration Statement, at the Effective Date (as
defined below) and the Mortgage, at such time, fully complied,
and the Prospectus, when delivered to the Underwriters for their
use in making confirmations of sales of the Bonds and at the
Closing Date, as it may then be amended or supplemented, will
fully comply, in all material respects with the applicable
provisions of the Securities Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations
did or will be deemed to comply therewith. The documents
incorporated or deemed to be incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, on the date filed
with the Commission pursuant to the Exchange Act, fully complied
or will fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of
the Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. On the
later of (i) the date the Registration Statement (or the most
recent post-effective amendment thereto, but excluding any post-
effective amendment relating solely to securities of the Company
other than the Bonds) was declared effective by the Commission
under the Securities Act and (ii) the date that the Company's
most recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act (such date is hereinafter
referred to as the "Effective Date"), the Registration Statement
did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time the Prospectus is delivered
to the Underwriters for their use in making confirmations of
sales of the Bonds and at the Closing Date, the Prospectus, as it
may then be amended or supplemented, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading
and, on said dates and at such times, the documents then
incorporated or deemed to be incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, when read together
with the Prospectus, or the Prospectus, as it may then be amended
or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing
representations and warranties in this paragraph (d) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by
the Underwriters or on behalf of any Underwriter specifically for
use in connection with the preparation of the Registration
Statement or the Prospectus, as they may be then amended or
supplemented, or to any statements in or omissions from the
statements of eligibility of the Trustees on Form T-1 and Form T-
2, as they may then be amended, under the Trust Indenture Act
filed as exhibits to the Registration Statement (the "Statements
of Eligibility").
(e) The issuance and sale of the Bonds and the fulfillment of
the terms of this Underwriting Agreement will not result in a
breach of any of the terms or provisions of, or constitute a
default under, the Mortgage or any indenture or other agreement
or instrument to which the Company is now a party.
(f) Except as set forth or contemplated in the Prospectus, as it
may be then amended or supplemented, the Company possesses
adequate franchises, licenses, permits, and other rights to
conduct its business and operations as now conducted, without any
known conflicts with the rights of others which could have a
material adverse effect on the Company.
(g) The Company maintains (x) systems of internal controls and
processes sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences; and (y) disclosure controls and procedures (as
defined in Rule 13a-14(c) under the Exchange Act).
SECTION 4. Offering
. The Company is advised by the Underwriters that they
propose to make a public offering of their respective portions of
the Bonds as soon after the effectiveness of this Underwriting
Agreement as in their judgment is advisable. The Company is
further advised by the Underwriters that the Bonds will be
offered to the public at the initial public offering price
specified in the Prospectus Supplement plus accrued interest
thereon, if any, from the Closing Date.
SECTION 5. Time and Place of Closing; Delivery of the Bonds
. Delivery of the Bonds and payment of the purchase price
therefor by wire transfer of immediately available funds shall be
made at the offices of Xxxxxx Xxxx & Priest LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York time, on
January 31, 2003, or at such other time on the same or such other
day as shall be agreed upon by the Company and BNY Capital
Markets, Inc. and X.X. Xxxxxx Securities Inc., as representatives
of the Underwriters, or as may be established in accordance with
Section 11 hereof. The hour and date of such delivery and
payment are herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in book-
entry only form through the facilities of The Depository Trust
Company in New York, New York. The certificate for the Bonds
shall be in the form of one typewritten global bond in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon between the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will deliver to
the Underwriters a conformed copy of the Registration Statement
in the form that it or the most recent post-effective amendment
thereto became effective, certified by an officer of the Company
to be in such form.
(b) The Company will deliver to the Underwriters as many copies
of the Prospectus (and any amendments or supplements thereto) as
the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with the
Commission pursuant to and in compliance with Rule 424(b) and
will advise BNY Capital Markets, Inc. and X.X. Xxxxxx Securities
Inc., as representatives of the Underwriters, promptly of the
issuance of any stop order under the Securities Act with respect
to the Registration Statement or the institution of any
proceedings therefor of which the Company shall have received
notice. The Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt removal
thereof if issued.
(d) During such period of time as the Underwriters are required
by law to deliver a prospectus after this Underwriting Agreement
has become effective, if any event relating to or affecting the
Company, or of which the Company shall be advised by the
Underwriters in writing, shall occur which in the Company's
opinion should be set forth in a supplement or amendment to the
Prospectus in order to make the Prospectus not misleading in the
light of the circumstances when it is delivered to a purchaser of
the Bonds, the Company will amend or supplement the Prospectus by
either (i) preparing and filing with the Commission and
furnishing to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the
Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will supplement
or amend the Prospectus, so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. Unless
such event relates solely to the activities of the Underwriters
(in which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 6(d) shall be borne by the Company
until the expiration of nine months from the time of
effectiveness of this Underwriting Agreement, and such expenses
shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to its security
holders, as soon as practicable, an earning statement (which need
not be audited) covering a period of at least twelve months
beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner, as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the
Company will furnish such proper information as may be lawfully
required by, and will otherwise cooperate in qualifying the Bonds
for offer and sale under, the blue sky laws of such jurisdictions
as the Underwriters may reasonably designate, provided that the
Company shall not be required to qualify as a foreign corporation
or dealer in securities, to file any consents to service of
process under the laws of any jurisdiction, or to meet any other
requirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees,
expenses and taxes (except transfer taxes) in connection with (i)
the preparation and filing of the Registration Statement and any
post-effective amendments thereto, (ii) the printing, issuance
and delivery of the Bonds and the preparation, execution,
printing and recordation of the Supplemental Indenture, (iii)
legal counsel relating to the qualification of the Bonds under
the blue sky laws of various jurisdictions in an amount not to
exceed $3,500, (iv) the printing and delivery to the Underwriters
of reasonable quantities of copies of the Registration Statement,
the preliminary (and any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Bonds and the
Prospectus and any amendment or supplement thereto, except as
otherwise provided in paragraph (d) of this Section 6, (v) the
rating of the Bonds by one or more nationally recognized
statistical rating agencies, (vi) the listing of the Bonds on the
New York Stock Exchange (the "NYSE") and (vii) filings or other
notices (if any) with or to, as the case may be, the National
Association of Securities Dealers, Inc. (the "NASD") in
connection with its review of the terms of the offering. Except
as provided above, the Company shall not be required to pay any
expenses of the Underwriters, except that, if this Underwriting
Agreement shall be terminated in accordance with the provisions
of Section 7, 8 or 12 hereof, the Company will reimburse the
Underwriters for (A) the reasonable fees and expenses of Counsel
for the Underwriters, whose fees and expenses the Underwriters
agree to pay in any other event, and (B) reasonable out-of-pocket
expenses in an aggregate amount not exceeding $15,000, incurred
in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated
profits.
