Exhibit B-9(b)
Entergy Gulf States, Inc.
$200,000,000
First Mortgage Bonds
5.20% Series due December 3, 2007
PURCHASE AGREEMENT
November 1, 2002
Xxxxxx Brothers Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
XX Xxxxx Securities Corporation
The Royal Bank of Scotland plc
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Entergy Gulf States, Inc., a Texas
corporation (the "Company"), proposes to issue and sell to the
several purchasers named in Schedule I hereto (the "Initial
Purchasers," which term, when the context permits, shall also
include any purchasers substituted as hereinafter in Section 11
provided), an aggregate of $200,000,000 principal amount of the
Company's First Mortgage Bonds, 5.20% Series due December 3, 2007
(the "Bonds").
The Bonds will be offered and sold without being
registered under the Securities Act of 1933, as amended (the
"Securities Act"), only to Qualified Institutional Buyers (as
defined in Rule 144A under the Securities Act ("Rule 144A"))
("QIBs") in compliance with Rule 144A. In connection with the
offering and resale of the Bonds, the Company has prepared an
offering memorandum dated the date hereof (including the
documents incorporated therein by reference as of the date
hereof, the "Offering Memorandum") setting forth or incorporating
by reference information regarding the Company and the
transactions described herein. The Company confirms that it has
authorized the use of the Offering Memorandum in connection with
the offering and resale of the Bonds by the Initial Purchasers in
accordance herewith. All references in this Purchase Agreement
to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document by the
Company with the Securities and Exchange Commission (the
"Commission") pursuant to Sections 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date hereof and prior to the termination of the
offering of the Bonds.
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 Initial Purchasers, and each
Initial Purchaser shall purchase from the Company, at the time
and place herein specified, severally and not jointly, the Bonds
at 99.351% of the principal amount thereof in the principal
amount set forth opposite the name of such Initial Purchaser in
Schedule I attached hereto. The Company is advised by the
Initial Purchasers that the Bonds will be offered on the terms
set forth in the Offering Memorandum as soon as practicable after
this Purchase Agreement is entered into as in the judgment of the
Initial Purchasers is advisable.
SECTION 2. Description of Bonds. The Bonds shall be
issued under and pursuant to the Company's Indenture of Mortgage,
dated September 1, 1926, with JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee (the "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 Sixty-first Supplemental
Indenture, dated as of November 1, 2002 (the "Supplemental
Indenture"). Said Indenture of Mortgage 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 Offering Memorandum 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 Initial
Purchasers.
Holders of the Bonds will be entitled to the benefits
of a Registration Rights Agreement (the "Registration Rights
Agreement") to be dated the Closing Date between the Company and
the Initial Purchasers, pursuant to which the Company will agree
pursuant to the terms thereof to file with the Commission (i) a
registration statement under the Securities Act registering an
issue of first mortgage bonds of the Company which are identical
in all material respects to the Bonds (except that such exchange
first mortgage bonds will not contain terms with respect to
transfer restrictions or additional interest) and (ii) under
certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Initial Purchasers, and covenants and agrees with the several
Initial Purchasers, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Texas and has the necessary corporate power and
authority to conduct the business that it is described in
the Offering Memorandum 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 Louisiana.
(b) The Offering Memorandum has been prepared by the
Company for use by the Initial Purchasers in connection with
the offering and resale of the Bonds. No order or decree
preventing the use of the Offering Memorandum, or any order
asserting that the transactions contemplated by this
Purchase Agreement are subject to the registration
requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or,
to the knowledge of the Company, is contemplated.
(c) After the time of effectiveness of this Purchase
Agreement and during the time specified in Section 5(b)
hereof, the Company will not amend or supplement the
Offering Memorandum without prior notice to the Initial
Purchasers and to Pillsbury Winthrop LLP ("Counsel for the
Initial Purchasers"), or effect any such amendment or
supplement to which Counsel for the Initial Purchasers shall
reasonably object on legal grounds in writing.
(d) The Offering Memorandum, as of the date hereof,
does not, and at the Closing Date, 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,
except that this representation and warranty shall not apply
to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by any Initial Purchaser or on its behalf specifically for
use in connection with the preparation of the Offering
Memorandum, as it may be then amended or supplemented. The
documents incorporated or deemed to be incorporated by
reference into the Offering Memorandum, on the date filed
with the Commission pursuant to the Exchange Act, fully
complied 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, and
no such documents incorporated or deemed to be incorporated
by reference into the Offering Memorandum, on such dates,
contained or will contain, respectively, 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.
(e) The issuance and sale of the Bonds and the
fulfillment of the terms of this Purchase Agreement and the
Registration Rights 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
Offering Memorandum, 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 that could have a material adverse
effect on the Company.
(g) The Company maintains 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. Such internal controls and processes have
been designed to ensure that material information relating
to the Company is made known to the officers of the Company
certifying reports to the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act.
(h) Neither the Company nor any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")) has directly, or through any agent
(provided that no representation is made as to the Initial
Purchasers or any person acting on behalf of the Initial
Purchasers) (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of any security (as
defined in the Securities Act) that is or could be
integrated with the offering and sale of the Bonds in a
manner that would require the registration of the Bonds
under the Securities Act, or (ii) engaged in any form of
general solicitation or general advertising (within the
meaning of Rule 502(c) of Regulation D) in connection with
the offering of the Bonds, or acted in any manner involving
a public offering of the Bonds within the meaning of Section
4(2) of the Securities Act.
