Exhibit B-12(a)
SYSTEM ENERGY RESOURCES, INC.
$30,000,000
7.38% Debentures due October 1, 2000
UNDERWRITING AGREEMENT
October 5, 1995
BEAR, XXXXXXX & CO. INC.
SALOMON BROTHERS INC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
The undersigned, System Energy Resources, Inc., an
Arkansas 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 $30,000,000 principal amount of the Company's
7.38% Debentures due October 1, 2000 (the "Debentures"), 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 respective principal
amounts of the Debentures set forth opposite the name of such
Underwriter in Schedule I attached hereto at 99.35% of the
principal amount of the Debentures plus accrued interest thereon
from October 1, 1995 to the Closing Date (as defined herein).
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to a Trust Indenture dated as
of September 1, 1995 (the "Indenture") between the Company and
Chemical Bank, as Trustee (the "Trustee"). The Debentures 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 and authority to
conduct the business which 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 has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 33-61189) for the registration of
$265,000,000 principal amount of the Company's debt securities
(including the Debentures) under the Securities Act of 1933, as
amended (the "Securities Act") (of which an aggregate of
$265,000,000 of such debt securities remain unsold), and such
registration statement has become effective. The Company
qualifies for use of Form S-3 for the registration of the
Debentures. The prospectus forming a part of the registration
statement, at the time such registration statement (or the most
recent amendment thereto filed prior to the time of effectiveness
of this underwriting agreement (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 the Basic Prospectus shall have been amended, revised
or supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to debt
securities other than the Debentures) prior to the time of
effectiveness of the Underwriting Agreement, including any
preliminary prospectus supplement, and with respect to any
documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the time the registration statement became
effective and up to the time of effectiveness of this
Underwriting Agreement (but excluding documents incorporated
therein by reference relating solely to debt securities other
than the Debentures), which documents are deemed to be
incorporated by reference in the Basic Prospectus, the term
"Basic Prospectus" as used herein shall also mean such prospectus
as so amended, revised or supplemented. The 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
Debentures by a prospectus supplement (a "Prospectus Supplement")
to be filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424"), are
hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus (except any amendment
or supplement relating solely to debt securities other than the
Debentures), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document which 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 which is filed with the Commission after
the time of effectiveness of this Underwriting Agreement and is
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to debt securities
other than the Debentures) pursuant to Item 12 of Form S-3 shall
be deemed a supplement to the Prospectus.
(d) The Registration Statement, in the form in which
it became effective, and the Indenture, at such time, fully
complied, and the Prospectus, when filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 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, as amended
(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 by reference in the Prospectus pursuant to Item 12
of Form S-3, on the date first 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 are or will be deemed to
comply therewith. On the later of (i) the date the Registration
Statement was declared effective by the Commission under the
Securities Act or (ii) the date that the Company's most recent
Annual Report on Form 10-K was filed with the Commission under
the Exchange Act (the date described in either clause (i) or (ii)
is hereinafter referred to as the "Effective Date"), the
Registration Statement did not, and on the date that any post-
effective amendment to the Registration Statement became or
becomes effective (but excluding any post-effective amendment
relating solely to debt securities other than the Debentures),
the Registration Statement as amended by any such post-effective
amendment 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
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date, the Prospectus, as it may
then be amended or supplemented, will not include 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 are 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 required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they are 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
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 amended or supplemented, or to any
statements in or omissions from the statement of eligibility, as
it may be amended, under the Trust Indenture Act, of the Trustee
under the Indenture.
(e) The issuance and sale of the Debentures and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, 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, the Company has obtained all material licenses,
permits, and other governmental or regulatory authorizations
currently required for the conduct of its business, and is in all
material respects complying therewith, and the Company is not
aware of any fact that would lead it to believe that any material
license, permit or other governmental or regulatory authorization
would not remain in effect or be renewed in its ordinary course
of business.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Debentures as soon after the
effectiveness of the Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Debentures will be offered to the public at the initial
public offering price specified in the Prospectus Supplement plus
accrued interest thereon from October 1, 1995 to the Closing
Date.