(h) The Company will not sell any additional Mortgage Bonds
without the consent of BNY Capital Markets, Inc. and X.X. Xxxxxx
Securities Inc., as representatives of the Underwriters, until
the earlier to occur of (i) the Closing Date and (ii) the date of
the termination of the fixed price offering restrictions
applicable to the Underwriters. The Underwriters agree to notify
the Company of such termination if it occurs prior to the Closing
Date.
(i) As soon as practicable after the Closing Date, the Company
will make all recordings, registrations and filings necessary to
perfect and preserve the lien of the Mortgage and the rights
under the Supplemental Indenture, and the Company will use its
best efforts to cause to be furnished to the Underwriters a
supplemental opinion of counsel for the Company, addressed to the
Underwriters, stating that all such recordings, registrations and
filings have been made.
SECTION 7. Conditions of Underwriters' Obligations
. The obligations of the Underwriters to purchase and pay
for the Bonds shall be subject to the accuracy on the date hereof
and on the Closing Date of the representations and warranties
made herein on the part of the Company and of any certificates
furnished by the Company on the Closing Date and to the following
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) prior to 5:30 P.M., New York time, on the
second business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon by
the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company, to the effect that no
such stop order has been or is in effect and that no proceedings
for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued and there
shall be in full force and effect, to the extent legally required
for the issuance and sale of the Bonds, orders of the Commission
under the Public Utility Holding Company Act of 1935 (the
"Holding Company Act") authorizing the issuance and sale of the
Bonds on the terms set forth in, or contemplated by, this
Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have received
from Xxxx Xxxxxx Child & Xxxxxxx, Professional Association,
Friday, Xxxxxxxx & Xxxxx, LLP and Xxxxxx Xxxx & Priest LLP
opinions, dated the Closing Date, substantially in the forms set
forth in Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and the
Underwriters with the approval of Counsel for the Underwriters,
and (ii) if the Prospectus shall be supplemented after being
furnished to the Underwriters for use in offering the Bonds, with
changes therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have received
from Counsel for the Underwriters an opinion, dated the Closing
Date, substantially in the form set forth in Exhibit D hereto,
with such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the date this Underwriting Agreement became
effective, the Underwriters shall have received from Deloitte &
Touche LLP, the Company's independent certified public
accountants (the "Accountants"), a letter dated the date hereof
and addressed to the Underwriters to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules audited by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 2001 to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an audit made in accordance with generally accepted
auditing standards and they would not necessarily reveal matters
of significance with respect to the comments made in such letter
and, accordingly, that the Accountants make no representations as
to the sufficiency of such procedures for the purposes of the
Underwriters), nothing has come to their attention which caused
them to believe that, to the extent applicable, (A) the unaudited
financial statements of the Company (if any) included or
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the
related published rules and regulations thereunder; (B) any
material modifications should be made to said unaudited financial
statements for them to be in conformity with generally accepted
accounting principles; and (C) at a specified date not more than
five days prior to the date of the letter, there was any change
in the capital stock of the Company, increase in long-term debt
of the Company, or decrease in its net current assets or
stockholders' equity, in each case as compared with amounts shown
in the most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur, for
declarations of dividends, for the repayment or redemption of
long-term debt, for the amortization of premium or discount on
long-term debt, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus, and (y) set forth in documents filed by
the Company pursuant to Section 13, 14 or 15(d) of the Exchange
Act as specified in Exhibit E hereto, in each case, to the extent
that such amounts, numbers, percentages and information may be
derived from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
(g) At the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date and signed by the President,
a Vice President, the Treasurer or an Assistant Treasurer of the
Company, to the effect that (i) the representations and
warranties of the Company contained herein are true and correct,
(ii) the Company has performed and complied with all agreements
and conditions in this Underwriting Agreement to be performed or
complied with by the Company at or prior to the Closing Date and
(iii) since the most recent date as of which information is given
in the Prospectus, as it may then be amended or supplemented,
there has not been any material adverse change in the business,
property or financial condition of the Company and there has not
been any material transaction entered into by the Company, other
than transactions in the ordinary course of business, in each
case other than as referred to in, or contemplated by, the
Prospectus, as it may then be amended or supplemented.
(h) At the Closing Date, the Underwriters shall have received
duly executed counterparts of the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have received
from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no default (or
an event which, with the giving of notice or the passage of time
or both, would constitute a default) under the Mortgage shall
have occurred.
(k) Prior to the Closing Date, the Underwriters shall have
received from the Company evidence reasonably satisfactory to the
Underwriters that the Bonds have received ratings of at least
Baa2 from Xxxxx'x Investors Service, Inc. and at least BBB+ from
Standard & Poor's Ratings Services.
(l) Between the date hereof and the Closing Date, neither
Xxxxx'x Investors Service, Inc. nor Standard & Poor's Ratings
Services shall have lowered its rating of any of the Company's
outstanding Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no event shall
have occurred with respect to or otherwise affecting the Company,
which, in the reasonable opinion of the Underwriters, materially
impairs the investment quality of the Bonds.
(n) All legal matters in connection with the issuance and sale
of the Bonds shall be satisfactory in form and substance to
Counsel for the Underwriters.