(i) The Bonds are eligible for resale pursuant to Rule
144A, and at the Closing Date, such Bonds will not be of the
same class (within the meaning of Rule 144A(d)(3) under the
Securities Act) as securities listed on a national
securities exchange registered under Section 6 of the
Exchange Act or quoted in a United States automated inter-
dealer quotation system.
(j) Assuming the accuracy of the representations of
the Initial Purchasers contained herein, and compliance by
the Initial Purchasers with their agreements hereunder, the
offer, sale and delivery of the Bonds to the Initial
Purchasers and the initial resales of the Bonds by the
Initial Purchasers, each in the manner contemplated by this
Purchase Agreement, do not require registration of the Bonds
under the Securities Act or qualification of the Mortgage
under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
(k) Except as permitted by the Securities Act, the
Company has not distributed and, prior to the later to occur
of the Closing Date and completion of the distribution of
the Bonds, will not distribute any offering material in
connection with the offering and sale of the Bonds other
than the Offering Memorandum.
SECTION 4. Time and Place of Closing; Delivery of the
Bonds and Payment Therefor; Resale by Initial Purchasers. (a)
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, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at 10:00 A.M., New York time, on November 7, 2002
or at such other time on the same or such other day as shall be
agreed upon by the Company and Xxxxxx Brothers Inc., as
representative of the Initial Purchasers. The hour and date of
such delivery and payment are herein called the "Closing Date."
The Bonds shall be delivered to Xxxxxx Brothers Inc.,
as representative of the Initial Purchasers, for the account of
the Initial Purchasers, in book-entry only form through the
facilities of DTC 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
DTC. The Company agrees to make the Bonds available to Xxxxxx
Brothers Inc. 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 Xxxxxx Brothers Inc. and the
Company, or at such other time and/or date as may be agreed upon
between Xxxxxx Brothers Inc. and the Company.
(b) With respect to the initial resale of the Bonds,
each Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Company that:
(i) it is a QIB and is purchasing the Bonds pursuant
to Section 4(2) of the Securities Act;
(ii) it has not offered, sold or delivered, and will
not offer, sell or deliver, any Bond in the United
States or to, or for the account or benefit of U.S.
persons, except to persons whom the Initial Purchasers
reasonably believe to be QIBs in compliance with Rule
144A or, if any such person is buying for one or more
institutional accounts for which such person is acting
as fiduciary or agent, only when it reasonably believes
that each such account is a QIB to whom notice has been
given that such sale or delivery is being made in
reliance on Rule 144A and that has agreed to the
transfer restrictions relating to the Bonds contained
in the Offering Memorandum;
(iii) neither it nor any of its affiliates nor any
person acting on its or their behalf has made or will
make offers or sales of the Bonds by means of any form
of general solicitation or general advertising (within
the meaning of Rule 502(c) of Regulation D) or in any
manner involving a public offering (within the meaning
of Section 4(2) of the Securities Act); and
(iv) it will comply with all applicable laws and
regulations in each jurisdiction in which it purchases,
offers, sells or delivers the Bonds or distributes or
cause to be distributed the Offering Memorandum.
The Initial Purchasers acknowledge that the Company
and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 6 hereof, counsel to the Company
and Counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations and the Initial
Purchasers hereby consent to such reliance.
SECTION 5. Covenants of the Company. The Company
covenants and agrees with each Initial Purchaser that:
(a) The Company will prepare the Offering Memorandum
in a form approved by the Initial Purchasers and will
deliver to the Initial Purchasers as many copies of the
Offering Memorandum (and any amendments or supplements
thereto) as the Initial Purchasers may reasonably request.
(b) At any time prior to the completion of the initial
resales of the Bonds by the Initial Purchasers to
purchasers, if any event relating to or affecting the
Company, or of which the Company shall be advised by the
Initial Purchasers in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Offering Memorandum in order to make the
Offering Memorandum 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 Offering
Memorandum and furnish to the Initial Purchasers a
reasonable number of copies of a supplement or supplements
or an amendment or amendments to the Offering Memorandum, so
that, as supplemented or amended, the Offering Memorandum
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 Offering Memorandum is delivered to a purchaser, not
misleading. Unless such event relates solely to the
activities of the Initial Purchasers (in which case the
Initial Purchasers shall assume the expense of preparing any
such supplement or amendment), the expenses of complying
with this Section 5(b) shall be borne by the Company until
the expiration of nine months from the time of effectiveness
of this Purchase Agreement, and such expenses shall be borne
by the Initial Purchasers thereafter.
(c) 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 Initial Purchasers 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.
(d) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation of the Offering
Memorandum and any amendments or supplements 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 Initial Purchasers of
reasonable quantities of copies of the preliminary (and any
supplemental) blue sky survey, and the Offering Memorandum
and any amendment or supplement thereto, except as otherwise
provided in paragraph (b) of this Section 5, (v) the rating
of the Bonds by one or more nationally recognized
statistical rating agencies and (vi) 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 of the expenses of the Initial
Purchasers, except that, if this Purchase Agreement shall be
terminated in accordance with the provisions of Section 6, 7
or 10 hereof, the Company will reimburse the Initial
Purchasers for (A) the reasonable fees and expenses of
Counsel for the Initial Purchasers, whose fees and expenses
the Initial Purchasers 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 Purchase Agreement. The Company shall
not in any event be liable to the Initial Purchasers for
damages on account of loss of anticipated profits.
