EXECUTION COPY
Exhibit B(vi)
Entergy Gulf States, Inc.
$200,000,000
First Mortgage Bonds
Floating Rate Series due October 2, 2006
PURCHASE AGREEMENT
Dated: September 28, 2005
Table of Contents
Page
1.AUTHORIZATION AND DESCRIPTION OF BONDS. 1
0.XXXX AND PURCHASE OF BONDS. 2
3.CLOSING. 2
4.CONDITIONS TO CLOSING. 2
4.1 Representations and Warranties. 2
4.2 Performance. 2
4.3 Compliance Certificates. 3
4.4 Opinions of Counsel. 3
4.5 No Default under Mortgage. 3
4.6 [Intentionally omitted.] 3
4.7 [Intentionally omitted.] 3
4.8 Material Adverse Change. 3
4.9 Proceedings and Documents. 4
4.10 Public Utility Holding Company Act of 1935 Order. 4
5.REPRESENTATIONS AND WARRANTIES OF THE COMPANY. 4
5.1 Organization; Power and Authority. 4
5.2 Disclosure. 4
5.3 [Intentionally omitted]. 5
5.4 Compliance with Other Instruments. 5
5.5 Litigation. 5
5.6 Internal Controls and Disclosure Controls and Procedures.
5
5.7 Licenses, Permits, etc. 5
5.8 Compliance with ERISA. 5
5.9 Private Offering by the Company. 6
5.10 Use of Proceeds; Margin Regulations. 6
5.11 [Intentionally omitted.] 6
5.12 Status under Certain Statutes. 6
5.13 Foreign Asset Control Regulations. 6
5.14 1935 Act Order Representations. 6
6.REPRESENTATIONS OF THE PURCHASER. 7
6.1 Purchase for Investment. 7
6.2 Source of Funds. 7
7.COVENANTS. 9
8.PAYMENT ON BONDS. 11
9.EXPENSES. 12
9.1 Transaction Expenses. 12
9.2 Survival. 12
10.SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
ENTIRE AGREEMENT. 12
11.AMENDMENT AND WAIVER. 12
11.1 Requirements. 12
11.2 Solicitation of Holders of Bonds. 12
11.3 Binding Effect, etc. 13
12.NOTICES. 13
13.REPRODUCTION OF DOCUMENTS. 13
14.CONFIDENTIAL INFORMATION. 13
15.MISCELLANEOUS. 15
15.1 Successors and Assigns. 15
15.2 Severability. 15
15.3 Construction. 15
15.4 Counterparts. 15
15.5 Governing Law. 15
15.6 Specific Performance. 15
SCHEDULE A - INFORMATION RELATING TO PURCHASER
SCHEDULE B - DEFINED TERMS
SCHEDULE C - SUPPLEMENTAL DISCLOSURE
EXHIBIT A - FORM OF SUPPLEMENTAL INDENTURE RELATING TO THE
FIRST MORTGAGE BONDS, FLOATING RATE SERIES DUE
OCTOBER 2, 2006
EXHIBIT 4.4(a) - Form of Opinion of Xxxx X. Abuso, Esq.,
Senior Counsel-Corporate and Securities of Entergy
Services, Inc.
EXHIBIT 4.4(b) - Form of Opinion of Xxxxxx Xxxx & Priest
LLP
EXHIBIT 4.4(c) - Form of Opinion of Xxxxxx, Xxxx & Xxxxxx,
L.L.P.
EXHIBIT 4.4(d) - Form of Opinion of Pillsbury Xxxxxxxx
Xxxx Xxxxxxx LLP
Entergy Gulf States, Inc.
$200,000,000
First Mortgage Bonds
Floating Rate Series due October 2, 2006
Purchase Agreement
September 28, 0000
Xxxxxxxx Xxxxx Xxxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Entergy Gulf States, Inc., a Texas corporation (the
"Company"), agrees with you as follows:
1. AUTHORIZATION AND DESCRIPTION OF BONDS.
The Company has authorized the issue and sale of
$200,000,000 of its First Mortgage Bonds, Floating Rate Series
due October 2, 2006 (the "Bonds"). The Bonds shall be issued
under and pursuant to the Company's Indenture of Mortgage, dated
September 1, 1926, with JPMorgan Chase Bank, N.A. (formerly known
as JPMorgan Chase Bank), as trustee (the "Trustee"), as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, and as it will be further
amended and supplemented by the Seventy-second Supplemental
Indenture, dated as of September 1, 2005 (the "Supplemental
Indenture"). Said Indenture of Mortgage as so amended and
supplemented is hereinafter referred to as the "Mortgage." The
Supplemental Indenture shall be substantially in the form set
forth in Exhibit A hereto, with such changes therefrom, if any,
as may be approved by you and the Company.
Holders of the Bonds will be entitled to the benefits
of a Registration Rights Agreement (the "Registration Rights
Agreement") to be dated as of the Closing between the Company and
you, pursuant to which the Company will agree pursuant to the
terms thereof to file with the Securities and Exchange Commission
(the "Commission"), at the request of a holder, either (i) a
registration statement under the Securities Act registering an
issue of first mortgage bonds of the Company which are identical
in all material respects to the Bonds (except that such exchange
first mortgage bonds will not contain terms with respect to
transfer restrictions or additional interest) or (ii) a shelf
registration statement pursuant to Rule 415 under the Securities
Act pursuant to which resales of the Bonds will be permitted.
You may not, nor may any subsequent holder of the Bonds, sell,
transfer or assign the Bonds to any other Person without the
prior consent of the Company, such consent not to be unreasonably
withheld.
Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement.
2. SALE AND PURCHASE OF BONDS.
Subject to the terms and conditions of this Agreement,
the Company will (i) issue and sell to you and you will purchase
from the Company, at the Closing provided for in Section 3, the
Bonds at the purchase price of 100% of the principal amount
thereof (the "Purchase Price") and (ii) pay you a fee, in
consideration for your agreement to purchase the Bonds, in an
amount equal to .50% of the principal amount of the Bonds (the
"Fee").
3. CLOSING.
The sale and purchase of the Bonds shall occur at the
offices of Xxxxxx Xxxx & Priest LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx at 2:00 p.m., New York time, at a closing (the
"Closing") on September 28, 2005 or on such other Business Day
thereafter as may be agreed upon by the Company and you. At the
Closing, the Company will (i) deliver to you the Bonds in the
form of a single Bond dated the date of the Closing and
registered in your name (or in the name of your nominee set forth
in Schedule A) against delivery by you to the Company of the
Purchase Price by wire transfer of immediately available funds
for the account of the Company to account number 812342231 at
Hibernia National Bank, New Orleans, Louisiana, ABA # 000000000,
Acct. Name: EGSI - General Fund and (ii) pay you the Fee by wire
transfer of immediately available funds to the account designated
by you in writing to the Company. If at the Closing the Company
shall fail to tender such Bonds to you as provided above in this
Section 3, or any of the conditions specified in Section 4 shall
not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights you may have by
reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Bonds to be
sold to you at the Closing is subject to the fulfillment to your
satisfaction, prior to or at the Closing, of the following
conditions:
4.1 Representations and Warranties.
The representations and warranties of the Company in
this Agreement shall be correct when made and at the time of the
Closing.
4.2 Performance.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to
be performed or complied with by it prior to or at the Closing.
4.3 Compliance Certificates.
(a) Officer's Certificate.
The Company shall have delivered to you an Officer's
Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2, 4.5 and 4.8 have been
fulfilled.
(b) Secretary's Certificate.
The Company shall have delivered to you a certificate
certifying as to the resolutions attached thereto and other
corporate proceedings and matters relating to the authorization,
execution and delivery of the Bonds, the Mortgage, this Agreement
and the Registration Rights Agreement.
4.4 Opinions of Counsel.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from Xxxx
X. Abuso, Esq., Senior Counsel-Corporate and Securities of
Entergy Services, Inc., and Xxxxxx Xxxx & Priest LLP, counsel for
the Company, covering the matters set forth in Exhibits 4.4(a)
and 4.4(b), respectively (it being understood that Ms. Abuso may
rely on an opinion of Xxxxxx, Xxxx & Xxxxxx, L.L.P., which
opinion shall cover the matters set forth in Exhibit 4.4(c)
hereto, as to matters in her opinion relating to Texas law), and
covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request
(and the Company hereby instructs its counsel to deliver such
opinions to you) and (b) from Pillsbury Xxxxxxxx Xxxx Xxxxxxx
LLP, your special counsel in connection with such transactions,
covering the matters set forth in Exhibit 4.4(d) and covering
such other matters incident to such transactions as you may
reasonably request.
4.5 No Default under Mortgage.
At the Closing, no Default (or an event which, with the
giving of notice or the passage of time or both, would constitute
a Default) under the Mortgage shall have occurred and be
continuing.
4.6 [Intentionally omitted.]
4.7 [Intentionally omitted.]
4.8 Material Adverse Change.
Since the most recent date as of which information is
given in the Disclosure Document, there has not been a 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 Disclosure Document.
4.9 Proceedings and Documents.
All corporate and other proceedings in connection with
the transactions contemplated by this Agreement and all documents
and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your
special counsel shall have received all such counterpart
originals or certified or other copies of such documents as you
or they may reasonably request, including the Supplemental
Indenture and the Registration Rights Agreement.
4.10 Public Utility Holding Company Act of 1935 Order.
At the Closing, there shall have been issued and there
shall be in full force and effect, to the extent legally required
for the issuance and sale of the Bonds, an order of the
Commission under the Public Utility Holding Company Act of 1935,
as amended (the "Holding Company Act"), authorizing the issuance
and sale of the Bonds on the terms set forth in, or contemplated
by, this Agreement (collectively, the "1935 Act Order").
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1 Organization; Power and Authority.
The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Texas
and has the necessary corporate power and authority to conduct
the business that it is described in the Disclosure Document as
conducting and to own and operate the properties owned and
operated by it in such business and is in good standing and duly
qualified to conduct such business as a foreign corporation in
the State of Louisiana.
5.2 Disclosure.
(i) The Company's Annual Report on Form 10-K for the
year ended December 31, 2004 filed with the Commission under the
Exchange Act, (ii) the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 2005 filed with the Commission
under the Exchange Act, (iii) the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2005, filed with the
Commission under the Exchange Act, (iv) the Company's Current
Report[s] on Form 8-K filed with the Commission on September 20,
2005 and September 28, 2005 and (v) Schedule C to this Agreement
(collectively, the "Disclosure Document"), fairly describe, in
all material respects, the general nature of the business and
principal properties of the Company. There has been no change in
any matter disclosed in the Disclosure Document that could
reasonably be expected to result in a Material Adverse Effect.
5.3 [Intentionally omitted].
5.4 Compliance with Other Instruments.
The issuance and sale of the Bonds and the fulfillment
of the terms of this Agreement and the Registration Rights
Agreement will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Mortgage or any
indenture or other agreement or instrument to which the Company
is now a party.
