[FORM OF DEBT SECURITIES UNDERWRITING AGREEMENT]
Exhibit 1(b)
Entergy Arkansas, Inc.
$_____________
___% [Insert Title of Debt Securities]
UNDERWRITING AGREEMENT
_______ __, ____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies & Gentlemen:
The undersigned, Entergy Arkansas, Inc., a Louisiana
corporation (the "Company"), proposes to issue and sell severally
to you, as underwriters (the "Underwriters," which term, when the
context permits shall also include any underwriters substituted
as hereinafter in Section 11 provided), an aggregate of
$___________ principal amount of the Company's ___% [Insert title
of Debt Securities] (the "Securities"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the Securities at ____% of
the principal amount thereof [plus accrued interest thereon from
_____ __, ____ to the Closing Date (as defined herein)], in the
principal amount set forth opposite the name of such Underwriter
in Schedule I hereto.
SECTION 2. Description of Securities. The Securities shall
be issued under and pursuant to an Indenture (For Unsecured Debt
Securities) dated as of ________ __, ____ between the Company and
_____________, as trustee (the "Trustee"), including the terms of
the Securities established as contemplated by Section 301 thereof
(the "Indenture"). The Securities and the Indenture shall have
the terms and provisions described in the Prospectus (as defined
herein), provided that subsequent to the date hereof and prior to
the Closing Date the form of the Indenture may be amended by
mutual agreement between the Company and the Underwriters.
SECTION 3. Representations and Warranties of the Company.
The Company represents and warrants to the several Underwriters,
and covenants and agrees with the several Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power authority to
conduct the business that it is described in the Prospectus as
conducting and to own and operate the properties owned and
operated by it in such business.
(b) The Company also filed with the Commission a
registration statement on Form S-3 (File No. 333-______) (the
"Registration Statement") for the registration of $300,000,000
aggregate offering price of the Company's Debt Securities and/or
First Mortgage Bonds, the registration statement has become
effective. The Company qualifies for use of Form S-3 for the
registration of the Securities and the Securities are registered
under the Securities Act. The combined prospectus forming a part
of the registration statement pursuant to Rule 429 under the
Securities Act, at the time the registration statement (or the
most recent amendment thereto filed prior to the time of
effectiveness of this Underwriting Agreement) became effective,
including all documents incorporated by reference therein at that
time pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus." In the event that (i) the Basic
Prospectus shall have been amended, revised or supplemented (but
excluding any amendments, revisions or supplements to the Basic
Prospectus relating solely to securities other than the
Securities) prior to the time of effectiveness of the
Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Securities, or
(ii) the Company shall have filed documents pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") after the time the registration statement became
effective and prior to the time of effectiveness of this
Underwriting Agreement (but excluding documents incorporated
therein by reference relating solely to securities other than the
Securities), which documents are deemed to be incorporated by
reference in the Basic Prospectus pursuant to Item 12 of Form S-
3, the term "Basic Prospectus" as used herein shall also mean
such prospectus as so amended, revised or supplemented and
reflecting such incorporation by reference. Such registration
statement, in the form in which it became effective and as it may
have been amended by all amendments thereto as of the time of
effectiveness of this Underwriting Agreement (including, for
these purposes, as an amendment any document incorporated by
reference in the Basic Prospectus), and the Basic Prospectus as
it shall be supplemented to reflect the terms of the offering and
sale of the Securities by a prospectus supplement (a "Prospectus
Supplement") to be filed with the Commission pursuant to Rule
424(b) under the Securities Act ("Rule 424(b)"), are hereinafter
referred to as the "Registration Statement" and the "Prospectus,"
respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d) hereof, the Company will not file any amendment to the
Registration Statement or any supplement to the Prospectus
(except any amendment or supplement relating solely to securities
other than the Securities), and (ii) between the time of
effectiveness of this Underwriting Agreement and the Closing
Date, the Company will not file any document that is to be
incorporated by reference in, or any supplement to, the Basic
Prospectus, in either case, without prior notice to the
Underwriters and to Winthrop, Stimson, Xxxxxx & Xxxxxxx ("Counsel
for the Underwriters"), or any such amendment or supplement to
which said Counsel shall reasonably object on legal grounds in
writing. For purposes of this Underwriting Agreement, any
document that is filed with the Commission after the time of
effectiveness of this Underwriting Agreement and incorporated or
deemed to be incorporated by reference in the Prospectus (except
documents incorporated by reference relating solely to securities
other than the Securities) pursuant to Item 12 of Form S-3 shall
be deemed a supplement to the Prospectus.