(e) The Company will not sell any first mortgage bonds
(other than the Bonds) without the consent of Xxxxxx
Brothers, Inc., as representative of the Initial Purchasers,
for a period beginning on the date hereof and ending on the
Closing Date.
(f) 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 Initial Purchasers a supplemental opinion of counsel
for the Company, addressed to the Initial Purchasers,
stating that all such recordings, registrations and filings
have been made.
(g) As long as the Bonds are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, the Company will furnish to
holders of the Bonds and prospective purchasers of the Bonds
designated by such holders, upon the request of such holders
or prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities
Act, unless such information is contained, at the time of
such request, in documents filed by the Company with the
Commission pursuant to Sections 13 or 15(d) of the Exchange
Act.
(h) The Company will not, and will ensure that any of
its affiliates (as defined in Rule 501(b) of Regulation D)
do not, directly or through any agent, solicit any offer to
buy or offer to sell the Bonds by means of any form of
general solicitation or general advertising (as those terms
are used in Rule 502(c) of Regulation D) or in any manner
involving a public offering within the meaning of Section
4(2) of the Securities Act.
(i) The Company will refrain, and cause its affiliates
(as defined in Rule 501(b) of Regulation D) to refrain, from
selling, offering for sale or soliciting offers to buy or
otherwise negotiating in respect of any security (as defined
in the Securities Act) in a transaction that could be
integrated with the sale of the Bonds in a manner that would
require the registration of the Bonds under the Securities
Act.
(j) For a period of two years after the Closing Date,
the Company will not, and will not permit any of its
affiliates (as defined in Rule 501(b) of Regulation D) to
purchase, agree to purchase or otherwise acquire any of the
Bonds which constitute "restricted securities" under Rule
144 under the Securities Act unless, immediately upon such
purchase, the Company or such affiliate submits such Bonds
to the Trustee for cancellation.
(k) The Company will not take, directly or indirectly,
any action designed to, or that could reasonably be expected
to, cause or result in the stabilization or manipulation of
the price of the Bonds.
SECTION 6. Conditions of the Initial Purchasers'
Obligations. The obligations of the several Initial Purchasers
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) 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, an
order 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 Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall
have received from Xxxx X. Xxxx, Esq., Senior Counsel-
Corporate and Securities of Entergy Services, Inc., and
Xxxxxx Xxxx & Priest LLP opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A and B
hereto, respectively (it being understood that Xx. Xxxx may
rely on an opinion of Xxxxxx, Xxxx & Xxxxxx, L.L.P. as to
matters in his opinion relating to Texas law provided that
the Initial Purchasers are addressees to, or are otherwise
entitled to rely on, such opinion), (i) with such changes
therein as may be agreed upon by the Company and the Initial
Purchasers with the approval of Counsel for the Initial
Purchasers, and (ii) if the Offering Memorandum shall be
supplemented after being furnished to the Initial Purchasers
for use in offering the Bonds, with changes therein to
reflect such supplementation.
(c) At the Closing Date, the Initial Purchasers shall
have received from Counsel for the Initial Purchasers an
opinion, dated the Closing Date, substantially in the form
set forth in Exhibit C hereto, with such changes therein as
may be necessary to reflect any supplementation of the
Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall
have received from Deloitte & Touche LLP, the Company's
independent certified public accountants (the
"Accountants"), a letter dated the Closing Date and
addressed to the Initial Purchasers to the effect that (i)
they are independent certified public accountants with
respect to the Company under Rule 101 of the American
Institute of Certified Public Accountants' (the "AICPA")
Code of Professional Conduct and its interpretations and
rulings; (ii) in their opinion, the financial statements and
financial statement schedules audited by them and
incorporated by reference in the Offering Memorandum comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the
applicable published rules and regulations thereunder; (iii)
on the basis of performing the procedures specified by the
AICPA for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, on
the latest unaudited financial statements, if any,
incorporated by reference in the Offering Memorandum, 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 Initial Purchasers), 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) incorporated by reference in the
Offering Memorandum do not comply as to form in all material
respects with the applicable accounting requirements of 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 assets or shareholders'
equity, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Offering Memorandum, except in all instances for changes or
decreases which the Offering Memorandum discloses have
occurred or may occur, for declarations of dividends, 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, increases 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 Offering
Memorandum, 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 D 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.
(e) At the Closing Date, the Initial Purchasers shall
have received a certificate 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 Purchase 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 Offering Memorandum, 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 Offering Memorandum, as it may then be amended or
supplemented.
(f) At the Closing Date, the Initial Purchasers shall
have received duly executed counterparts of the Supplemental
Indenture and the Registration Rights Agreement.
(g) 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 (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial
Purchasers shall have received from the Company evidence
reasonably satisfactory to the Initial Purchasers that the
Bonds have received ratings of Baa3 or better from Xxxxx'x
Investors Service, Inc. and BBB- or better from Standard &
Poor's Ratings Services.
(i) 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 first mortgage bonds in any
respect.
(j) 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 Initial Purchasers, materially impairs the investment
quality of the Bonds.
(k) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Initial Purchasers.
(l) The Company shall furnish the Initial Purchasers
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 6
shall not have been fulfilled, this Purchase Agreement may be
terminated by Xxxxxx Brothers Inc., on behalf of the Initial
Purchasers, 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 (d) of Section 5
and in Section 9.