(o) The Company shall furnish the Underwriters with additional
conformed copies of such opinions, certificates, letters and
documents as may be reasonably requested.
If any of the conditions specified in this Section 7 shall
not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations
. The obligations of the Company hereunder shall be subject
to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) At the Closing Date, there shall have been issued and there
shall be in full force and effect, to the extent legally required
for the issuance and sale of the Bonds orders of the Commission
under the Holding Company Act authorizing the issuance and sale
of the Bonds on the terms set forth in, or contemplated by, this
Underwriting Agreement.
In case any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to BNY Capital
Markets, Inc. and X.X. Xxxxxx Securities Inc. as representatives
of the Underwriters. Any such termination shall be without
liability of any party to any other party, except as otherwise
provided in paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each
Underwriter and each person who controls each Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which each
Underwriter or any or all of them may become subject under the
Securities Act or any other statute or common law and shall
reimburse each Underwriter and any such controlling person for
any legal or other expenses (including to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented (or, in the case of any
action arising out of the issuance and sale of the Bonds, in any
prior registration statement to which the Basic Prospectus, as a
combined prospectus under Rule 429 of the rules and regulations
of the Commission under the Securities Act, relates), or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424(b)), or in the
Prospectus, as each may be amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with the Commission pursuant to
Rule 424(b)) or the Prospectus or any amendment or supplement to
any thereof or arising out of, or based upon, statements in or
omissions from the Statements of Eligibility; and provided
further, that the indemnity agreement contained in this
subsection shall not inure to the benefit of any Underwriter or
to the benefit of any person controlling such Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Bonds to any
person in respect of the Basic Prospectus or the Prospectus as
supplemented or amended, furnished by such Underwriter to a
person to whom any of the Bonds were sold (excluding in both
cases, however, any document then incorporated or deemed to be
incorporated by reference therein), insofar as such indemnity
relates to any untrue or misleading statement or omission made in
the Basic Prospectus or the Prospectus but eliminated or remedied
prior to the consummation of such sale in the Prospectus, or any
amendment or supplement thereto, furnished on a timely basis by
the Company to the Underwriters pursuant to Section 6(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating to any
securities of the Company other than the Bonds and any document
then incorporated or deemed to be incorporated by reference in
the Prospectus or such amendment or supplement) is furnished by
such Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold harmless
the Company, its directors and officers and each person who
controls the foregoing within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with the Commission pursuant to Rule
424(b)), or in the Prospectus, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
in each case, if, but only if, such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with the Commission pursuant to
Rule 424(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon the
Registration Statement, the Basic Prospectus or the Prospectus
(including amendments or supplements thereto), against any party
in respect of which indemnity may be sought pursuant to any of
the preceding paragraphs, such party (hereinafter called the
indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment)).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under subsections (a),
(b) or (c) in this Section 9 is unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and such
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations
. Any other provision of this Underwriting Agreement to the
contrary notwithstanding, (a) the indemnity and contribution
agreements contained in Section 9 of, and the representations and
warranties and other agreements of the Company contained in, this
Underwriting Agreement shall remain operative and in full force
and effect regardless of (i) any investigation made by or on
behalf of any Underwriter or by or on behalf of the Company or
its directors or officers, or any of the other persons referred
to in Section 9 hereof and (ii) acceptance of and payment for the
Bonds and (b) the indemnity and contribution agreements contained
in Section 9 shall remain operative and in full force and effect
regardless of any termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters
. If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the principal amount of Bonds
that it has agreed to purchase and pay for hereunder, and the
aggregate principal amount of Bonds that such defaulting
Underwriter agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Bonds,
the other Underwriters shall be obligated to purchase the Bonds
that such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Bonds that such Underwriter has agreed to purchase pursuant to
Schedule I hereof be increased pursuant to this Section 11 by an
amount in excess of one-ninth of such principal amount of Bonds
without written consent of such Underwriter. If such Underwriter
shall fail or refuse to purchase Bonds and the aggregate
principal amount of Bonds with respect to which such default
occurs is more than one-tenth of the aggregate principal amount
of the Bonds, the Company shall have the right (a) to require the
non-defaulting Underwriters to purchase and pay for the
respective principal amount of Bonds that they had severally
agreed to purchase hereunder, and, in addition, the principal
amount of Bonds that the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to one-
ninth of the respective principal amount of Bonds that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more other members of the
NASD (or, if not members of the NASD, who are foreign banks,
dealers or institutions not registered under the Exchange Act and
who agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall
give written notice thereof to the Underwriters within 24 hours
(excluding any Saturday, Sunday, or legal holiday) of the time
when the Company learns of the failure or refusal of any
Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as
the Company shall determine. In the event the Company shall be
entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this
Underwriting Agreement. In the absence of such election by the
Company, this Underwriting Agreement will, unless otherwise
agreed by the Company and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 12. Termination
. This Underwriting Agreement shall be subject to
termination by written notice from BNY Capital Markets, Inc. and
X.X. Xxxxxx Securities Inc., as representatives of the
Underwriters, to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended on the New
York Stock Exchange by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the New York Stock Exchange by The New York Stock Exchange,
Inc., the Commission or other governmental authority, (iii) a
general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State
authorities or a material disruption in commercial banking or
securities settlement or clearing services in the United States
shall have occurred, (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the judgment of BNY Capital Markets, Inc. and X.X.