SECTION 5. Time and Place of Closing. Delivery of the
Debentures and payment of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 10:00 A.M., New York time, on October 11, 1995, or at
such other time on the same or such other day as shall be agreed
upon by the Company and Bear, Xxxxxxx & Co. Inc., or as may be
established in accordance with Section 11 herein. The hour and
date of such delivery and payment are herein called the "Closing
Date".
The Debentures shall be delivered to the Underwriters
in book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the
Debentures shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Debentures, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Debentures 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
among the Underwriters and the Company, or at such other time
and/or date as may be agreed upon among 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 copy of the Registration Statement
relating to the Debentures as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Debentures, certified by an officer of the Company to be
in the form filed.
(b) The Company will deliver to you 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, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise Bear, Xxxxxxx
& Co. Inc. promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are required
by law to deliver a prospectus, 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 Debentures, 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 an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or 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 initial effective date of the
Registration Statement, 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 so as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 promulgated 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 otherwise cooperate in qualifying the
Debentures 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 expenses and taxes (except transfer taxes) in connection with
(i) the preparation and filing of the Registration Statement,
(ii) the printing, issuance and delivery of the Debentures and
the preparation, execution, printing and recordation of the
Indenture, (iii) legal fees and expenses relating to the
qualification of the Debentures under the blue-sky laws of
various jurisdictions, in an amount not to exceed $10,000, (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 and the
Prospectus and any amendment or supplement thereto, except as
otherwise provided in paragraph (d) of this Section 6, (v) fees
of the rating agencies in connection with the rating of the
Debentures, (vi) fees (if any) of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering, and (vii) the cost to the
Underwriters of providing immediately available funds on the
Closing Date as provided in Section 5 hereof. 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 (i) the reasonable fees and expenses of
Counsel for the Underwriters, whose fees and expenses the
Underwriters agree to pay in any other event, and (ii) reasonable
out-of-pocket expenses, in an amount not exceeding in the
aggregate $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
debentures without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date or (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
Debentures 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, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Company and the
Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company, to the effect that no
such stop order has been or is in effect and that no proceedings
for such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Debentures, an
order of the Commission under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), authorizing the
issuance and sale of the Debentures and the execution of the
Indenture on the terms set forth in, or contemplated by, this
Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from Xxxx Xxxxxx Child & Xxxxxxx, Professional
Association, Xxxx & Priest LLP and Friday, Xxxxxxxx & Xxxxx
opinions, dated the Closing Date, substantially in the forms set
forth in Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and you with
the approval of Counsel for the Underwriters, and (ii) if the
Prospectus shall be supplemented after being furnished to you for
use in offering the Debentures, 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 D hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Xxxxxxx L.L.P. (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 examined 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, 1994 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, or for
changes or decreases as set forth in such letter, identifying the
same and specifying the amount thereof; and (iv) stating that
they have compared specific dollar amounts, percentages of
revenues and earnings and other financial information pertaining
to the Company (x) set forth in the Prospectus, and (y) set forth
in documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act as specified in Exhibit E hereto, in
each case, to the extent that such amounts, numbers, percentages
and information may be derived from the general accounting
records of the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from
the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to the Underwriters with respect to certain financial
information contained in the Prospectus, as mutually agreed to by
the Underwriters and the Company.
(h) 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 (A) the
representations and warranties of the Company contained herein
are true and correct, (B) 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 (C) since the most recent date as of which
information is given in the Prospectus, as it may 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 be amended or
supplemented.
(i) The Underwriters shall have received duly executed
counterparts of the Indenture.
(j) 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.
(k) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company, or Entergy Corporation and its various direct and
indirect subsidiaries taken as a whole as it affects the Company,
which in the reasonable opinion of the Underwriters materially
impairs the investment quality of the Debentures.
(l) Between the date hereof and the Closing Date
neither Xxxxx'x Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of the Company's
outstanding debt securities in any respect.
(m) All legal matters in connection with the issuance
and sale of the Debentures shall be satisfactory in form and
substance to Counsel for the Underwriters.