5.5 Litigation.
Other than as described in the Disclosure Document,
there are no legal or governmental proceedings pending to which
the Company is a party or of which any property of the Company is
the subject which, if determined adversely to the Company, would
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect. To the knowledge of the Company, no
such proceedings are threatened or contemplated by Governmental
Authorities or threatened by others.
5.6 Internal Controls and Disclosure Controls and Procedures.
The Company maintains (x) systems of internal controls
and processes sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is
permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences; and (y) disclosure controls and procedures (as
defined in Rule 13a-15(e) under the Exchange Act).
5.7 Licenses, Permits, etc.
Except as set forth or contemplated in the Disclosure
Document, the Company possesses adequate franchises, licenses,
permits, and other rights to conduct its businesses and
operations as now conducted, without any known conflicts with the
rights of others that could have a Material Adverse Effect.
5.8 Compliance with ERISA.
The execution and delivery of this Agreement and the
issuance and sale of the Bonds hereunder will not involve any
nonexempt transaction that is subject to the prohibitions of
section 406 of ERISA or in connection with which a tax would be
imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this
Section 5.8 is made in reliance upon and subject to the accuracy
of your representation in Section 6.2 and the completeness of
your disclosures pursuant to Section 6.2 as to the sources of the
funds used to pay the purchase price of the Bonds to be purchased
by you.
5.9 Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has
offered the Bonds or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person
other than you. Neither the Company nor anyone acting on its
behalf has taken, or will take, any action that would subject the
issuance or sale of the Bonds to the registration requirements of
Section 5 of the Securities Act.
5.10 Use of Proceeds; Margin Regulations.
The Company will use the proceeds of the sale of the
Bonds for general corporate purposes. No part of the proceeds
from the sale of the Bonds hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 221), or for the
purpose of buying or carrying or trading in any securities under
such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR
220). As used in this Section, the terms "margin stock" and
"purpose of buying or carrying" shall have the meanings assigned
to them in said Regulation U.
5.11 [Intentionally omitted.]
5.12 Status under Certain Statutes.
The Company is not, and, after giving effect to the
offering and sale of the Bonds, the Company will not be, an
"investment company," or an entity "controlled" by an investment
company, as such terms are defined in the Investment Company Act
of 1940, as amended. The Company is subject to regulation under
the Holding Company Act.
5.13 Foreign Asset Control Regulations.
Neither the sale of the Bonds by the Company hereunder
nor the Company's use of the proceeds thereof will violate (i)
the Trading with the Enemy Act, as amended, (ii) any of the
foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto or (iii)
Executive Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by
the President of the United States (Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit or Support Terrorism).
5.14 1935 Act Order Representations.
(a) As of the date of the financial statements filed with the
Company's most recent Quarterly Report on Form 10-Q or Annual
Report on Form 10-K, each of the Company and Entergy Corporation
("Entergy") had common equity of at least thirty percent (30%) of
"total capitalization" (within the meaning of the 1935 Act
Order).
(b) All outstanding securities of each of the Company and
Entergy (except for preferred stock or preferred securities of
the Company) that are rated are "rated `investment grade'" by any
nationally recognized statistical rating organization as that
term is used in paragraphs (c)(2)(vi)(E), (F) and (H) of Rule
15c3-1 under the Exchange Act (within the meaning of the 1935 Act
Order).
6. REPRESENTATIONS OF THE PURCHASER.
6.1 Purchase for Investment.
You represent that you are purchasing the Bonds for
your own account and not with a view to the distribution thereof,
provided that the disposition of your property shall at all times
be within your control. You understand that the Bonds have not
been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or
if an exemption from registration is available, except under
circumstances where neither such registration nor such an
exemption is required by law.
6.2 Source of Funds.
(a) You represent that the source of funds (a "Source") to be
used by you to pay the purchase price of the Bonds to be
purchased by you hereunder does not include assets of any
employee benefit plan, other than a plan exempt from the coverage
of ERISA and which is not subject to tax under section 4975 of
the Code.
(b) Subsequent holders of the Bonds will be required to
represent that at least one of the following statements is, and
at all times while it holds a Bond remain, an accurate
representation as to each Source to be used by it to pay the
purchase price of the Bonds to be purchased by it hereunder:
(i) the Source is an "insurance company general account" (as the
term is defined in Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995)) in respect of which the reserves and
liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of
Insurance Commissioners (the "NAIC Annual Statement")) for the
general account contract(s) held by or on behalf of any employee
benefit plan together with the amount of the reserves and
liabilities for the general account contract(s) held by or on
behalf of any other employee benefit plans maintained by the same
employer (or affiliate thereof as defined in PTE 95-60) or by the
same employee organization in the general account do not exceed
10% of the total reserves and liabilities of the general account
(exclusive of separate account liabilities) plus surplus as set
forth in the NAIC Annual Statement filed with your state of
domicile; or
(ii) the Source is a separate account that is maintained solely
in connection with your fixed contractual obligations under which
the amounts payable, or credited, to any employee benefit plan
(or its related trust) that has any interest in such separate
account (or to any participant or beneficiary of such plan
(including any annuitant)) are not affected in any manner by the
investment performance of the separate account; or
(iii) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January
29, 1990), or (ii) a bank collective investment fund, within the
meaning of PTE 91-38 (issued July 12, 1991) and, except as
disclosed by you to the Company in writing pursuant to this
paragraph (c), no employee benefit plan or group of plans
maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such
pooled separate account or collective investment fund; or
(iv) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the
meaning of Part V of the QPAM Exemption), no employee benefit
plan's assets that are included in such investment fund, when
combined with the assets of all other employee benefit plans
established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by
such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption
are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in
the Company and (i) the identity of such QPAM and (ii) the names
of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing
pursuant to this paragraph (d); or
(v) the Source constitutes assets of a "plan(s)" (within the
meaning of Section IV of PTE 96-23 (the "INHAM Exemption"))
managed by an "in-house asset manager" or "INHAM" (within the
meaning of Part IV of the INHAM Exemption), the conditions of
Part I(a), (g) and (h) of the INHAM Exemption are satisfied,
neither the INHAM nor a person controlling or controlled by the
INHAM (applying the definition of "control" in Section IV(h) of
the INHAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such INHAM and (ii) the name(s) of the
employee benefit plan(s) whose assets constitute the Source have
been disclosed to the Company in writing pursuant to this
paragraph (e); or
(vi) the Source is a governmental plan; or
(vii) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company
in writing pursuant to this paragraph (g); or
(viii) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA
and which is not subject to tax under section 4975 of the Code.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account"
shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
7. COVENANTS.
The Company covenants and agrees with you that:
(a) As long as any of the Bonds are outstanding, the Company
shall deliver to you:
(i) Quarterly Statements -- within 60 days after the end
of each quarterly fiscal period in each fiscal year of the Company
(other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(A) a consolidated balance sheet of the Company as at the end of
such quarter, and
(B) consolidated statements of income, retained earnings and
comprehensive income, and cash flows of the Company, for such
quarter and (in the case of the second and third quarters) for
the portion of the fiscal year ending with such quarter, setting
forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified by a
Senior Financial Officer as fairly presenting, in all material
respects, the financial position of the Company and its results
of operations and cash flows, subject to changes resulting from
year-end adjustments, provided that delivery within the time
period specified above of copies of the Company's Quarterly
Report on Form 10-Q prepared in compliance with the requirements
therefor and filed with the Commission shall be deemed to satisfy
the requirements of this Section 7(a)(i);
(ii) Annual Statements
-- within 120 days after the end of each fiscal year of
the Company, duplicate copies of,
(A) a consolidated balance sheet of the Company, as at the end
of such year, and
(B) consolidated statements of income, retained earnings and
comprehensive income, and cash flows, for such year,
setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail,
prepared in accordance with GAAP, and accompanied by an
opinion thereon of independent registered public accountants
of recognized national standing, which opinion shall state
that such financial statements present fairly, in all
material respects, the financial position of the Company and
its results of operations and cash flows and have been
prepared in conformity with GAAP, and that the examination
of such accountants in connection with such financial
statements has been made in accordance with generally
accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances,
provided that the delivery within the time period specified
above of the Company's Annual Report on Form 10-K for such
fiscal year prepared in accordance with the requirements
therefor and filed with the Commission, together with the
accountant's opinion described above, shall be deemed to
satisfy the requirements of this Section 7(a)(ii);
(iii) Commission and Other Reports
-- promptly upon their becoming available, except to
the extent provided under Section 7(a)(i) or 7(a)(ii), one copy
of (i) each financial statement, report, notice or proxy
statement sent by the Company to public securities holders
generally, (ii) each regular, current or periodic report, each
registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments
thereto filed by the Company with the Commission and of all press
releases and other statements made available generally by the
Company or to the public concerning developments that are
Material,. and (iii) each statement, report, notice or filing
made with the Commission under the Holding Company Act; and
(iv) ERISA Matters
-- promptly, and in any event within ten days (thirty
days with respect to clause (A) below) after a Responsible
Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the
Company or an ERISA Affiliate proposes to take with respect
thereto:
(A) with respect to any Plan, any reportable event, as defined
in section 4043(b) of ERISA and the regulations thereunder, for
which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(B) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the
Company or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan; or
(C) any event, transaction or condition that could result in the
incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA (other than claims for
benefits under any Plan) or the penalty or excise tax provisions
of the Code relating to employee benefit plans, or in the
imposition of any lien on any of the rights, properties or assets
of the Company or any ERISA Affiliate pursuant to Title I or IV
of ERISA or such penalty or excise tax provisions, if such
liability or lien, taken together with any other such liabilities
or liens then existing, could reasonably be expected to have a
Material Adverse Effect.
(v) Notices
(A) as soon as possible and in any event within five days after
the Company receives notice of the commencement of any litigation
against, or any arbitration, administrative, governmental or
regulatory proceeding involving, the Company, that, if adversely
determined, could reasonably be expected to have a Material
Adverse Effect, notice of such litigation describing in
reasonable detail the facts and circumstances concerning such
litigation and the Company's proposed actions in connection
therewith;
(B) promptly and in any event within five Business Days after
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings
Services has lowered its rating of any of the Company's
outstanding securities in any respect, notice of such downgrade;
or
(C) such other information respecting the condition or
operations, financial or otherwise, of the Company as you may
from time to time reasonably request.
(b) The Company will use its best efforts to effect a
refinancing of the Bonds at the earliest practicable time,
including obtaining all necessary regulatory, corporate and other
approvals (including regulatory approval to refinance the Bonds
with secured indebtedness issued under a credit facility).
(c) The Company will use the net proceeds from the issuance and
sale of any indebtedness, preferred stock or preferred securities
issued by the Company or its subsidiaries after the Closing to
promptly redeem the Bonds pursuant to their terms.
(d) The Company will use its best efforts, at your request, to
assist you in syndicating the Bonds.