(d) The Registration Statement, at the Effective Date
(as defined below), and the Indenture, at such time, fully
complied, and the Prospectus, when delivered to the Underwriters
for their use in making confirmations of sales of the Securities
and at the Closing Date, as it may then be amended or
supplemented, will fully comply, in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, (the "Trust Indenture Act") and the rules
and regulations of the Commission thereunder or pursuant to said
rules and regulations did or will be deemed to comply therewith.
The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3, on
the date filed with the Commission pursuant to the Exchange Act,
fully complied or will fully comply in all material respects with
the applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder or pursuant to said
rules and regulations did or will be deemed to comply therewith.
On the later of (i) the date such Registration Statement (or the
most recent post-effective amendment thereto, but excluding any
post-effective amendment relating solely to debt securities other
than the Securities) was declared effective by the Commission
under the Securities Act and (ii) the date that the Company's
most recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act (such date is hereinafter
referred to as the "Effective Date"), such Registration Statement
did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time the Prospectus is delivered
to the Underwriters for their use in making confirmations of
sales of the Securities and at the Closing Date, the Prospectus,
as it may then be amended or supplemented, will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and, on said dates and at such times, the documents
then incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or the
Prospectus, as it may then be amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this
paragraph (d) shall not apply to statements or omissions made in
reliance upon and in conformity with written information
furnished to the Company by the Underwriters or on behalf of any
Underwriter specifically for use in connection with the
preparation of the Registration Statement or the Prospectus, as
they may be then amended or supplemented, or to any statements in
or omissions from the statement of eligibility on Form T-1 of the
Trustee, as it may be amended, under the Trust Indenture Act
filed as an exhibit to the Registration Statement (the "Form T-
1").
(e) The issuance and sale of the Securities and the
fulfillment of the terms of this Underwriting Agreement and the
Indenture will not result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Company is now a party.
(f) Except as set forth or contemplated in the
Prospectus, as it may then be 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.
SECTION 4. Offering. The Underwriters advise the Company
that they propose to make a public offering of their respective
portions of the Securities as soon after the effectiveness of
this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the
Securities will be offered to the public at the initial public
offering price specified in the Prospectus Supplement [plus
accrued interest thereon, if any, from ________ __, ____ to the
Closing Date].
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of the Securities 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 ________ __, ____, or at such other time on the same or
such other day as shall be agreed upon by the Company and [Lead
Manager], or as may be established in accordance with Section 11
hereof. The hour and date of such delivery and payment are
herein called the "Closing Date."