(n) The Company will furnish the Underwriters with
such additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section
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 the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) At the Closing Date there shall be in full force
and effect an order of the Commission under the 1935 Act
authorizing the issuance and sale of the Debentures on the terms
set forth in or contemplated by this Underwriting Agreement, the
Indenture and the Prospectus.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to Bear, Xxxxxxx &
Co. Inc. Any such termination shall be without liability of any
party to the 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
necessary to make the statements therein not misleading, or upon
an 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, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, 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, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of, or
based upon, statements in or omissions from that part of the
Registration Statement which constitutes the statement of
eligibility under the Trust Indenture Act of the Trustee; 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 Debentures to
any person in respect of any Basic Prospectus or the Prospectus,
as supplemented or amended, furnished by any Underwriter to a
person to whom any of the Debentures 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 pursuant to Section
6(d) hereof, respectively, unless a copy of the Prospectus (in
the case of such a statement or omission made in the Basic
Prospectus) or such amendment or supplement (in the case of such
a statement or omission made in the Prospectus) (excluding,
however, any amendment or supplement to the Basic Prospectus
relating to any debt securities other than the Debentures 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.
(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, 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 necessary to make the
statements therein not misleading, or upon an 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, or transmitted for filing to, 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 required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by such Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424) 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 or such 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 Debentures 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 Debentures
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, 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 Debentures 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 either
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 Debentures which it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Debentures which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Debentures, the
other Underwriter shall be obligated to purchase the Debentures
which such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Debentures which 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
Debentures without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Debentures and the
aggregate principal amount of Debentures with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Debentures, the Company shall have the
right (a) to require the non-defaulting Underwriter to purchase
and pay for the respective principal amount of Debentures that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Debentures 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
Debentures that such non-defaulting Underwriter had 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 Debentures that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriter 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 Debentures, 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 Underwriter, 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
may be terminated at any time prior to the Closing Date by
written notice from Bear, Xxxxxxx & Co. Inc. if, prior to that
time, (i) trading in securities on the New York Stock Exchange
shall have been generally suspended, (ii) minimum or maximum
ranges for prices shall have been generally established on the
New York Stock Exchange by the New York Stock Exchange, the
Commission or other governmental authority, (iii) a general
banking moratorium shall have been declared by Federal or New
York State authorities, or (iv) there shall have occurred any
material outbreak or escalation of hostilities or other calamity
or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment
of Bear, Xxxxxxx & Co. Inc., impracticable to market the
Debentures. Any termination hereof, pursuant to this Section 12,
shall be without liability of either party to the other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL 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 Bear,
Xxxxxxx & Co. Inc.. 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 Debentures from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Bear, Xxxxxxx & Co. Inc. at the address set forth
at the beginning of this Underwriting Agreement (to the attention
of its General Counsel), if to the Company, shall be mailed or
delivered to it at 0000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx
00000, Attention: Secretary 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,
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
Accepted as of the date first above written:
BEAR, XXXXXXX & CO. INC.
SALOMON BROTHERS INC
By: BEAR, XXXXXXX & CO. INC.
By:
Name:
Title:
SCHEDULE I
System Energy Resources, Inc.
7.38% Debentures due October 1, 2000
Name Amount
Bear, Xxxxxxx & Co. Inc. $15,000,000
Salomon Brothers Inc $15,000,000
Total $30,000,000
EXHIBIT A
[Letterhead of Xxxx Xxxxxx Child & Xxxxxxx]
October __, 1995
Bear, Xxxxxxx & Co. Inc.
Salomon Brothers Inc
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Xxxx & Priest LLP, of New York, New
York, have acted as counsel for System Energy Resources, Inc.
(the "Company") in connection with the issuance and sale by it
pursuant to the Underwriting Agreement, effective October __,
1995 (the "Underwriting Agreement"), between the Company and you,
of $30,000,000 in aggregate principal amount of its %
Debentures due October 1, 2000 (the "Debentures"), issued
pursuant to a Trust Indenture dated as of September 1, 1995 (the
"Indenture") between the Company and Chemical Bank, as Trustee
(the "Trustee"). This opinion is rendered to you at the request
of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement; and (f) the proceedings before the
Commission under the 1935 Act relating to the issuance and sale
of the Debentures by the Company and the execution and delivery
by the Company of the Indenture and the Underwriting Agreement.