Xxxxxx Securities Inc., as representatives of the Underwriters,
is material and adverse, or (v) any material adverse change in
financial, political or economic conditions in the United States
or elsewhere shall have occurred and (b) in the case of any of
the events specified in clauses (a)(i) through (v), such event
singly or together with any other such event makes it, in the
reasonable judgment of BNY Capital Markets, Inc. and X.X. Xxxxxx
Securities Inc., as representatives of the Underwriters,
impracticable to market the Bonds. This Underwriting Agreement
shall also be subject to termination, upon notice by BNY Capital
Markets, Inc. and X.X. Xxxxxx Securities Inc., as representatives
of the Underwriters, as provided above, if, in the judgment of
BNY Capital Markets, Inc. and X.X. Xxxxxx Securities Inc., as
representatives of the Underwriters, the subject matter of any
amendment or supplement (prepared by the Company) to the
Prospectus (except for information relating solely to the manner
of public offering of the Bonds or to the activity of the
Underwriters or to the terms of any securities of the Company
other than the Bonds) filed or issued after the effectiveness of
this Underwriting Agreement by the Company shall have materially
impaired the marketability of the Bonds. Any termination hereof,
pursuant to this Section 12, shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous
. THE RIGHTS AND DUTIES OF THE PARTIES TO THIS UNDERWRITING
AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
This Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to BNY Capital Markets, Inc.
and X.X. Xxxxxx Securities Inc., as representatives of the
Underwriters, by the Company. This Underwriting Agreement may be
executed in any number of separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one and
the same agreement. This Underwriting Agreement shall inure to
the benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices
. All communications hereunder shall be in writing and, if
to the Underwriters, shall be mailed or delivered to BNY Capital
Markets, Inc. and X.X. Xxxxxx Securities Inc., as representatives
of the Underwriters, at the addresses set forth at the beginning
of this Underwriting Agreement to the attention of Xxxxxx
Xxxxxxx, Vice President, in the case of BNY Capital Markets,
Inc., and Investment Grade Syndicate Desk, 8th Floor, (212) 834-
4533 (phone), (000) 000-0000 (fax) in the case of X.X. Xxxxxx
Securities Inc. or, if to the Company, shall be mailed or
delivered to it at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx
00000, Attention: Treasurer, or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000, Attention: Treasurer.
Very truly yours,
Entergy Mississippi, Inc.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Assistant Treasurer
Accepted as of the date first above written.
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Scotia Capital (USA) Inc.
The Xxxxxxxx Capital Group, L.P.
By: BNY Capital Markets, Inc.
By:/s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: X.X. Xxxxxx Securities Inc.
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
Entergy Mississippi, Inc.
$100,000,000 First Mortgage Bonds,
5.15% Series due February 1, 2013
Name of Underwriters Principal
Amount of Bonds
BNY Capital Markets, Inc. $43,000,000
X.X. Xxxxxx Securities Inc. 43,000,000
Scotia Capital (USA) Inc. 7,000,000
The Xxxxxxxx Capital Group, L.P. 7,000,000
------------
TOTAL $100,000,000
============
EXHIBIT A
[Letterhead of Xxxx Xxxxxx Child & Xxxxxxx, Professional
Association]
January ___, 2003
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Scotia Capital (USA) Inc.
The Xxxxxxxx Capital Group, L.P.
x/x XXX Xxxxxxx Xxxxxxx, Xxx.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Xxxxxx Xxxx & Priest LLP, of New York, New
York, and Friday, Xxxxxxxx & Xxxxx, LLP of Little Rock, Arkansas,
have acted as counsel for Entergy Mississippi, Inc., a
Mississippi corporation (the "Company"), in connection with the
issuance and sale to you, pursuant to the Underwriting Agreement
effective January 27, 2003 (the "Underwriting Agreement"),
between the Company and you, of $100,000,000 aggregate principal
amount of its First Mortgage Bonds, 5.15% Series due February 1,
2013 (the "Bonds"), issued pursuant to the Company's Mortgage and
Deed of Trust, dated as of February 1, 1988, with The Bank of New
York (successor to Bank of Montreal Trust Company), as Corporate
Trustee (the "Corporate Trustee"), and Xxxxxxx X. Xxxxxxxxx
(successor to Z. Xxxxxx Xxxxxxxxx), as Co-Trustee, as heretofore
amended and supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Nineteenth Supplemental Indenture, dated as
of January 1, 2003 (the "Supplemental Indenture") (the Mortgage
and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"). This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with: (a)
the Company's Amended and Restated Articles of Incorporation and
By-laws, (b) the Underwriting Agreement; (c) the Mortgage; (d)
the Registration Statement and the Prospectus; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by the Company and the execution
and delivery by the Company of the Supplemental Indenture and the
Underwriting Agreement; and (f) the proceedings before and the
orders entered by the Commission under the Holding Company Act
relating to the issuance and sale of the Bonds by the Company.
We have also examined or caused to be examined such other
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. In
our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the legal capacity of natural persons, the conformity
with the originals of all documents submitted to us as copies and
the authenticity of the originals of such latter documents. We
have not examined the Bonds, except specimens thereof, and we
have relied upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof.
In making our examination of documents and instruments
executed or to be executed by persons other than the Company, we
have assumed that each such other person had the requisite power
and authority to enter into and perform fully its obligations
thereunder, the due authorization by each such other person for
the execution, delivery and performance thereof by such person,
and the due execution and delivery by or on behalf of such person
of each such document and instrument. In the case of any such
other person that is not a natural person, we have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such
other person was created, and is duly qualified and in good
standing in each other jurisdiction where the failure to be so
qualified could reasonably be expected to have a material effect
upon the ability of such other person to execute, deliver and/or
perform such other person's obligations under any such document
or instrument. We have further assumed that each of the
documents, instruments, agreements, records and certificates
reviewed by us for purposes of rendering the opinions expressed
below has not been amended by oral agreement, conduct or course
of dealing of the parties thereto, although we have no knowledge
of any facts or circumstances that could give rise to such
amendment.
As to questions of fact material to the opinions expressed
herein, we have relied upon certificates and representations of
officers of the Company (including but not limited to those
contained in the Underwriting Agreement and the Mortgage and
certificates delivered at the closing of the sale of the Bonds)
and appropriate public officials without independent verification
of such matters except as otherwise described herein.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly
existing as a corporation in good standing under the laws of
the State of Mississippi, has due corporate power and
authority to conduct the business that it is described as
conducting in the Prospectus and to own and operate the
properties owned and operated by it in such business and is
duly qualified to conduct such business as a foreign
corporation in the State of Arkansas.