The Securities shall be delivered to the Underwriters
in book-entry only form through the facilities of The Depository
Trust Company in New York, New York. The certificates for the
Securities shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Securities, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Securities available to the Underwriters for checking
not later than 2:30 P.M., New York time, on the last business day
preceding the Closing Date at such place as may be agreed upon
between the Underwriters and the Company, or at such other time
and/or date as may be agreed upon between the Underwriters and
the Company.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a conformed copy of each Registration
Statement in the form that it or the most recent post-effective
amendment thereto became effective, certified by an officer of
the Company to be in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with the Commission pursuant to and in compliance with Rule
424(b) and will advise [Lead Manager] promptly of the issuance of
any stop order under the Securities Act with respect to either of
the Registration Statement or the institution of any proceedings
therefor of which the Company shall have received notice. The
Company will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof if
issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company, or of which the Company shall be advised
by the Underwriters in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Securities, the Company will amend or
supplement the Prospectus by either (i) preparing and filing with
the Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading. Unless such event relates solely to the
activities of the Underwriters (in which case the Underwriters
shall assume the expense of preparing any such amendment or
supplement), the expenses of complying with this Section 6(d)
shall be borne by the Company until the expiration of nine months
from the time of effectiveness of this Underwriting Agreement,
and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve
months beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner, as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Securities for offer and sale, under the blue sky laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the
Registration Statement and any post-effective amendments thereto,
(ii) the printing, issuance and delivery of the Securities and
the preparation, execution, printing and recordation of the
Indenture, (iii) legal counsel relating to the qualification of
the Securities under the blue sky laws of various jurisdictions,
in an amount not to exceed $3,500, (iv) the printing and delivery
to the Underwriters of reasonable quantities of copies of the
Registration Statement, the preliminary (or any supplemental)
blue sky survey, any preliminary prospectus supplement relating
to the Securities and the Prospectus and any amendment or
supplement thereto, except as otherwise provided in paragraph (d)
of this Section 6, (v) the rating of the Securities 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 expenses of the Underwriters, except that, if this
Underwriting Agreement shall be terminated in accordance with the
provisions of Section 7, 8 or 12 hereof, the Company will
reimburse the Underwriters for (A) the reasonable fees and
expenses of Counsel for the Underwriters, whose fees and expenses
the Underwriters agree to pay in any other event, and (B)
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding $15,000, incurred in contemplation of the performance
of this Underwriting Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account of
loss of anticipated profits.
(h) The Company will not sell any additional debt
securities without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date and (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Underwriters agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the
Securities shall be subject to the accuracy on the date hereof
and on the Closing Date of the representations and warranties
made herein on the part of the Company and of any certificates
furnished by the Company on the Closing Date and to the following
conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) prior to 5:30 P.M., New York
time, on the second business day following the date of this
Underwriting Agreement, or such other time and date as may be
agreed upon by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of
either of the Registration Statement shall be in effect at or
prior to the Closing Date; no proceedings for such purpose shall
be pending before, or, to the knowledge of the Company or the
Underwriters, threatened by, the Commission on the Closing Date;
and the Underwriters shall have received a certificate, dated the
Closing Date and signed by the President, a Vice President, the
Treasurer or an Assistant Treasurer of the Company, to the effect
that no such stop order has been or is in effect and that no
proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Securities, an
order of the Commission under the Public Utility Holding Company
Act of 1935 (the "1935 Act") authorizing the issuance and sale of
the Securities on the terms set forth in, or contemplated by,
this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from Xxx X. Xxx, Esq., Assistant General 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, (i) with such changes therein as may be agreed upon
by the Company and the Underwriters with the approval of Counsel
for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for use in
offering the Securities, with changes therein to reflect such
supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Xxxxxx & Xxxxxxx, Counsel for
the Underwriters, 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 Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
PricewaterhouseCoopers LLP, the Company's independent certified
public accountants (the "Accountants"), a letter dated the date
hereof and addressed to the Underwriters to the effect that (i)
they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules audited by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ 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 examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund
purposes, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus and (y) set forth in documents filed by
the Company pursuant to Sections 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.
(g) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, (ii) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company that, in the reasonable opinion of the Underwriters,
materially impairs the investment quality of the Securities.
(k) 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 debt securities in any respect.
(l) On or prior to the Closing Date, [Lead Manager]
shall have received from the Company evidence reasonably
satisfactory to it that the Securities have received ratings of
____ from Xxxxx'x Investors Service, Inc. and ____ from Standard
& Poor's Ratings Services, which ratings shall be in full force
and effect on the Closing Date.
(m) All legal matters in connection with the issuance
and sale of the Securities shall be satisfactory in form and
substance to Counsel for the Underwriters.
(n) The Company will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of
either of the Registration Statement shall be in effect at or
prior to the Closing Date, and no proceedings for that purpose
shall be pending before, or threatened by, the Commission on the
Closing Date.