(e) As soon as practicable after the Closing, the Company will
make all recordings, registrations and filings necessary to
perfect and preserve the lien of the Mortgage and the rights
under the Supplemental Indenture, and the Company will use its
best efforts to cause to be furnished to you a supplemental
opinion of counsel for the Company, addressed to you, stating
that all such recordings, registrations and filings have been
made.
(f) The Company will keep proper books of record and account,
all in accordance with generally accepted accounting principles
and will, from time to time upon reasonable notice, permit or
arrange for you and your agents and representatives to inspect
the records and books of account of the Company during regular
business hours.
(g) Upon your request, the Company will use its best efforts to
obtain a private placement number issued by Standard & Poor's
CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance
Commissioners) at the earliest practicable time.
8. PAYMENT ON BONDS.
The Company shall provide the Trustee, as initial
security registrar and paying agent for the Bonds, with the
information relating to you set forth in Schedule A and shall
cause the Trustee, as such security registrar and paying agent,
to make payments of principal of and interest on the Bonds by the
method and at the address specified for such purpose below your
name in Schedule A (as it may be amended, supplemented or
replaced from time to time), in each case consistent with the
terms of the Mortgage.
9. EXPENSES.
9.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses
(including reasonable attorneys' fees of the special counsel
referred to in Section 4.4 and, if reasonably required, local or
other counsel) incurred by you in connection with such
transactions.
9.2 Survival.
The obligations of the Company under this Section 9
will survive the payment or transfer of any Bond, the
enforcement, amendment or waiver of any provision of this
Agreement, the Registration Rights Agreement, the Mortgage or the
Bonds, and the termination of this Agreement, the Registration
Rights Agreement or the discharge of the Mortgage.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
All representations and warranties contained herein
shall survive the execution and delivery of this Agreement and
the Bonds, the purchase or transfer by you of any Bond or portion
thereof or interest therein and the payment of any Bond, and may
be relied upon by any subsequent holder of a Bond, regardless of
any investigation made at any time by or on behalf of you or any
other holder of a Bond. All statements contained in any
certificate or other instrument delivered by or on behalf of the
Company pursuant to this Agreement shall be deemed
representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement,
the Registration Rights Agreement, the Mortgage and the Bonds
embody the entire agreement and understanding between you and the
Company and supersede all prior agreements and understandings
relating to the subject matter hereof.
11. AMENDMENT AND WAIVER.
11.1 Requirements.
This Agreement may be amended, and the observance of
any term hereof may be waived (either retroactively or
prospectively) with (and only with) the written consent of the
Company and you.
11.2 Solicitation of Holders of Bonds.
The Company will provide you with sufficient
information, sufficiently far in advance of the date a decision
is required, to enable you to make an informed and considered
decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof. The Company
will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions
of this Section 11 to you promptly.
11.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in
this Section 11 will not extend to or affect any obligation,
covenant or agreement not expressly amended or waived or impair
any right consequent thereon. No course of dealing between the
Company and you nor any delay in exercising any rights hereunder
or under the Bonds shall operate as a waiver by you of any of
your rights. As used herein, the term "this Agreement" and
references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
12. NOTICES.
All notices and communications provided for hereunder
shall be in writing and sent (a) by telecopy if the sender on the
same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by
registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery
service (with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in
writing, or
(ii) if to the Company, to it at 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxxx 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, or at such other address as the Company shall have
specified to you in writing. Notices under this Section 12
will be deemed given only when actually received.
13. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and
modifications that may hereafter be executed, (b) documents
received by you at the Closing (except the Bonds themselves), and
(c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by
you by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and you may
destroy any original document so reproduced. The Company agrees
and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not
such reproduction was made by you in the regular course of
business) and any enlargement, facsimile or further reproduction
of such reproduction shall likewise be admissible in evidence.
This Section 13 shall not prohibit the Company or you from
contesting any such reproduction to the same extent that it could
contest the original, or from introducing evidence to demonstrate
the inaccuracy of any such reproduction.
14. CONFIDENTIAL INFORMATION.
For the purposes of this Section 14, "Confidential
Information" means information delivered to you by or on behalf
of the Company in connection with the transactions contemplated
by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise
adequately identified when received by you as being confidential
information of the Company, provided that such term does not
include information that (a) was publicly known or otherwise
known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by you or any person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure
by the Company or (d) constitutes financial statements delivered
to you under Section 7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in good
faith to protect confidential information of third parties
delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers,
employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the
investment represented by your Bonds), (ii) your financial
advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in
accordance with the terms of this Section 14, (iii) any
Institutional Investor to which you sell or offer to sell such
Bond or any part thereof or any participation therein (if such
Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this
Section 14, (iv) any Person from which you offer to purchase any
security of the Company (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound
by the provisions of this Section 14), (vi) any federal or state
regulatory authority having jurisdiction over you if supported by
an opinion of your counsel (which opinion need not be in writing
and shall not be reported, delivered or otherwise communicated to
the Company), including counsel that is your employee or an
employee of an affiliate of yours, (vi) the National Association
of Insurance Commissioners or any similar organization if
supported by an opinion of your counsel (which opinion need not
be in writing and shall not be reported, delivered or otherwise
communicated to the Company), including counsel that is your
employee or an employee of an affiliate of yours, or any
nationally recognized rating agency that requires access to
information about your investment portfolio or (vii) any other
Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule,
regulation or order applicable to you, (x) in response to any
subpoena or other legal process, (y) in connection with any
litigation to which you are a party or (z) if a breach of this
Agreement or a Default has occurred and is continuing, to the
extent you may reasonably determine such delivery and disclosure
to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under the Bonds, the
Mortgage, the Registration Rights Agreement and this Agreement.