SECTION 7. Condition of the Company's Obligations.
The obligations of the Company hereunder shall be subject to the
condition that, 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, an order
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 Purchase Agreement.
In case the condition specified in this Section 7 shall
not have been fulfilled, this Purchase Agreement may be
terminated by the Company upon notice thereof to the Initial
Purchasers. Any such termination shall be without liability of
any party to any other party, except as otherwise provided in
paragraph (d) of Section 5 and in Section 9.
SECTION 8. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless the Initial Purchasers and each person who controls the
Initial Purchasers 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 Initial Purchaser or any or all of them
may become subject under the Exchange Act or any other statute or
common law and shall reimburse the Initial Purchasers 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 Offering Memorandum, 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;
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 Initial
Purchaser specifically for use in connection with the preparation
of the Offering Memorandum or any amendment or supplement
thereto. No indemnity by the Company to the Initial Purchasers
and any person who controls the Initial Purchasers within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act hereunder shall apply in respect of the Offering
Memorandum furnished by an Initial Purchaser to a person to whom
any of the Bonds are sold, insofar as such indemnity relates to
any untrue or misleading statement or omission made in the
Offering Memorandum but eliminated or remedied prior to the
consummation of such sale in any amendment or supplement thereto,
unless a copy of such amendment or supplement (excluding
documents incorporated by reference in the Offering Memorandum)
is furnished by such Initial Purchaser to such person on or
before the confirmation of such sale.
(b) Each Initial Purchaser 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 Exchange 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 Offering Memorandum, 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, 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 Initial Purchaser specifically for use in
connection with the preparation of the Offering Memorandum or any
amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the Offering Memorandum (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 8 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 Initial Purchasers 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 the Initial Purchasers
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 Initial
Purchasers on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (after
deducting the discounts and commissions received by the Initial
Purchasers in respect of the offering but before deducting
expenses) to the Company bear to the total discounts and
commissions received by the Initial Purchasers from the Company
under this Purchase Agreement. The relative fault of the Company
on the one hand and the Initial Purchasers 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 Initial
Purchasers and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this
Section 8(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 8(d), no
Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Bonds
purchased by such Initial Purchaser and distributed pursuant to
the terms hereof exceeds the amount of any damages which such
Initial Purchaser 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 obligations of the
Initial Purchasers to contribute pursuant to this Section 8(d)
are several in proportion to their respective purchase
obligations and not joint.
SECTION 9. Survival of Certain Representations and
Obligations. Any other provision of this Purchase Agreement to
the contrary notwithstanding, (a) the indemnity and contribution
agreements contained in Section 8 of, and the representations and
warranties and other agreements of the Company contained in, this
Purchase Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by the Initial
Purchasers or on their behalf or by or on behalf of the Company
or its directors or officers, or any of the other persons
referred to in Section 8 hereof and (ii) acceptance of
and payment for the Bonds and (b) the indemnity and contribution
agreements contained in Section 8 shall remain operative and in
full force and effect regardless of any termination of this
Purchase Agreement.
SECTION 10. Termination. This Purchase Agreement
shall be subject to termination by written notice from Xxxxxx
Brothers Inc., as representative of the Initial Purchasers, to
the Company, if (a) after the execution and delivery of this
Purchase 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 Xxxxxx Brothers Inc., as representative
of the Initial Purchasers, 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 Xxxxxx
Brothers Inc., as representative of the Initial Purchasers,
impracticable to market the Bonds. This Purchase Agreement shall
also be subject to termination, upon notice by Xxxxxx Brothers
Inc., as representative of the Initial Purchasers, as provided
above, if, in the judgment of Xxxxxx Brothers Inc., as
representative of the Initial Purchasers, the subject matter of
any amendment or supplement (prepared by the Company) to the
Offering Memorandum issued after the effectiveness of this
Purchase Agreement by the Company shall have materially impaired
the marketability of the Bonds. Any termination hereof, pursuant
to this Section 10, shall be without liability of any party to
any other party, except as otherwise provided in paragraph (d) of
Section 5 and in Section 9.
SECTION 11. Default of Initial Purchasers. If any
Initial Purchaser 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 Initial
Purchaser agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Bonds,
the other Initial Purchasers shall be obligated to purchase the
Bonds that such defaulting Initial Purchaser agreed but failed or
refused to purchase; provided that in no event shall the
principal amount of Bonds that such Initial Purchaser 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 Initial
Purchaser. If such Initial Purchaser 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 Initial
Purchasers 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 Initial Purchaser 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
Initial Purchasers 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 Initial Purchaser
had agreed to purchase, or that portion thereof that the
remaining Initial Purchasers 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 Initial
Purchasers within 24 hours (excluding any Saturday, Sunday, or
legal holiday) of the time when the Company learns of the failure
or refusal of any Initial Purchaser 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 Purchase Agreement. In the absence of such
election by the Company, this Purchase Agreement will, unless
otherwise agreed by the Company and the non-defaulting Initial
Purchasers, terminate without liability on the part of any non-
defaulting party except as otherwise provided in paragraph (d) of
Section 5 and in Section 9. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from
liability in respect of its default under this Purchase
Agreement.