(b) At the Closing Date, there shall have been issued
and, there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Securities, an
order of the Commission under the 1935 Act authorizing the
issuance and sale of the Securities on the terms set forth in, or
contemplated by, this Underwriting Agreement.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to [Lead
Manager]. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424(b)), or in the
Prospectus, as each may be amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with the Commission pursuant to
Rule 424(b)) or the Prospectus or any amendment or supplement to
any thereof or arising out of, or based upon, statements in or
omissions from the Form T-1; and provided further, that the
indemnity agreement contained in this subsection shall not inure
to the benefit of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of the Securities to any person in respect of the Basic
Prospectus or the Prospectus as supplemented or amended,
furnished by any Underwriter to a person to whom any of the
Securities were sold (excluding in both cases, however, any
document then incorporated or deemed incorporated by reference
therein), insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic Prospectus or
the Prospectus but eliminated or remedied prior to the
consummation of such sale in the Prospectus, or any amendment or
supplement thereto furnished on a timely basis by the Company to
the Underwriters pursuant to Section 6(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating solely to securities other than
the Securities and any document then incorporated or deemed
incorporated by reference in the Prospectus or such amendment or
supplement) is furnished by such Underwriter to such person (i)
with or prior to the written confirmation of the sale involved or
(ii) as soon as available after such written confirmation (if it
is made available to the Underwriters prior to settlement of such
sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with the Commission pursuant to Rule
424(b)) or in the Prospectus, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
in each case, if, but only if, such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with the Commission pursuant to
Rule 424(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the "Indemnified Party") shall promptly notify the party or
parties against whom indemnity shall be sought hereunder
(hereinafter called the "Indemnifying Party") in writing, and the
Indemnifying Party shall have the right to participate at its own
expense in the defense or, if it so elects, to assume (in
conjunction with any other Indemnifying Party) the defense
thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees
and expenses. If the Indemnifying Party shall elect not to
assume the defense of any such action, the Indemnifying Party
shall reimburse the Indemnified Party for the reasonable fees and
expenses of any counsel retained by such Indemnified Party. Such
Indemnified Party shall have the right to employ separate counsel
in any such action in which the defense has been assumed by the
Indemnifying Party and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the employment of counsel has
been specifically authorized by the Indemnifying Party or (ii)
the named parties to any such action (including any impleaded
parties) include each of such Indemnified Party and the
Indemnifying Party and such Indemnified Party shall have been
advised by such counsel that a conflict of interest between the
Indemnifying Party and such Indemnified Party may arise and for
this reason it is not desirable for the same counsel to represent
both the Indemnifying Party and the Indemnified Party (it being
understood, however, that the Indemnifying Party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such Indemnified Party (plus any local counsel
retained by such Indemnified Party in its reasonable judgment).
The Indemnified Party shall be reimbursed for all such fees and
expenses as they are incurred. The Indemnifying Party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the Indemnifying Party or if there be a final judgment for the
plaintiff in any such action, the Indemnifying Party agrees to
indemnify and hold harmless the Indemnified Party from and
against any loss or liability by reason of such settlement or
judgment. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any Indemnified Party is or could have been a party and
indemnity has or could have been sought hereunder by such
Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party and any person
controlling any Indemnified Party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an Indemnified Party in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of the Underwriters
and such parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an Indemnified Party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Securities and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any Underwriter
shall fail or refuse (otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder) to purchase and pay
for the principal amount of Securities that it has agreed to
purchase and pay for hereunder, and the aggregate principal
amount of Securities that such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Securities, the other
Underwriters shall be obligated to purchase the Securities that
such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Securities that any Underwriter has agreed to purchase pursuant
to Schedule I hereof be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such principal amount of
Securities without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Securities, the Company shall have the
right (a) to require the non-defaulting Underwriters to purchase
and pay for the respective principal amount of Securities that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Securities that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth of the respective principal amount of
Securities that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or (b) to procure one or more
others, 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 Securities that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a). In the event the