Each holder of a Bond, by its acceptance of a Bond, will be
deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 14 as though it were a party to this
Agreement. On reasonable request by the Company in connection
with the delivery to any holder of a Bond of information required
to be delivered to such holder under this Agreement or requested
by such holder (other than you or your nominee), such holder will
enter into an agreement with the Company embodying the provisions
of this Section 14. Notwithstanding the foregoing, you (and each
of your employees, representatives, or other agents) may disclose
to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the transaction contemplated
hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to you relating to such tax
treatment and tax structure (redacted if necessary to delete any
information not related to tax treatment or tax structure).
15. MISCELLANEOUS.
15.1 Successors and Assigns.
All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and
inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Bond)
whether so expressed or not, including, without limitation, the
provisions of Section 8. Any transferee, by its acceptance of a
Bond registered in its name (or the name of its nominee) shall be
deemed to have made the representation set forth in Section 6.2.
The Company shall give to any holder of a Bond promptly upon
request therefor, a complete and correct copy of the names and
addresses of all registered holders of Bonds.
15.2 Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not
invalidate or render unenforceable such provision in any other
jurisdiction.
15.3 Construction.
Each covenant contained herein shall be construed
(absent express provision to the contrary) as being independent
of each other covenant contained herein, so that compliance with
any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be
taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is
taken directly or indirectly by such Person.
15.4 Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
15.5 Governing Law.
This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed
by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
15.6 Specific Performance.
Without limiting the remedies available to you, the
Company acknowledges that any failure by the Company to comply
with its obligations under Sections 7(b) and 7(c) of this
Agreement may result in material irreparable injury to you for
which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that,
in the event of any such failure, you may obtain such relief as
may be required to specifically enforce the Company's obligations
under Sections 7(b) and 7(c) of this Agreement.
* * * * *
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
Entergy Gulf States, Inc.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Assistant Treasurer
The foregoing is hereby
agreed to as of the
date thereof.
Citicorp North America, Inc.
By: ________________________
Name: J. Xxxxxxxx XxXxx
Title: Managing Director
SCHEDULE A
INFORMATION RELATING TO PURCHASER
Principal Amount of
Name and Address of Purchaser Bonds to be
Purchased
Bonds to be registered as: Citicorp North $200,000,000
America, Inc.
(1) All payments by wire transfer to:
Citibank N.A.
ABA#000000000
Global Power
A/C#39087254
Ref: Entergy
(2) All notices and other communications:
Citicorp North America, Inc.
0 Xxxx'x Xxx
Xxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
T: (000) 000-0000
F: (000) 000-0000
(3) Delivery of Bonds:
Citicorp North America, Inc.
c/o Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective
meanings set forth below, set forth in the Mortgage or set forth
in the Section hereof following such term:
"1935 Act Order" is defined in Section 4.10.
"Affiliate" has the meaning set forth in the Mortgage.
"Bonds" is defined in Section 1.
"Business Day" has the meaning set forth in the
Mortgage.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
"Commission" is defined in Section 1.
"Company" means Entergy Gulf States, Inc., a Texas
corporation.
"Confidential Information" is defined in Section 14.
"Default" has the meaning set forth in the Mortgage.
"Disclosure Document" is defined in Section 5.2.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is treated as a single employer
together with the Company under sections 414 (b), (c) or (m) of
the Code.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Fee" is defined in Section 2.
"GAAP" means generally accepted accounting principles
as in effect from time to time in the United States of America,
consistently applied.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any
State or other political subdivision thereof, or
(ii) any jurisdiction in which the Company
conducts all or any part of its business, or which
asserts jurisdiction over any properties of the
Company, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
"holder" means, with respect to any Bond, the Person in
whose name such Bond is registered in the register maintained by
the Company pursuant to Section 3.09 of the Mortgage.
"Holding Company Act" is defined in Section 4.10.
"Mortgage" is defined in Section 1.
"INHAM Exemption" is defined in Section 6.2.
"Institutional Investor" means (a) Citicorp North
America, Inc. and (b) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer,
or any other similar financial institution or entity, regardless
of legal form.
"Material" means material in relation to the business,
property or financial condition of the Company.
"Material Adverse Effect" means a material adverse
effect on (a) the business, property or financial condition of
the Company, or (b) the ability of the Company to perform its
obligations under this Agreement, the Registration Rights
Agreement, the Mortgage and the Bonds, or (c) the validity or
enforceability of this Agreement, the Registration Rights
Agreement, the Mortgage or the Bonds.
"Multiemployer Plan" means any Plan that is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"NAIC Annual Statement" is defined in Section 6.2.
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such
certificate.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Person" has the meaning set forth in the Mortgage.
"Plan" means an "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five
years, has been established or maintained, or to which
contributions are or, within the preceding five years, have been
made or required to be made, by the Company or any ERISA
Affiliate.
"Property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, xxxxxx or inchoate.
"PTE" is defined in Section 6.2(a).
"Purchase Price" is defined in Section 2.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"Registration Rights Agreement" is defined in Section
1.
"Responsible Officer" means any Senior Financial
Officer and any other officer of the Company with responsibility
for the administration of the relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or comptroller
of the Company.
"Source" is defined in Section 6.2.
"Supplemental Indenture" is defined in Section 1.
"Trustee" is defined in Section 1.
SCHEDULE B
SUPPLEMENTAL DISCLOSURE
Initial indications are that the costs that will be incurred by
Entergy Gulf States as a result of Hurricane Xxxx could be
approximately $500 million.