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. We
have not examined the Debentures, 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 Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas, has due corporate power and authority to conduct the
business which 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 States of Arkansas and Mississippi.
(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 enforceable against the
Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and has been
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.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of Debt
Securities" and "Description of the Debentures," respectively,
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting the enforcement of mortgagees' and
other creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate any provision of the Company's Amended and Restated
Articles of Incorporation or By-laws, as amended, (b) will not
violate or conflict with any provision 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 us (having made due inquiry with respect thereto) to
which the Company is a party or which purports to be binding upon
the Company or upon any of its respective assets, and (c) will
not violate any provision of any law or regulation applicable to
the Company or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality applicable
to the Company (except that various consents of, and filings
with, governmental authorities may be required to be obtained or
made, as the case may be, in connection or compliance with the
provisions of the securities or blue-sky laws of any
jurisdiction).
(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 Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act complied
as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, 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 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; the Registration Statement has become and on the date
hereof is effective under the Securities Act, and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures and the execution, delivery and performance by
the Company of the Indenture and the Underwriting Agreement; 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 which has been duly obtained or in connection or compliance
with the provisions of the securities or blue-sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Debentures 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 Debentures or under the Indenture and the
Underwriting Agreement.
(9) No recordings, registrations or filings of the
Indenture are required for the validity or enforcement thereof.
(10) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement and the Prospectus and which are not disclosed and
properly described therein as required are pending or, to our
knowledge, threatened; and we do not know of any contracts or
other documents of the Company of a character required to be
filed as exhibits to the Registration Statement which are not so
filed, or any contracts or other documents of the Company of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein as
required; the descriptions in the Registration Statement and
Prospectus of statutes, legal and government proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown. Except as disclosed in the
Prospectus, there is no action, suit, proceeding or investigation
pending against or affecting the Company or any of its assets the
result of which would, in our opinion, have a materially adverse
effect on the issuance and sale of the Debentures in accordance
with the Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the 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
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
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 Registration
Statement or the Prospectus, as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus under the
caption "Description of Debt Securities -- Book-Entry System -
Global Debt Securities."
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the Mississippi Bar
and do not hold ourselves out as experts on the laws of any other
state. We have examined the opinions of even date herewith
rendered to you by Xxxx & Priest LLP and Winthrop, Stimson,
Xxxxxx & Xxxxxxx, and we concur in the conclusions expressed
therein insofar as they involve questions of Mississippi law. As
to all matters of Arkansas and New York law, we have relied, in
the case of Arkansas law, upon the opinion of even date herewith
addressed to us of Friday, Xxxxxxxx & Xxxxx of Little Rock,
Arkansas, and, in the case of New York law, upon the opinion of
even date herewith addressed to you of Xxxx & Priest LLP.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that Xxxx
& Priest LLP and Winthrop, Stimson, Xxxxxx & Xxxxxxx may rely on
this opinion as to all matters of Mississippi law in rendering
their opinions required to be delivered under the Underwriting
Agreement.
Very truly yours,
XXXX XXXXXX CHILD & XXXXXXX
Professional Association
By:
EXHIBIT B
[Letterhead of Xxxx & Priest LLP]
October __, 1995
Bear, Xxxxxxx & Co. Inc.