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday, or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter to purchase and pay for its
respective principal amount of Securities, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriters, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement shall
be subject to termination by notice given by written notice from
[Lead Manager] to the Company if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading in securities 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 (iv) there shall have occurred
any outbreak or escalation of hostilities or any calamity or
crisis that, in the judgment of [Lead Manager], is material and
adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of
[Lead Manager], impracticable to market the Securities. This
Underwriting Agreement shall also be subject to termination, upon
notice by [Lead Manager] as provided above, if, in the judgment
of [Lead Manager], the subject matter of any amendment or
supplement (prepared by the Company) to the Prospectus (except
for information relating solely to the manner of public offering
of the Securities, to the activity of the Underwriters or to the
terms of any series of securities of the Company other than the
Securities) filed or issued after the effectiveness of this
Underwriting Agreement by the Company shall have materially
impaired the marketability of the Securities. Any termination
hereof, pursuant to this Section 12, shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THE RIGHTS AND DUTIES OF THE
PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. This Underwriting Agreement shall
become effective when a fully executed copy thereof is delivered
to the Company and to the Underwriters. This Underwriting
Agreement may be executed in any number of separate counterparts,
each of which, when so executed and delivered, shall be deemed to
be an original and all of which, taken together, shall constitute
but one and the same agreement. This Underwriting Agreement
shall inure to the benefit of each of the Company, the
Underwriters and, with respect to the provisions of Section 9,
each director, officer and other persons referred to in Section
9, and their respective successors. Should any part of this
Underwriting Agreement for any reason be declared invalid, such
declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of
any Securities from the Underwriters.
SECTION 14. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to [Lead Manager] at the address set forth at the
beginning of this Underwriting Agreement (to the attention of
Capital Markets) 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 Arkansas, Inc.
By: ____________________
Name:
Title:
Accepted as of the date first above written:
[Underwriters]
By: [Lead Manager]
By: ____________________
Name:
Title:
SCHEDULE I
Entergy Arkansas, Inc.
___% [Insert Title of Debt Securities]
Name of Underwriter Principal Amount of Securities
________________
Total $
________________
EXHIBIT A
[Letterhead of Friday, Xxxxxxxx & Xxxxx]
________ __, _____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
I, together with Xxxxxx Xxxx & Priest LLP, of New York,
New York, have acted as counsel for Entergy Arkansas, Inc., a
Louisiana corporation (the "Company"), in connection with the
issuance and sale to you, pursuant to the Underwriting Agreement,
effective ________ __, ____ (the "Underwriting Agreement"),
between the Company and you, of an aggregate of $________
principal amount of its % [Insert Title of Debt Securities]
(the "Securities"), issued pursuant to an Indenture (For
Unsecured Debt Securities) dated as of _________ __, ____ between
the Company and _________, as trustee (the "Trustee"), including
the terms of the Securities established as contemplated by
Section 301 thereof (the "Indenture"). This opinion is rendered
to you at the request of the Company. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
In 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 By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
the Prospectus; (e) the records of various corporate proceedings
relating to the authorization, issuance and sale of the
Securities by the Company and the execution and delivery by the
Company of the Indenture and the Underwriting Agreement; and (f)
the proceedings before and the order entered by the Commission
under the 1935 Act relating to the issuance and sale of the
Securities 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 Securities, 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 it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such
other person was created, and is duly qualified and in good
standing in each other jurisdiction where the failure to be so
qualified could reasonably be expected to have a material effect
upon the ability of such other person to execute, deliver and/or
perform such other person's obligations under any such document
or instrument. 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 Underwriting Agreement and the
Indenture and certificates delivered at the closing of the sale
of the Securities) 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 Underwriting Agreement and the Indenture, in the
preparation of the Registration Statement and the Prospectus 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.
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 Arkansas, has due corporate power and authority to
conduct the business that it is described as conducting in
the Prospectus and to own and operate the properties owned
and operated by it in such business and is duly qualified to
conduct such business in the State of Arkansas.
(2) The Indenture 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 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 is qualified under the Trust
Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to my knowledge,
threatened by the Commission.
(3) The Securities 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 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 are
entitled to the benefits provided by the Indenture.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) The statements made in the Prospectus under the
captions "__________________________________" and
"Description of Unsecured Debt Securities" 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.