EXHIBIT 4.4(a)
[Letterhead of Entergy Services, Inc.]
September 28, 0000
Xxxxxxxx Xxxxx Xxxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I, together with Xxxxxx Xxxx & Priest LLP, of New York, New York,
and Xxxxxx, Xxxx & Xxxxxx, L.L.P., of Beaumont, Texas, have acted
as counsel for Entergy Gulf States, Inc., a Texas corporation
(the "Company"), in connection with the issuance and sale to you
pursuant to a Purchase Agreement, dated September 28, 2005 (the
"Purchase Agreement"), between the Company and you, of
$200,000,000 of its First Mortgage Bonds, Floating Rate Series
due October 2, 2006 (the "Bonds"), issued pursuant to the
Company's Indenture of Mortgage, dated September 1, 1926, with
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), as trustee (the "Trustee"), as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Seventy-second Supplemental Indenture, dated
as of September 1, 2005 (the "Supplemental Indenture") (the
Indenture of Mortgage as so amended and supplemented being
hereinafter referred to as the "Mortgage"). This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Purchase Agreement.
In my capacity as such counsel, I have either participated in the
preparation of or have examined and am familiar with: (a) the
Company's Restated Articles of Incorporation and the Company's By-
laws; (b) the Purchase Agreement; (c) the Mortgage; (d) the
Registration Rights Agreement; (e) the records of various
corporate proceedings relating to the authorization, issuance and
sale of the Bonds by the Company and the execution and delivery
by the Company of the Supplemental Indenture, the Purchase
Agreement and the Registration Rights Agreement; and (f) the
proceedings before and the order entered by the Commission under
the Holding Company Act relating to the issuance and sale of the
Bonds by the Company. I have also examined or caused to be
examined such other documents and have satisfied myself as to
such other matters as I have deemed necessary in order to render
this opinion. I have not examined the Bonds, except a specimen
thereof, and I have relied upon a certificate of the Trustee as
to the authentication and delivery thereof.
In my examination, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as
originals, the legal capacity of natural persons, the conformity
with the originals of all documents submitted to me as copies and
the authenticity of the originals of such latter documents. In
making my examination of documents and instruments executed or to
be executed by persons other than the Company, I have assumed
that each such other person had the requisite power and authority
to enter into and perform fully its obligations thereunder, the
due authorization by each such other person for the execution,
delivery and performance thereof by such person, and the due
execution and delivery by or on behalf of such person of each
such document and instrument. In the case of any such other
person that is not a natural person, I have also assumed, insofar
as 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 Purchase Agreement and the Mortgage and
certificates delivered at the closing of the sale of the Bonds)
and appropriate public officials without independent verification
of such matters except as otherwise described herein.
Whenever my opinions herein with respect to the existence or
absence of facts are stated to be to my knowledge or awareness, I
intend to signify that no information has come to my attention or
the attention of any other attorneys acting for or on behalf of
the Company or any of its affiliates that have participated in
the negotiation of the transactions contemplated by the Purchase
Agreement, the Mortgage and the Registration Rights Agreement 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.
My opinion in paragraph (1) below, insofar as it relates to the
good standing of the Company under Louisiana and Texas law, is
given exclusively in reliance upon a certification of the
Secretary of State of Louisiana and a certification of the
Secretary of State of Texas, respectively, upon which I believe I
am justified in relying. Copies of such certifications have been
provided to you.
In rendering the opinion set forth in paragraph (2) below, I have
relied upon reports and/or opinions by counsel who historically
acted on behalf of the Company in real estate transactions and
transactions involving the Mortgage and in whom I have
confidence, including Xxxxxx, Xxxx & Xxxxxx, L.L.P., Texas
counsel for the Company, and information from officers of the
Company responsible for the acquisition of real property and/or
maintenance of records with respect thereto, which I believe to
be satisfactory in form and scope and which I have no reason to
believe are inaccurate in any material respect. I have not, for
purposes of rendering such opinion, conducted an independent
examination or investigation of official title records (or
abstracts thereof) with respect to property (i) acquired by the
Company prior to the date of the most recent report and/or
opinions of counsel, (ii) as to which title insurance has been
obtained or (iii) the aggregate purchase price of which was not
material.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, I am of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Texas, has due corporate power and authority to
conduct the business that it is described as conducting in
the Disclosure Document and to own and operate the
properties owned and operated by it in such business and is
in good standing and duly qualified to conduct such business
as a foreign corporation in the State of Louisiana.
(2) The Company has good and sufficient title to the
properties described as owned by it in and as subject to the
lien of the Mortgage (except properties excepted from and
those released under the terms of the Mortgage), subject
only to Permitted Encumbrances as defined in the Mortgage
and to minor defects and encumbrances customarily found in
properties of like size and character that do not materially
impair the use of such properties by the Company in the
conduct of its electric and gas utility business. The
description of such properties set forth in the Mortgage is
adequate to constitute the Mortgage as a lien thereon; and
subject to paragraph (3) hereof, the Mortgage, subject only
to such minor defects and Permitted Encumbrances,
constitutes a valid, direct and first mortgage lien upon
said properties, which include substantially all of the
permanent physical properties and franchises of the Company
(other than those expressly excepted in the Mortgage). All
permanent physical properties and franchises (other than
those expressly excepted in the Mortgage) acquired by the
Company after the date of the Supplemental Indenture will,
upon such acquisition, become subject to the lien of the
Mortgage, subject, however, to such Permitted Encumbrances
and to liens, if any, existing or placed thereon at the time
of the acquisition thereof by the Company and except as may
be limited by bankruptcy law.