Salomon Brothers Inc
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Xxxx Xxxxxx Child & Xxxxxxx,
Professional Association, of Jackson, Mississippi, have acted as
counsel for System Energy Resources, Inc. (the "Company") in
connection with the issuance and sale by it pursuant to the
Underwriting Agreement, effective October __, 1995 (the
"Underwriting Agreement"), between the Company and you, of
$30,000,000 in aggregate principal amount of its % Debentures
due October 1, 2000 (the "Debentures"), issued pursuant to a
Trust Indenture dated as of September 1, 1995 (the "Indenture")
between the Company and Chemical Bank, as Trustee (the
"Trustee"). This opinion is rendered to you at the request of
the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and By-Laws, each as amended; (b) the
Underwriting Agreement; (c) the Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Debentures by the
Company, the execution and delivery by the Company of the
Indenture and the Underwriting Agreement; and (f) the proceedings
before the Commission under the 1935 Act relating to the issuance
and sale of the Debentures by the Company, the execution and
delivery by the Company of the Indenture and the Underwriting
Agreement. 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. We have not examined the Debentures, 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, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights,
and has been 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 statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of Debt
Securities" and "Description of the Debentures," respectively,
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.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting the enforcement of mortgagees' and
other creditors' rights and general equitable principles
(regardless of whether such enforceability is 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 issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended and (b) will not violate any provision 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 us (having made due inquiry with
respect thereto) to which the Company is a part or which purports
to be binding upon the Company or upon any of its respective
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction).
(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 time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act complied
as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, 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 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; the Registration Statement has become and is on the
date hereof effective under the Securities Act and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of said
Securities Act.
(7) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement; 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 which has
been duly obtained or in connection or compliance with the
provisions of the securities or blue-sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Debentures 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 Debentures 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 and
completeness 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 (2) above. In connection
with 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
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
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 Registration
Statement or the Prospectus, as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus under the
caption "Description of Debt Securities -- Book-Entry System -
Global Debt Securities."
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. Accordingly, as to matters involving the laws of Arkansas
and Mississippi, we have relied upon the below-named opinions of
counsel to the extent that such opinions state an opinion with
regard to the matters covered by this opinion. As to matters of
Arkansas law relating to the Company, we have, with your consent,
relied upon an opinion of even date herewith addressed to us of
Messrs. Friday, Xxxxxxxx & Xxxxx of Little Rock, Arkansas. As to
matters of Mississippi law related to the Company, we have, with
your consent, relied upon the opinion of even date herewith of
Xxxx Xxxxxx Child & Xxxxxxx, Professional Association, which has
been delivered to you pursuant to the Underwriting Agreement. 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 hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that Xxxx
Xxxxxx Child & Xxxxxxx, Professional Association, may rely on
this opinion as to matters of New York law in rendering their
opinion related to the Company required to be delivered under the
Underwriting Agreement.
Very truly yours,
XXXX & PRIEST LLP
EXHIBIT C
[Letterhead of Friday, Xxxxxxxx & Xxxxx]
October __, 1995
XXXX & PRIEST LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXX XXXXXX CHILD & XXXXXXX,
Professional Association
Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc. (the "Company") in connection with the issuance
and sale by it, pursuant to the Underwriting Agreement, effective
October __, 1995 (the "Underwriting Agreement") between the
Company and the underwriter named therein of $30,000,000 in
aggregate principal amount of its % Debentures due October 1,
2000 (the "Debentures"), issued pursuant to a Trust Indenture
dated as of September 1, 1995 (the "Indenture") between the
Company and Chemical Bank, as Trustee (the "Trustee"). This
opinion is rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; and (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures and the execution and
delivery by the Company of the Indenture and the Underwriting
Agreement. 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. We have not examined the Debentures, 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 Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas and is duly qualified to conduct its business in such
State.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered and is a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting enforcement of mortgagees' and other
creditors' rights, and are entitled to the benefits provided by
the Indenture.
(5) No recordings, registrations or filings of the
Indenture are required for the validity or enforcement thereof.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, and (b) will not violate or conflict with any
provision of any law or regulation of the State of Arkansas or
any subdivision thereof applicable to the Company or, to the best
of our knowledge (having made due inquiry with respect thereto),
any provision of any order, writ, judgment or decree of any
governmental instrumentality of the State of Arkansas or any
subdivision thereof applicable to the Company.
(7) No approval, authorization, order, license,
permit, franchise or consent of or registration, declaration or
filing with any Arkansas governmental authority is required in
connection with the issuance and sale of the Debentures or the
execution, delivery and performance by the Company of the
Indenture and the Underwriting Agreement.