SECTION 12. Miscellaneous. THE RIGHTS AND DUTIES OF
THE PARTIES TO THIS PURCHASE AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. This Purchase Agreement shall
become effective when a fully executed copy hereof is delivered
to the Initial Purchasers by the Company. This Purchase
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 Purchase Agreement shall
inure to the benefit of each of the Company, the Initial
Purchasers and, with respect to the provisions of Section 8, each
director, officer and other persons referred to in Section 8, and
their respective successors. Should any part of this Purchase
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 Purchase 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 Purchase Agreement. The term "successor"
as used in this Purchase Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Initial
Purchasers.
SECTION 13. Notices. All communications hereunder
shall be in writing and, if to the Initial Purchasers, shall be
mailed or delivered to Xxxxxx Brothers Inc., as representative of
the Initial Purchasers, at the address set forth at the beginning
of this Purchase Agreement to the attention of Debt Capital
Markets-Power Group, with a copy to the General Counsel, or, if
to the Company, shall be mailed or delivered to it at 000 Xxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 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 Gulf States, Inc.
By: /s/Xxxxx Wlliford
-------------------------
Name: Xxxxx Xxxxxxxxx
Title:Assistant Treasurer
Accepted as of the date first above written:
Xxxxxx Brothers Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
XX Xxxxx Securities Corporation
The Royal Bank of Scotland plc
By: Xxxxxx Brothers Inc.
By: /s/ Xxxxxx Xxxxx
------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
SCHEDULE I
Entergy Gulf States, Inc.
$200,000,000 First Mortgage Bonds
5.20% Series due December 3, 2007
Name of Initial Purchasers Principal Amount of Bonds
Xxxxxx Brothers Inc. $160,000,000
Banc One Capital Markets, Inc. 10,000,000
BNY Capital Markets, Inc. 10,000,000
XX Xxxxx Securities Corporation 10,000,000
The Royal Bank of Scotland plc 10,000,000
------------
TOTAL $200,000,000
============
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
November ____, 2002
Xxxxxx Brothers Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
XX Xxxxx Securities Corporation
The Royal Bank of Scotland plc
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I, together with Xxxxxx Xxxx & Priest LLP, of New York, New
York, and Xxxxxx, Xxxx & Xxxxxx, L.L.P., of Beaumont, Texas, have
acted as counsel for Entergy Gulf States, Inc., a Texas
corporation (the "Company"), in connection with the issuance and
sale to you pursuant to a Purchase Agreement, effective November
1, 2002 (the "Purchase Agreement"), between the Company and you,
of $200,000,000 aggregate principal amount of its First Mortgage
Bonds, 5.20% Series due December 3, 2007 (the "Bonds"), issued
pursuant to the Company's Indenture of Mortgage, dated September
1, 1926, with JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "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 Sixty-first Supplemental Indenture, dated as
of November 1, 2002 (the "Supplemental Indenture") (the Indenture
of Mortgage 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 Purchase Agreement.
In my capacity as such counsel, I have either participated
in the preparation of or have examined and am familiar with: (a)
the Company's Restated Articles of Incorporation and the
Company's By-laws, as amended; (b) the Purchase Agreement; (c)
the Registration Rights Agreement; (d) the Mortgage; (e) the
Offering Memorandum; (f) 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, the Purchase Agreement and
the Registration Rights Agreement; and (f) the proceedings before
and the order entered by the Commission under the Holding Company
Act relating to the issuance and sale of the Bonds by the
Company. I have also examined or caused to be examined such
other documents and have satisfied myself as to such other
matters as I have deemed necessary in order to render this
opinion. I have not examined the Bonds, except a specimen
thereof, and I have relied upon a certificate of the Trustee as
to the authentication and delivery thereof.
In my examination, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as
originals, the legal capacity of natural persons, the conformity
with the originals of all documents submitted to me as copies and
the authenticity of the originals of such latter documents. In
making my examination of documents and instruments executed or to
be executed by persons other than the Company, I 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, I have also assumed, insofar
as 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. I have further assumed that each document,
instrument, agreement, record and certificate reviewed by me 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 I 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, I have relied upon certificates and representations of
officers of the Company (including but not limited to those
contained in the Purchase 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.
Whenever my opinions herein with respect to the existence or
absence of facts are stated to be to my knowledge or awareness, I
intend to signify that no information has come to my attention or
the attention of any other attorneys acting for or on behalf of
the Company or any of its affiliates that have participated in
the negotiation of the transactions contemplated by the Purchase
Agreement, the Registration Rights Agreement and the Mortgage, in
the preparation of the Offering Memorandum or in the preparation
of this opinion letter that would give me, or them, actual
knowledge that would contradict such opinions. However, except
to the extent necessary in order to give the opinions hereinafter
expressed, neither I nor they have undertaken any independent
investigation to determine the existence or absence of such
facts, and no inference as to knowledge of the existence or
absence of such facts (except to the extent necessary in order to
give the opinions hereinafter expressed) should be assumed.
In rendering the opinion set forth in paragraph (2) below, I
have relied upon reports and/or opinions by counsel who
historically acted on behalf of the Company in real estate
transactions and transactions involving the Mortgage and in whom
I have confidence, including Xxxxxx, Xxxx & Xxxxxx, L.L.P, Texas
counsel for the Company, and information from officers of the
Company responsible for the acquisition of real property and/or
maintenance of records with respect thereto, which I believe to
be satisfactory in form and scope and which I have no reason to
believe are inaccurate in any material respect. I have not, for
purposes of rendering such opinion, conducted an independent
examination or investigation of official title records (or
abstracts thereof) with respect to property (i) acquired by the
Company prior to the date of the most recent report and/or
opinions of counsel, (ii) as to which title insurance has been
obtained or (iii) the aggregate purchase price of which was not
material.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, I am 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 Texas, has due corporate power and authority to
conduct the business that it is described as conducting in
the Offering Memorandum 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 Louisiana.