(2) The Company has good and sufficient title to
the properties described as owned by it in and as subject to
the lien of the Mortgage (except properties released under
the terms of the Mortgage), subject only to Excepted
Encumbrances (as defined in the Mortgage) and to minor
defects and encumbrances customarily found in properties of
like size and character that do not materially impair the
use of such properties by the Company. All permanent
physical properties and franchises (other than those
expressly excepted in the Mortgage) acquired by the Company
after the date of the Supplemental Indenture will, upon such
acquisition, become subject to the lien of the Mortgage,
subject, however, to such Excepted Encumbrances and to
liens, if any, existing or placed thereon at the time of the
acquisition thereof by the Company and except as may be
limited by bankruptcy law.
(3) The Mortgage constitutes a valid, direct and
first mortgage lien on all of the Mortgaged and Pledged
Property (as defined in the Mortgage), subject only to minor
defects of the character aforesaid and Excepted
Encumbrances. The description of the Mortgaged and Pledged
Property set forth in the Mortgage is adequate to constitute
the Mortgage as a lien on the Mortgaged and Pledged
Property. The filing for recording of the Mortgage in the
offices of the Chancery Clerks of each County in Mississippi
in which the Company holds real property, and the recording
of the Mortgage in the office of the Circuit Clerk of
Independence County, Arkansas, which filings or recordings
will be duly effected, and the filing of Uniform Commercial
Code financing statements covering the personal property and
fixtures described in the Mortgage as subject to the lien
thereof in the offices of the Secretary of State of the
State of Mississippi and the Secretary of State of the State
of Arkansas, which filings will be duly effected, are the
only recordings, filings, rerecordings and refilings
required by law in order to protect and maintain the lien of
the Mortgage on any of the property described therein and
subject thereto.
(4) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of
the Company, has been duly and validly executed and
delivered by the Company, is a legal, valid and binding
instrument of the Company enforceable against the Company in
accordance with its terms, except (i) as may be limited by
the laws of the States of Mississippi, Arkansas and Wyoming,
where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for
therein, which laws do not, in our opinion, make inadequate
remedies necessary for the realization of the benefits of
such security, and (ii) as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and by general
equitable principles (whether considered in a proceeding in
equity or at law) and is qualified under the Trust Indenture
Act, and no proceedings to suspend such qualification have
been instituted or, to our knowledge, threatened by the
Commission.
(5) The Bonds have been duly and validly
authorized by all necessary corporate action on the part of
the Company and are legal, valid and binding obligations of
the Company enforceable against the Company in accordance
with their terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and by general
equitable principles (whether considered in a proceeding in
equity or at law) and are entitled to the benefit of the
security afforded by the Mortgage.
(6) The statements made in the Prospectus under
the captions "Description of the First Mortgage Bonds" and
"Description of the Bonds," insofar as they purport to
constitute summaries of the documents referred to therein,
or of the benefits purported to be afforded by such
documents (including, without limitation, the lien of the
Mortgage), constitute accurate summaries of the terms of
such documents and of such benefits in all material
respects.
(7) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(8) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which we do not express an
opinion, the Registration Statement, at the Effective Date,
and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424(b), complied as to form in
all material respects with the applicable requirements of
the Securities Act and (except with respect to the
Statements of Eligibility upon which we do not express an
opinion) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed by the
Company with the Commission pursuant to the Exchange Act,
and incorporated or deemed to be incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, such
documents or portions thereof, on the date filed with the
Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
Registration Statement has become, and on the date hereof
is, effective under the Securities Act; and, to the best of
our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened under
Section 8(d) of the Securities Act.
(9) Appropriate orders have been entered by the
Commission under the Holding Company Act authorizing the
issuance and sale of the Bonds by the Company; to the best
of our knowledge, such orders are in full force and effect;
no further approval, authorization, consent or other order
of any governmental body (other than under the Securities
Act or the Trust Indenture Act, which have been duly
obtained, or in connection or compliance with the provisions
of the securities or blue sky laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Underwriting Agreement;
and no further approval, authorization, consent or other
order of any governmental body is legally required to permit
the performance by the Company of its obligations with
respect to the Bonds or under the Mortgage and the
Underwriting Agreement.
(10) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Mortgage (a)
will not violate any provision of the Company's Amended and
Restated Articles of Incorporation or By-laws, (b) will not
violate any provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any law or regulation applicable to
the Company or, to the best of our knowledge (having made
due inquiry with respect thereto), any provision of any
order, writ, judgment or decree of any governmental
instrumentality applicable to the Company (except that
various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the
case may be, in connection or compliance with the provisions
of the securities or blue sky laws of any jurisdiction).
In passing upon the forms of the Registration Statement and
the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (6) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
officers, employees, and representatives of the Company and
Entergy Services, Inc., with other counsel for the Company, and
with the independent certified public accountants of the Company
who audited certain of the financial statements included or
incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
the above-mentioned discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time it was filed with the Commission pursuant to Rule 424(b)
and at the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to (i)
the financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus, (ii) the Statements of Eligibility,
or (iii) the information contained in the Prospectus under the
caption "Book-Entry Only Securities."
We have examined the portions of the information contained
in the Registration Statement that are stated therein to have
been made on our authority, and we believe such information to be
correct. We have examined the opinions of even date herewith
rendered to you by Xxxxxx Xxxx & Priest LLP and Pillsbury
Winthrop LLP and concur in the conclusions expressed therein
insofar as they involve questions of Mississippi and Wyoming law.
We are members of the Mississippi Bar and, for purposes of
this opinion, do not hold ourselves out as an expert on the laws
of any jurisdiction other than the State of Mississippi and the
United States of America. As to all matters of Arkansas, Wyoming
and New York law, we have relied, with your approval, in the case
of Arkansas law, upon the opinion of even date herewith addressed
to you of Friday, Xxxxxxxx & Xxxxx, LLP, in the case of Wyoming
law, upon correspondence and consultation with attorneys licensed
in Wyoming and, in the case of New York law, upon the opinion of
even date herewith addressed to you of Xxxxxx Xxxx & Priest LLP.