Since we have acted herein only as Arkansas counsel for
the Company, the opinions set forth herein relate only to matters
governed by the laws of the State of Arkansas. You may rely upon
this opinion in rendering your respective opinions required to be
delivered under the Underwriting Agreement, and the underwriters
to whom your respective opinions are addressed may rely upon this
opinion in connection with the Underwriting Agreement and the
transactions contemplated thereunder as though it were addressed
and delivered to such underwriters. This opinion may not be
relied upon in any other manner by any other person or for any
other purpose without our prior written consent except that
Winthrop, Stimson, Xxxxxx & Xxxxxxx may rely on this opinion as
to all matters of Arkansas law in rendering its opinion required
to be delivered under the Underwriting Agreement.
Very truly yours,
FRIDAY, XXXXXXXX & XXXXX
EXHIBIT D
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
October __, 1995
Bear, Xxxxxxx & Co. Inc.
Salomon Brothers Inc
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $30,000,000 in aggregate principal amount of the
% Debentures due October 1, 2000 (the "Debentures"), issued by
System Energy Resources, Inc. (the "Company") under a Trust
Indenture dated as of September 1, 1995 (the "Indenture") between
the Company and Chemical Bank, as Trustee (the "Trustee"),
pursuant to the agreement between you and the Company effective
October __, 1995 (the "Underwriting Agreement").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon opinions of even date herewith addressed to
you (or upon which it is stated that you may rely) of Friday,
Xxxxxxxx & Xxxxx and Xxxx Xxxxxx Child & Xxxxxxx, Professional
Association, as to all matters of Arkansas and Mississippi law,
respectively, related to this opinion. We have reviewed said
opinions and believe that they are satisfactory. We have also
reviewed the opinion of Xxxx & Priest LLP required by Section
7(d) of the Underwriting Agreement, and we believe said opinion
to be satisfactory.
In our capacity as your counsel, we have examined such
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 various questions of fact material to this
opinion, we have relied upon representations of the Company and
statements in the Registration Statement hereinafter mentioned.
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
correctness of all statements of fact contained in all such
original or copied documents. We have not examined the
Debentures except a specimen thereof, and we have relied upon a
certificate of the Trustee as to the due authentication and
delivery thereof. We have not examined into, and are expressing
no opinion or belief as to matters relating to, incorporation of
the Company. 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, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and general principles
of equity (regardless of whether such enforceability is
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 statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of Debt
Securities" and "Description of the Debentures," respectively,
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.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the parties thereto.
(5) An appropriate order has been entered by the
Commission under the 1935 Act granting the application, as
amended, with respect to the Debentures and to the best of our
knowledge such order is in full force and effect.
(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 time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, 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 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; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8 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 (2) hereof. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we had conferences with certain officers and
representatives of the Company and of its affiliates, with
counsel for the Company, with the independent certified public
accountants of the Company who examined the financial statements
incorporated by reference in the Registration Statement, and with
your representatives. Our examination of the Registration
Statement and the Prospectus, and our discussions in the above-
mentioned conferences, 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 first filed with,
or transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an 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
Registration Statement or Prospectus, as to the statements
contained in the Form T-1 filed as an exhibit to the Registration
Statement or as to the information contained in the Prospectus
under the caption "Description of Debt Securities -- Book-Entry
System - Global Debt Securities."
The opinion set forth above is solely for the benefit
of the addressees hereof 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 E
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS PURSUANT TO
SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT FOR INCLUSION IN
THE LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
FORM 10-Q FOR THE QUARTER
ENDED JUNE 30, 1995
MANAGEMENT'S FINANCIAL 46 The amount of additional first
DISCUSSION AND ANALYSIS -- mortgage bonds issuable by the
LIQUIDITY AND CAPITAL Company as of June 30, 1995
RESOURCES -- Entergy, based upon the most
AP&L, GSU, LP&L, MP&L, restrictive applicable tests
NOPSI and System Energy and assuming an annual
interest rate of 8%.