(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 excepted from
and released under the terms of the Mortgage), subject only
to Permitted 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 in the
conduct of its electric and gas utility business. The
description of such properties set forth in the Mortgage is
adequate to constitute the Mortgage as a lien thereon; and
subject to paragraph (3) hereof, the Mortgage, subject only
to such minor defects and Permitted Encumbrances,
constitutes a valid, direct and first mortgage lien upon
said properties, which include substantially all of the
permanent physical properties and franchises of the Company
(other than those expressly excepted). All permanent
physical properties and franchises (other than those
expressly excepted) 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 Permitted 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) (a) It will be necessary to record the
Supplemental Indenture in the land title records in each
Parish in Louisiana in which is located tangible immovable
property of the Company that is subjected to the lien of the
Mortgage by the granting clauses of the Mortgage (including
the granting clauses of the Supplemental Indenture), in
order that it become enforceable against third parties.
Upon such recordation, the Mortgage (including the granting
clauses of the Supplemental Indenture) will be continued and
be effective, under 12:702 of the Louisiana Revised
Statutes, as to after-acquired and/or future property of the
Company to the extent set forth therein (which property may
be described in general terms) until six (6) years after the
maturity date of the last maturing bonds issued under the
Mortgage. No further recordation or filing in Louisiana is
necessary to effect or preserve the lien of the Mortgage for
the benefit of the holders of the Bonds or to make such lien
effective as to and enforceable against third parties.
(b) It will be necessary to deposit the
Supplemental Indenture in the office of the Secretary of the
State of Texas in accordance with 35.02 of the Texas
Business and Commerce Code, as amended. Upon the deposit of
the Supplemental Indenture as aforesaid, the lien granted
thereby shall be perfected, and the perfection and notice
provided by such filing shall continue in effect until
terminated or released as to specific property by the filing
of a termination statement or release signed by the secured
party. No renewal, refiling or continuation of such filing
is required, and no further or other recordation or filing
under Texas law is requisite to preserve or protect the lien
of the Mortgage for the benefit of the holders of the Bonds
or to make such lien effective as to and enforceable against
third parties.
(c) All permanent physical properties and
franchises of the Company (other than those expressly
excepted in the Mortgage) presently owned by the Company are
subject to the lien of the Mortgage, subject to minor
defects and Permitted Encumbrances of the character referred
to in paragraph (2) hereof.
(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 as may be limited by (i)
the laws of the States of Texas and Louisiana, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
which laws do not, in my opinion, make inadequate remedies
necessary for the realization of the benefits of such
security, and (ii) 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).
(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 Registration Rights Agreement 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 applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
except as the rights to indemnification and contribution
thereunder may be limited by federal or state securities
laws or public policy.
(7) The statements made in the Offering
Memorandum under the caption "Description of New Bonds" and
"Exchange Offer; Registration Rights," 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.
(8) The Purchase Agreement has been duly
authorized, executed and delivered by the Company.
(9) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which I do not pass, the
documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated or deemed to
be incorporated by reference in the Offering Memorandum, on
the respective dates 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.
(10) An appropriate order has 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 my knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of
any governmental body (other than under the Securities Act
and the Trust Indenture Act in connection with the
transactions contemplated by the Registration Rights
Agreement 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 Purchase 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, the Registration Rights
Agreement and the Purchase Agreement.
(11) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the
Company of the Purchase Agreement, the Registration Rights
Agreement and the Mortgage (a) will not violate any
provision of the Company's Restated Articles of
Incorporation or the Company's By-laws, as amended, (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
me (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 my 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).
(12) Assuming that (i) the representations and
warranties of each of the Company and you set forth in
Sections 3(g), (h) and (j) and Section 4(b), respectively,
of the Purchase Agreement are accurate and the agreements
contained therein have been duly complied with, (ii) the
Company will duly perform all of the covenants and
agreements set forth in Sections 5(g), (h), (i), (j) and (k)
of the Purchase Agreement and (iii) you have complied with
the offering and transfer procedures and restrictions
described in the Offering Memorandum, no registration of the
Bonds under the Securities Act or qualification of the
Mortgage under the Trust Indenture Act is required in
connection with the offer and sale of the Bonds by the
Company and the offer, initial resale and delivery of the
Bonds by you in the manner contemplated by the Purchase
Agreement and the Offering Memorandum (it being understood
that I do not express any opinion concerning any sale of the
Bonds subsequent to the initial resales thereof by you).
In connection with the preparation by the Company of the
Offering Memorandum, I 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 incorporated by
reference in the Offering Memorandum. My examination of the
Offering Memorandum and the above-mentioned discussions did not
disclose to me any information which gives me reason to believe
that the Offering Memorandum, as of its date 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. I 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 Offering Memorandum or (ii) the
information contained in the Offering Memorandum under the
caption "Description of New Bonds - Book-Entry Securities."
I have examined the portions of the information contained in
the Offering Memorandum that are stated therein to have been made
on my authority, and I believe such information to be correct. I
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 Texas and Louisiana law.
With respect to the opinions set forth in paragraphs (4) and
(5) above, I call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and the regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Mortgage)
who seek to acquire, possess or use nuclear production
facilities.