The opinion set forth above is solely for your benefit in
connection with the Underwriting Agreement and the transactions
contemplated thereunder, and it may not be relied upon in any
manner by any other person or for any other purpose, without our
prior written consent, except that Xxxxxx Xxxx & Priest LLP and
Pillsbury Winthrop LLP may rely on this opinion as to all matters
of Mississippi and Wyoming law in rendering their opinions
required to be delivered under the Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Friday, Xxxxxxxx & Xxxxx, LLP]
January ___, 2003
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Scotia Capital (USA) Inc.
The Xxxxxxxx Capital Group, L.P.
x/x XXX Xxxxxxx Xxxxxxx, Xxx.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Xxxxxx Xxxx & Priest LLP, of New York, New
York, and Xxxx Xxxxxx Child & Xxxxxxx, Professional Association,
of Jackson, Mississippi, have acted as counsel for Entergy
Mississippi, Inc., a Mississippi corporation (the "Company"), in
connection with the issuance and sale, pursuant to the
Underwriting Agreement effective January 27, 2003 between the
Company and you (the "Underwriting Agreement"), by the Company of
$100,000,000 aggregate principal amount of its First Mortgage
Bonds, 5.15% Series due February 1, 2013 (the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
February 1, 1988, with The Bank of New York (successor to Bank of
Montreal Trust Company), as Corporate Trustee, and Xxxxxxx X.
Xxxxxxxxx (successor to Z. Xxxxxx Xxxxxxxxx), as Co-Trustee, as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, and as it will be further
amended and supplemented by the Nineteenth Supplemental
Indenture, dated as of January 1, 2003 (the "Supplemental
Indenture") (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage").
We have examined such documents, records and certificates and
have reviewed such questions of law as we have deemed necessary
and appropriate for the purpose of this opinion. This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
In order to render this opinion, we have assumed that the
Company does not own any real or personal property or other
facilities in the State of Arkansas, except for an undivided
twenty-five percent (25%) ownership interest in the Independence
Steam Electric Station at Newark, Arkansas, and that the Company
does not maintain any service territory or serve any retail
customers in the State of Arkansas. We have also assumed that
the issuance and sale of the Bonds have had significant contacts
with the State of New York.
Based upon the foregoing and subject to the foregoing and to
the further exceptions and qualifications set forth below, we are
of the opinion that:
(1) The Company is duly qualified to conduct the business
that it is described as conducting in the Prospectus as a foreign
corporation and is in good standing under the laws of the State
of Arkansas and holds adequate and subsisting franchises,
certificates of public convenience and necessity, licenses and
permits to permit it to conduct its business as presently
conducted in Arkansas.
(2) The courts of Arkansas will enforce any provision in
the Mortgage, the Bonds and the Underwriting Agreement,
stipulating that the laws of the State of New York shall govern
the Mortgage, the Bonds and the Underwriting Agreement, except to
the extent that the validity or perfection of the lien of the
Mortgage, or remedies thereunder, are governed by the laws of a
jurisdiction other than the State of New York, except, with
respect to enforcement of the Mortgage, as the same may be
limited by the laws of the State of Arkansas affecting the
remedies for the enforcement of the security provided for
therein, which laws do not, in our opinion, make inadequate
remedies necessary for the realization of the benefits of such
security.
(3) There are no authorizations, approvals, consents or
orders of any governmental authority in the State of Arkansas
(other than in connection or compliance with the provisions of
the securities or "blue sky" laws as to which no opinion is
expressed herein) legally required for the execution, delivery
and performance by the Company of the Underwriting Agreement or
to permit the issuance and sale by the Company of the Bonds
pursuant to the Underwriting Agreement.
(4) Substantially all physical properties located in the
State of Arkansas (other than those expressly excepted) which
have been or hereafter may be acquired by the Company have been
or, upon such acquisition, will become subject to the lien of the
Mortgage, subject, however, to Excepted Encumbrances (as defined
in the Mortgage) and to liens, defects, and encumbrances, if any,
existing or placed thereon at the time of the acquisition thereof
by the Company and except as may be limited by bankruptcy law.
(5) The Company has good and sufficient legal right, title
and interest in and to the Mortgaged and Pledged Property (as
defined in the Mortgage) located in the State of Arkansas free
and clear of any lien or encumbrance except for the lien of the
Mortgage and for Excepted Encumbrances (as defined in the
Mortgage), and except for minor defects and encumbrances
customarily found in physical properties of like size and
character which do not, in our opinion, materially impair the use
of such properties affected thereby in the conduct of the
business of the Company.
(6) The description of the Mortgaged and Pledged Property
(as defined in the Mortgage) which is located in the State of
Arkansas, as set forth in the Mortgage, is adequate to constitute
a lien on such Mortgaged and Pledged Property. The recording of
the Mortgage among the land records in the office of the Circuit
Clerk of Independence County, Arkansas, which recording will be
duly effected, and the filing of Uniform Commercial Code
financing statements covering the personal property and fixtures
described in the Mortgage subject to the lien thereof in the
office of the Secretary of State of the State of Arkansas, which
filing will be duly effected, are the only recordings, filings,
re-recordings or refilings required by Arkansas law in order to
protect and maintain the lien of the Mortgage on any Arkansas
property described therein and subject thereto.
In connection with rendering the opinion set forth in
paragraph (5) above, we have, with your consent, performed the
following procedures and relied upon the following: (a) limited
title searches performed by Independence County Abstract Company,
Inc., covering the period from September 10, 1981 to [ ]; (b) a
review by Independence County Abstract Company, Inc. of the
Grantor/Grantee indices of volumes in the real estate records of
Independence County, Arkansas, in which transactions that would
affect the Company's title to its property located in such County
would be recorded; (c) a review of the Plaintiff/Defendant
indices of official records of the Circuit Court and Chancery
Court of Independence County, Arkansas, and of the United States
District Court for the Eastern District of the State of Arkansas,
in each case for civil suits currently pending therein; and (d) a
certificate of the Secretary of State of the State of Arkansas
reflecting the results of a search of the records maintained by
such official pursuant to Act 375 of the Acts of Arkansas of 1965
(the Arkansas Transmitting Utility Act).