(6) The issuance and sale by the Company of the
Securities, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement (a)
will not violate any provision of the Company's Restated
Articles of Incorporation or 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 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).
(7) 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
Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b) complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Form T-1, upon which I
do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date filed with
the Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
Registration Statement have become, and on the date hereof
are, effective under the Securities Act, and, to the best of
my knowledge, no stop order suspending the effectiveness of
either of the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened under
Section 8(d) of the Securities Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and
sale of the Securities; 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 orders of the Commission under the
Securities Act and the Trust Indenture Act, which have been
duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities by the Company pursuant to the
Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body is legally required to permit the performance by the
Company of its obligations with respect to the Securities or
under the Indenture and the Underwriting Agreement.
In connection with the preparation by the Company of
the Registration Statement and the Prospectus, I have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
audited certain of the financial statements included or
incorporated by reference in the Registration Statement. My
examination of the Registration Statement and the Prospectus and
such discussions did not disclose to me any information which
gives me reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. 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 Registration Statement or the Prospectus, (ii)
the Form T-1 or (iii) the information contained in the Prospectus
under the caption "Book-Entry Only Securities."
I have examined the portions of the information
contained in the Registration Statement 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
Winthrop, Stimson, Xxxxxx & Xxxxxxx, and concur in the
conclusions expressed therein insofar as they involve questions
of Arkansas law.
I am a member of the Louisiana Bar and, for purposes of
this opinion, do not hold myself out 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 New York law, I have
relied, with your approval, upon the opinion of even date
herewith addressed to you by Xxxxxx Xxxx & Priest LLP of New
York, New York.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without my prior written
consent, except that Xxxxxx Xxxx & Priest LLP and Winthrop,
Stimson, Xxxxxx & Xxxxxxx may rely on this opinion as to all
matters of Louisiana law in rendering their opinions required to
be delivered under the Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Xxxxxx Xxxx & Priest LLP]
___________ __, ____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We, together with Xxx X. Xxx, Esq., Assistant General
Counsel-Corporate and Securities of Entergy Services, Inc., have
acted as counsel for Entergy Arkansas, Inc., a Louisiana
corporation (the "Company"), in connection with the issuance and
sale to you, pursuant to the Underwriting Agreement, effective
________ __, ____ (the "Underwriting Agreement"), between the
Company and you, of an aggregate of $________ principal amount of
its % [Insert Title of Debt Securities] (the "Securities"),
issued pursuant to an Indenture (For Unsecured Debt Securities)
dated as of _________ __, ____ between the Company and _________,
as trustee (the "Trustee"), including the terms of the Securities
established as contemplated by Section 301 thereof (the
"Indenture"). This opinion is rendered to you at the request of
the Company. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
the Prospectus; (e) the records of various corporate proceedings
relating to the authorization, issuance and sale of the
Securities by the Company and the execution and delivery by the
Company of the Indenture and the Underwriting Agreement; and (f)
the proceedings before and the order entered by the Commission
under the 1935 Act relating to the issuance and sale of the
Securities 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, 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 Securities, 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 Indenture 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 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 is duly qualified under the Trust
Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(2) The Securities 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 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 are
entitled to the benefits provided by the Indenture.
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus under the
captions "__________________________________" and
"Description of Unsecured Debt Securities" 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) Except in each case as to the financial statements
and other financial or statistical data included or
incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b) complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Form T-1, upon which we
do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date they were
filed with the Commission, complied as to form in all
material respects with the applicable provisions of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement have become, and on
the date hereof are, effective under the Securities Act and,
to the best of our knowledge, no stop order suspending the
effectiveness of either of the Registration Statement has
been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(6) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and
sale of the Securities; 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 orders of the Commission under the
Securities Act and the Trust Indenture Act, which have been
duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities by the Company pursuant to the
Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body is legally required to permit the performance by the
Company of its obligations with respect to the Securities or
under the Indenture and the Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (5) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who audited certain of the financial
statements included or incorporated by reference in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and such discussions did not
disclose to us any information which gives us reason to believe
that the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time it was filed with the Commission pursuant to Rule 424(b)
and at the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to (i)
the financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus, (ii) the Form T-1 or (iii) the
information contained in the Prospectus Supplement under the
caption "Book-Entry Only Securities."