I am a member of the Bar of the State of Louisiana and do
not hold myself out for purposes of this opinion as an expert on
the laws of any jurisdiction other than the State of Louisiana
and the United States of America. As to all matters of Texas and
New York law, I have relied, with your approval, in the case of
Texas law, upon the opinion of even date herewith addressed to me
(and in which it is stated you may rely) of Xxxxxx, Xxxx &
Xxxxxx, L.L.P of Beaumont, Texas and, in the case of New York
law, upon the opinion of even date herewith addressed to you of
Xxxxxx Xxxx & Priest LLP of New York, New York.
The opinion set forth above is solely for your benefit in
connection with the Purchase 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 my
prior written consent, except that Xxxxxx Xxxx & Priest LLP and
Pillsbury Winthrop LLP may rely on this opinion as to all matters
of Louisiana law in rendering their opinions required to be
delivered under the Purchase Agreement.
Very truly yours,
Xxxx X. Xxxx
Senior Counsel-Corporate and Securities
EXHIBIT B
[Letterhead of Xxxxxx Xxxx & Priest LLP]
November __, 2002
Xxxxxx Brothers Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
XX Xxxxx Securities Corporation
The Royal Bank of Scotland plc
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Xxxx X. Xxxx, Esq., Senior Counsel-
Corporate and Securities of Entergy Services, Inc., and Xxxxxx,
Xxxx & Xxxxxx, L.L.P., of Beaumont, Texas, have acted as counsel
for Entergy Gulf States, Inc., a Texas corporation (the
"Company"), in connection with the issuance and sale to you
pursuant to the Purchase Agreement, effective November 1, 2002
(the "Purchase Agreement"), between the Company and you, of
$200,000,000 aggregate principal amount of its First Mortgage
Bonds, 5.20% Series due December 3, 2007 (the "Bonds"), issued
pursuant to the Company's Indenture of Mortgage, dated September
1, 1926, with JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "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 Sixty-first Supplemental Indenture, dated as
of November 1, 2002 (the "Supplemental Indenture") (the Indenture
of Mortgage 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 Purchase 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 the
Company's By-Laws, as amended; (b) the Purchase Agreement; (c)
the Registration Rights Agreement; (d) the Mortgage; (e) the
Offering Memorandum; (f) 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, the Registration Rights
Agreement and the Purchase Agreement; and (g) the proceedings
before and the order 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 a specimen thereof, and we
have relied upon a certificate of the 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 as may be limited by (i) the laws of the
States of Texas and Louisiana, where the property covered
thereby is located, affecting the remedies for the
enforcement of the security provided for therein, and (ii)
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).
(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 Registration Rights Agreement 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 applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
except as the rights to indemnification and contribution
thereunder may be limited by federal or state securities
laws or public policy.
(4) The statements made in the Offering Memorandum
under the caption "Description of New Bonds" and "Exchange
Offer; Registration Rights," 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.
(5) The Purchase Agreement has been duly authorized,
executed and delivered by the Company.
(6) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the documents
or portions thereof filed with the Commission pursuant to
the Exchange Act, and incorporated or deemed to be
incorporated by reference in the Offering Memorandum, on the
respective dates 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.
(7) An appropriate order has 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 order is in full force and effect; no
further approval, authorization, consent or other order of
any governmental body (other than under the Securities Act
and the Trust Indenture Act in connection with the
transactions contemplated by the Registration Rights
Agreement 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 Purchase 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, the Registration Rights
Agreement and the Purchase Agreement.
(8) Assuming that (i) the representations and
warranties of each of the Company and you set forth in
Sections 3(g), (h) and (j) and Section 4(b), respectively,
of the Purchase Agreement are accurate and the agreements
contained therein have been duly complied with, (ii) the
Company will duly perform all of the covenants and
agreements set forth in Sections 5(g), (h), (i), (j) and (k)
of the Purchase Agreement and (iii) you have complied with
the offering and transfer procedures and restrictions
described in the Offering Memorandum, no registration of the
Bonds under the Securities Act or qualification of the
Mortgage under the Trust Indenture Act is required in
connection with the offer and sale of the Bonds by the
Company and the offer, initial resale and delivery of the
Bonds by you in the manner contemplated by the Purchase
Agreement and the Offering Memorandum (it being understood
that we do not express any opinion concerning any sale of
the Bonds subsequent to the initial resales thereof by you).
While we have, for purposes of this opinion, reviewed and
are familiar with the Offering Memorandum, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the Offering Memorandum and take no responsibility
therefor, except insofar as such statements relate to us and as
set forth in paragraph (4) above. In connection with the
preparation by the Company of the Offering Memorandum, 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 incorporated by reference in the Offering
Memorandum. Our examination of the Offering Memorandum and our
discussions did not disclose to us any information which gives us
reason to believe that the Offering Memorandum, as of its date
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 Offering Memorandum
or (ii) the information contained in the Offering Memorandum
under the caption "Description of New Bonds - Book-Entry
Securities."
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and the regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Mortgage)
who seek to acquire, possess or use nuclear production
facilities.