We are members of the Arkansas Bar, and we express no
opinion on the laws of any jurisdiction other than the State of
Arkansas.
The opinion set forth above is solely for your benefit in
connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon in any manner
by any other person or for any other purpose, without our prior
written consent, except that Xxxx Xxxxxx Child & Xxxxxxx,
Professional Association, Pillsbury Winthrop LLP and Xxxxxx Xxxx
& Priest LLP may rely on this opinion as to all matters of
Arkansas law in rendering their opinions required to be delivered
under the Underwriting Agreement.
Sincerely,
FRIDAY, XXXXXXXX & XXXXX, LLP
EXHIBIT C
[Letterhead of Xxxxxx Xxxx & Priest LLP]
January ___, 2003
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Scotia Capital (USA) Inc.
The Xxxxxxxx Capital Group, L.P.
x/x XXX Xxxxxxx Xxxxxxx, Xxx.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Friday, Xxxxxxxx & Xxxxx, LLP and Xxxx
Xxxxxx Child & Xxxxxxx, Professional Association, have acted as
counsel for Entergy Mississippi, Inc., a Mississippi corporation
(the "Company"), in connection with the issuance and sale to you
pursuant to the Underwriting Agreement, effective January 27,
2003 (the "Underwriting Agreement"), between the Company and you,
of $100,000,000 aggregate principal amount of its First Mortgage
Bonds, 5.15% Series due February 1, 2013 (the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
February 1, 1988, with The Bank of New York (successor to Bank of
Montreal Trust Company), as Corporate Trustee (the "Corporate
Trustee"), and Xxxxxxx X. Xxxxxxxxx (successor to Z. Xxxxxx
Xxxxxxxxx), as Co-Trustee, as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
and as it will be further amended and supplemented by the
Nineteenth Supplemental Indenture, dated as of January 1, 2003
(the "Supplemental Indenture") (the Mortgage and Deed of Trust as
so amended and supplemented being hereinafter referred to as the
"Mortgage"). This opinion is being rendered to you at the
request of the Company. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with:
(a) the Company's Restated Articles of Incorporation and By-Laws,
each as amended; (b) the Underwriting Agreement; (c) the
Mortgage; (d) the Registration Statement and the Prospectus; (e)
the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and
the execution and delivery by the Company of the Supplemental
Indenture and the Underwriting Agreement; and (f) the proceedings
before and the orders entered by the Commission under the Holding
Company Act relating to the issuance and sale of the Bonds by the
Company. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies and
the authenticity of the originals of such latter documents. We
have not examined the Bonds, except specimens thereof, and we
have relied upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with
its terms, except (i) as may be limited by the laws of the
States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
and (ii) as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the
Commission.
(2) The Bonds have been duly and validly authorized by
all necessary corporate action on the part of the Company
and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
are entitled to the benefit of the security afforded by the
Mortgage.
(3) The statements made in the Prospectus under the
captions "Description of the First Mortgage Bonds" and
"Description of the Bonds," insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents
in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not express an opinion,
the Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Statements of
Eligibility, upon which we do not express an opinion) the
Trust Indenture Act, and the applicable instructions, rules
and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to
comply therewith; and, with respect to the documents or
portions thereof filed with the Commission by the Company
pursuant to the Exchange Act, and incorporated or deemed to
be incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3, such documents or portions thereof, on
the date filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the
date hereof is, effective under the Securities Act; and, to
the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
(6) Appropriate orders have been entered by the
Commission under the Holding Company Act authorizing the
issuance and sale of the Bonds by the Company; to the best
of our knowledge, said orders are in full force and effect;
no further approval, authorization, consent or other order
of any governmental body (other than under the Securities
Act or the Trust Indenture Act, which have been duly
obtained, or in connection or compliance with the provisions
of the securities or blue sky laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Underwriting Agreement;
and no further approval, authorization, consent or other
order of any governmental body is legally required to permit
the performance by the Company of its obligations with
respect to the Bonds or under the Mortgage and the
Underwriting Agreement.
In passing upon the forms of the Registration Statement and
the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain
officers, employees and representatives of the Company and
Entergy Services, Inc., with other counsel for the Company, and
with the independent certified public accountants of the Company
who audited certain of the financial statements included or
incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to (i) the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, (ii)
the Statements of Eligibility or (iii) the information contained
in the Prospectus under the caption "Book-Entry Only Securities".
We are members of the New York Bar, and this opinion is
limited to the laws of the States of New York, Mississippi,
Wyoming and Arkansas and the United States of America. As to all
matters of Mississippi and Wyoming law, we have relied upon the
opinion of even date herewith addressed to you by Xxxx Xxxxxx
Child & Xxxxxxx, Professional Association, and as to all matters
of Arkansas law, we have relied upon the opinion of even date
herewith addressed to you and Xxxx Xxxxxx Child & Xxxxxxx,
Professional Association, by Friday, Xxxxxxxx & Xxxxx, LLP,
special counsel to the Company. We have not examined into and
are not expressing an opinion upon matters relating to
incorporation of the Company, titles to property, franchises or
the lien of the Mortgage.
The opinion set forth above is solely for your benefit in
connection with the Underwriting Agreement and the transactions
contemplated thereunder, and it may not be relied upon in any
manner by any other person or for any other purpose, without our
prior written consent, except that Xxxx Xxxxxx Child & Xxxxxxx,
Professional Association, may rely on this opinion as to all
matters of New York law in rendering their opinion required to be
delivered under the Underwriting Agreement.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
EXHIBIT D
[Letterhead of Pillsbury Winthrop LLP]
January ___, 2003
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Scotia Capital (USA) Inc.