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 Louisiana and the United
States of America. As to all matters of Louisiana law, we have,
with your consent, relied upon the opinion of even date herewith
of Xxx X. Xxx, Esq., Assistant General Counsel-Corporate and
Securities of Entergy Services, Inc., counsel for the Company.
We have not examined into and are not passing upon matters
relating to the incorporation of the Company.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent, except that Xxx X. Xxx, Esq., Assistant General Counsel-
Corporate and Securities of Entergy Services, Inc. may rely on
this opinion as to all matters of New York law in rendering her
opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
EXHIBIT C
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
_________ __, ____
[Underwriters]
c/o [Lead Manager]
[Address]
Ladies and Gentlemen:
We have acted as counsel for you, as the several
underwriters, of an aggregate of $_________ principal amount of
% [Insert Title of Debt Securities] (the "Securities"), issued by
Entergy Arkansas, Inc., an Arkansas corporation (the "Company"),
under an Indenture (For Unsecured Debt Securities) dated as of
_________ __, ____ between the Company and _________, as trustee
(the "Trustee"), including the terms of the Securities
established as contemplated by Section 301 thereof (the
"Indenture"), pursuant to the agreement between you and the
Company effective ________ __, ____ (the "Underwriting
Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you of Friday,
Xxxxxxxx & Xxxxx, counsel for the Company, as to the matters
covered in such opinion relating to Arkansas and Tennessee law
related to this opinion. We have reviewed said opinion and
believe that it is satisfactory. We have also reviewed the
opinion of Xxxxxx Xxxx & Priest LLP required by Section 7(d) of
the Underwriting Agreement, and we believe said opinion to be
satisfactory.
We have reviewed, and have relied as to matters of fact
material to this opinion upon, the documents delivered to you at
the closing of the transactions contemplated by the Underwriting
Agreement, and we have reviewed such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to render this opinion. As to
such matters of fact material to this opinion, we have relied
upon representations and certifications of the Company and in
such documents and in the Underwriting Agreement, and upon
statements in the Registration Statement. In such review, we
have assumed the genuineness of all signatures, the conformity to
the originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals, and the
correctness of all statements of fact contained in all such
original documents. We have not examined the Securities except a
specimen thereof, and we have relied upon a certificate of the
Trustee as to the authentication and delivery thereof.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture 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 limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and general equitable principles
(whether considered in a proceeding in equity or at law),
and by requirements of good faith, reasonableness and fair
dealing and, to the best of our knowledge, the Indenture is
qualified under the Trust Indenture Act, and no proceedings
to suspend such qualification have been instituted or
threatened by the Commission.
(2) The Securities 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 limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general
equitable principles (whether considered in a proceeding in
equity or at law), and by requirements of good faith,
reasonableness and fair dealing, and are entitled to the
benefits provided by the Indenture.
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus under the
captions "__________________________________" and
"Description of Unsecured Debt Securities" 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) An appropriate order has been issued by the
Commission under the 1935 Act authorizing the issuance and
sale of the Securities, 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 orders of the Commission under
the Securities Act and the Trust Indenture Act, which have
been duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities by the Company pursuant to the
Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or
incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b) complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Form T-1, upon which we
do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with
respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date they were
first 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; to the best of our knowledge, the Registration
Statement have become, and on the date hereof are, effective
under the Securities Act and no stop order suspending the
effectiveness of either of the Registration Statement has
been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) hereof. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we had discussions with certain officers,
employees and representatives of the Company and Entergy Services
Inc., with counsel for the Company and with your representatives.
Our review of the Registration Statement and the Prospectus, and
such discussions, did not disclose to us any information that
gives us reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to (i) the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or Prospectus or (ii) the
Form T-1.
This opinion is solely for your benefit in connection
with the Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose, without our prior written
consent.
Very truly yours,
WINTHROP, STIMSON, XXXXXX & XXXXXXX
EXHIBIT D
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
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