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. As to all matters of Louisiana law, we have
relied upon the opinion of even date herewith addressed to you by
Xxxx X. Xxxx, Esq., Senior Counsel-Corporate and Securities of
Entergy Services, Inc. and as to all matters of Texas law, we
have relied upon the opinion of even date herewith addressed to
you (or in which it is stated you may rely) of Xxxxxx, Xxxx &
Xxxxxx, L.L.P, Texas counsel to the Company. We have not
examined into and are not passing 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 Purchase 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 X. Xxxx, Esq., Senior
Counsel-Corporate and Securities of Entergy Services, Inc., may
rely on this opinion as to all matters of New York law in
rendering his opinion required to be delivered under the Purchase
Agreement.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
EXHIBIT C
[Letterhead of Pillsbury Winthrop LLP]
November ____, 2002
Xxxxxx Brothers Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
XX Xxxxx Securities Corporation
The Royal Bank of Scotland plc
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for you as the Initial Purchasers
of $200,000,000 aggregate principal amount of First Mortgage
Bonds, 5.20% Series due December 3, 2007 (the "Bonds"), issued by
Entergy Gulf States, Inc., a Texas corporation (the "Company"),
under the Company's Indenture of Mortgage, dated September 1,
1926, with JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "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 Sixty-first Supplemental Indenture, dated as
of November 1, 2002 (the Indenture of Mortgage as so amended and
supplemented being hereinafter referred to as the "Mortgage"),
pursuant to the Purchase Agreement between you and the Company
dated November 1, 2002 (the "Purchase Agreement"). Capitalized
terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Purchase 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 without
independent investigation upon the opinions of even date herewith
addressed to you (or in which it is stated you may rely) by Xxxx
X. Xxxx, Esq., Senior Counsel-Corporate and Securities of Entergy
Services, Inc., as to all matters of Louisiana law related to
this opinion and by Xxxxxx, Xxxx & Xxxxxx, L.L.P as to all
matters of Texas law related to this opinion. We have reviewed
said opinions and believe that they are satisfactory. We have
also reviewed the opinion of Xxxxxx Xxxx & Priest LLP required by
Section 6(b) of the Purchase Agreement, and we believe that said
opinion is 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 Purchase
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 Purchase Agreement, and upon statements in
the Offering Memorandum. In such review, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, 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 a specimen thereof, and we
have relied upon a certificate of the Trustee as to the
authentication and delivery of the Bonds by the Trustee and as to
the authorization, execution and delivery of the Supplemental
Indenture by the Trustee. We have not examined into, and are
expressing no opinion or belief as to matters relating to, 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 Texas and Louisiana, 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.
(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 by general equitable principles (whether
considered in a proceeding in equity or at law) and 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 Registration Rights Agreement 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 applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights, by 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 except as the rights to indemnification and
contribution thereunder may be limited by federal or state
securities laws or public policy.
(4) The statements made in the Offering Memorandum
under the caption "Description of New Bonds" and "Exchange
Offer; Registration Rights," 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.
(5) The Purchase Agreement has been duly authorized,
executed and delivered by the Company.
(6) An appropriate order has been issued 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 order is in full force and
effect; and no further approval, authorization, consent or
other order of any governmental body (other than under the
Securities Act and the Trust Indenture Act in connection
with the transactions contemplated by the Registration
Rights Agreement 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 Purchase
Agreement.
(7) 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 documents filed by the Company with the Commission
pursuant to the Exchange Act and incorporated or deemed to
be incorporated by reference in the Offering Memorandum, 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.
(8) Assuming that (i) the representations and
warranties of each of the Company and you set forth in
Sections 3(g), (h) and (j) and Section 4(b), respectively,
of the Purchase Agreement are accurate and the agreements
contained therein have been duly complied with, (ii) the
Company will duly perform all of the covenants and
agreements set forth in Sections 5(g), (h), (i), (j) and (k)
of the Purchase Agreement and (iii) you have complied with
the offering and transfer procedures and restrictions
described in the Offering Memorandum, no registration of the
Bonds under the Securities Act or qualification of the
Mortgage under the Trust Indenture Act is required in
connection with the offer and sale of the Bonds by the
Company and the offer, initial resale and delivery of the
Bonds by you in the manner contemplated by the Purchase
Agreement and the Offering Memorandum (it being understood
that we do not express any opinion concerning any sale of
the Bonds subsequent to the initial resales thereof by you).
While we have, for purposes of this opinion, reviewed and
are familiar with the Offering Memorandum, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the Offering Memorandum and take no responsibility
therefor, except insofar as such statements relate to us and as
set forth in paragraph (4) above. In connection with the
preparation by the Company of the Offering Memorandum, we have
had discussions with certain officers, employees and
representatives of the Company and Entergy Services, Inc., with
counsel for the Company and with your representatives and with
the independent certified public accountants of the Company who
audited certain of the financial statements incorporated by
reference in the Offering Memorandum. Our review of the Offering
Memorandum and the above-mentioned discussions did not disclose
to us any information that gives us reason to believe that the
Offering Memorandum, as of its date and at the date hereof,
taking into account the documents incorporated by reference
therein, 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 the financial statements
or other financial or statistical data included or incorporated
by reference in the Offering Memorandum.
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that (i) Section
9.06 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
Trustee and (ii) the provisions of the Atomic Energy Act of 1954,
as amended, and regulations promulgated thereunder impose certain
licensing and other requirements upon persons (such as the
Trustee or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
This opinion is solely for your benefit in connection with
the Purchase 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 D
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 6(d)(iv) OF THE PURCHASE 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 116 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 36 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 44 The amounts of electric
RESULTS" operating revenues (by
source) for the three and
six month periods ended June
30, 2002 and 2001