The Xxxxxxxx Capital Group, L.P.
x/x XXX Xxxxxxx Xxxxxxx, Xxx.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters of
$100,000,000 aggregate principal amount of First Mortgage Bonds,
5.15% Series due February 1, 2013 (the "Bonds"), issued by
Entergy Mississippi, Inc., a Mississippi corporation (the
"Company"), under the Company's Mortgage and Deed of Trust, dated
as of February 1, 1988, with The Bank of New York (successor to
Bank of Montreal Trust Company), as Corporate Trustee (the
"Corporate Trustee"), and Xxxxxxx X. Xxxxxxxxx (successor to Z.
Xxxxxx Xxxxxxxxx), as Co-Trustee, as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Nineteenth Supplemental Indenture, dated as
of January 1, 2003 (the Mortgage and Deed of Trust as so amended
and supplemented being hereinafter referred to as the
"Mortgage"), pursuant to the Underwriting Agreement between you
and the Company effective January 27, 2003 (the "Underwriting
Agreement"). Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
We are members of the New York Bar and, for purposes of this
opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon
opinions of even date herewith addressed to you by Friday,
Xxxxxxxx & Xxxxx, LLP, counsel for the Company, as to all matters
of Arkansas law related to this opinion and by Xxxx Xxxxxx Child
& Xxxxxxx, Professional Association, as to all matters of
Mississippi and Wyoming law related to this opinion. We have
also reviewed said opinions, and believe that they are
satisfactory. We have also reviewed the opinion of Xxxxxx Xxxx &
Priest LLP required by Section 7(d) of the Underwriting
Agreement, and we believe said opinion to be satisfactory.
We have reviewed, and have relied as to matters of fact
material to this opinion upon, the documents delivered to you at
the closing of the transactions contemplated by the Underwriting
Agreement, and we have reviewed such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to render this opinion. As to
such matters of fact material to this opinion, we have relied
upon representations and certifications of the Company in such
documents and in the Underwriting Agreement, and upon statements
in the Registration Statement. In such review, we have assumed
the genuineness of all signatures, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals and the
correctness of all statements of fact contained in all such
original documents. We have not examined the Bonds, except
specimens thereof, and we have relied upon a certificate of the
Corporate Trustee as to the authentication and delivery thereof
and as to the authorization, execution and delivery of the
Supplemental Indenture. We have not examined, and are expressing
no opinion or belief as to matters relating to, incorporation of
the Company, titles to property, franchises, the lien purported
to be created by the Mortgage or the recordation or perfection of
such lien.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, and is a legal, valid and binding instrument of
the Company enforceable against the Company in accordance
with its terms, except as may be limited by (i) the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security purported to be provided
for therein, (ii) bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (whether considered in a
proceeding in equity or at law), and (iii) an implied
covenant of reasonableness, good faith and fair dealing;
and, to the best of our knowledge, the Mortgage is qualified
under the Trust Indenture Act and no proceedings to suspend
such qualification have been instituted or threatened by the
Commission.
(2) The Bonds have been duly and validly authorized by
all necessary corporate action on the part of the Company
and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and general equitable principles (whether considered
in a proceeding in equity or at law) and by an implied
covenant of reasonableness, good faith and fair dealing and
are entitled to the benefit of the security purported to be
afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions "Description of the First Mortgage Bonds" and
"Description of the Bonds," insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents
in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Appropriate orders have been entered by the
Commission under the Holding Company Act, authorizing the
issuance and sale of the Bonds by the Company, and to the
best of our knowledge, such orders are in full force and
effect; and no further approval, authorization, consent or
other order of any governmental body (other than under the
Securities Act or the Trust Indenture Act which, to the best
of our knowledge, has been duly obtained, or in connection
or compliance with the provisions of the securities or blue
sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Bonds by the Company pursuant
to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or
incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Statements of
Eligibility, upon which we do not pass) the Trust Indenture
Act, and the applicable instructions, rules and regulations
of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; with respect to the documents or portions thereof
filed with the Commission by the Company pursuant to the
Exchange Act, and incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-
3, such documents or portions thereof, on the date filed
with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act,
and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; and,
to the best of our knowledge, the Registration Statement has
become, and on the date hereof is, effective under the
Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement and
the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of the statements made by
the Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain
officers, employees and representatives of the Company and
Entergy Services, Inc., with counsel for the Company, with your
representatives and with the independent certified public
accountants of the Company who audited certain of the financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus. Our review of the
Registration Statement and the Prospectus and the above-mentioned
discussions did not disclose to us any information that gives us
reason to believe that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time filed with the Commission
pursuant to Rule 424(b) and at the date hereof, contained or
contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to (i) the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus or (ii) the Statements
of Eligibility.
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that Section 9.08
of the Mortgage provides that the Company will promptly record
and file the Supplemental Indenture in such manner and in such
places, as may be required by law in order to fully preserve and
protect the security of the bondholders and all rights of the
Corporate Trustee.
This opinion is solely for your benefit in connection with
the Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose, without our prior written
consent.
Very truly yours,
PILLSBURY WINTHROP LLP
EXHIBIT E
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
Caption Page Item
Annual Report on Form 10-
K for the year ended
December 31, 2001
"SELECTED FINANCIAL DATA 140 The amounts of electric
- FIVE-YEAR COMPARISON" operating revenues (by
source) for the twelve month
periods ended December 31,
2001, 2000 and 1999
Quarterly Report on Form
10-Q for the quarterly
period ended
March 31, 2002
"SELECTED OPERATING 52 The amounts of electric
RESULTS" operating revenues (by
source) for the three month
periods ended March 31, 2002
and 2001
Quarterly Report on Form
10-Q for the quarterly
period ended
June 30, 2002
"SELECTED OPERATING 60 The amounts of electric
RESULTS" operating revenues (by
source) for the three and
six month periods ended June
30, 2002 and 2001
Quarterly Report on Form
10-Q for the quarterly
period ended September
30, 2002
"SELECTED OPERATING 70 The amounts of electric
RESULTS" operating revenues (by
source) for the three and
nine month periods ended
September 30, 2002 and 2001