(3) It will be necessary to record the Supplemental
Indenture in the land title records in each Parish in
Louisiana in which is located tangible immovable property of
the Company that is subjected to the lien of the Mortgage by
the granting clauses of the Mortgage (including the granting
clauses of the Supplemental Indenture), in order that it
become enforceable against third parties. Upon such
recordation, the Mortgage (including the granting clauses of
the Supplemental Indenture) will be continued and be
effective, under Section 12:702 of the Louisiana Revised
Statutes, as to after-acquired and/or future property of the
Company to the extent set forth therein (which property may
be described in general terms) until six (6) years after the
maturity date of the last maturing Bonds issued under the
Mortgage. No further recordation or filing in Louisiana is
necessary to effect or preserve the lien of the Mortgage for
the benefit of the holders of the Bonds or to make such lien
effective as to and enforceable against third parties.
(4) It will be necessary to deposit the Supplemental
Indenture in the office of the Secretary of State of Texas
in accordance with Section 35.02 of the Texas Business and
Commerce Code, as amended. Upon the deposit of the
Supplemental Indenture as aforesaid, the lien granted
thereby shall be perfected as to property located in Texas,
and the perfection and notice provided by such filing shall
continue in effect until terminated or released as to
specific property by the filing of a termination statement
or release signed by the secured party. No renewal,
refiling or continuation of such filing is required, and no
further or other recordation or filing under Texas law is
requisite to preserve or protect the lien of the Mortgage
for the benefit of the holders of the Bonds or to make such
lien effective as to and enforceable against third parties.
(5) All permanent physical properties and franchises
of the Company (other than those expressly excepted in the
Mortgage) presently owned by the Company are subject to the
lien of the Mortgage, subject to minor defects and Permitted
Encumbrances of the character referred to in paragraph (2)
hereof.
(6) The Mortgage has been duly authorized by all
necessary corporate action on the part of the Company, has
been duly executed and delivered by the Company, is a legal,
valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
may be limited by (i) the laws of the States of Texas and
Louisiana, where the property covered thereby is located,
affecting the remedies for the enforcement of the security
provided for therein, which laws do not, in my opinion, make
inadequate the remedies necessary for the realization of the
benefits of such security, (ii) applicable bankruptcy,
insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and general
equitable principles (whether considered in a proceeding in
equity or at law), and (iii) concepts of materiality,
reasonableness, good faith and fair dealing and the
discretion of the court before which any proceeding therefor
may be brought.
(7) The Bonds have been duly authorized by all
necessary corporate action on the part of the Company and
are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as may be limited by (i) applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and by general
equitable principles (whether considered in a proceeding in
equity or at law) and (ii) concepts of materiality,
reasonableness, good faith and fair dealing and the
discretion of the court before which any proceeding therefor
may be brought, and are entitled to the benefit of the
security afforded by the Mortgage.
(8) The Purchase Agreement and the Registration Rights
Agreement have each been duly authorized, executed and
delivered by the Company and are legal, valid and binding
instruments of the Company enforceable against the Company
in accordance with their respective terms, except as may be
limited by (i) applicable bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and by general equitable principles (whether
considered in a proceeding in equity or at law) and (ii)
concepts of materiality, reasonableness, good faith and fair
dealing and the discretion of the court before which any
proceeding therefor may be brought and except as the rights
to indemnification and contribution thereunder may be
limited by federal or state securities laws or public
policy.
(9) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the
issuance and sale of the Bonds by the Company; to the best
of my knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of
any governmental body (other than under the Securities Act
and the Trust Indenture Act in connection with the
transactions contemplated by the Registration Rights
Agreement or in connection or compliance with the provisions
of the securities or blue sky laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Purchase Agreement; and
no further approval, authorization, consent or other order
of any governmental body is legally required to permit the
performance by the Company of its obligations with respect
to the Bonds or under the Mortgage, the Registration Rights
Agreement and the Purchase Agreement.
(10) The issuance and sale by the Company of the Bonds
and the execution, delivery and performance by the Company
of the Purchase Agreement, the Registration Rights Agreement
and the Mortgage (a) will not violate any provision of the
Company's Restated Articles of Incorporation or By-laws, (b)
will not violate any provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
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).
(11) Assuming that the representations and warranties
of the Company and you set forth in Sections 5.9 and 6.1(b)
of the Purchase Agreement, respectively, are accurate and
the agreements therein have been complied with, no
registration of the Bonds under the Securities Act or
qualification of the Mortgage under the Trust Indenture Act
of 1939 is required in connection with the offer and sale of
the Bonds by the Company and the purchase of the Bonds by
you in the manner contemplated by the Purchase Agreement (it
being understood that I do not express any opinion
concerning any sale of the Bonds subsequent to the initial
purchase thereof by you).
I have examined the opinions of even date herewith rendered to
you by Xxxxxx Xxxx & Priest LLP and Pillsbury Xxxxxxxx Xxxx
Xxxxxxx LLP and concur in the conclusions expressed therein
insofar as they involve questions of Texas and Louisiana law.
With respect to the opinions set forth in paragraphs (4) and (5)
above, I call your attention to the fact that the provisions of
the Atomic Energy Act of 1954, as amended, and the regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Mortgage)
who seek to acquire, possess or use nuclear production
facilities.
I am a member of the Bar of the State of Louisiana, and this
opinion is limited to the laws of the States of Louisiana, New
York and Texas and the United States of America. As to all
matters of Texas and New York law, I have relied (without
independent inquiry), with your approval, in the case of Texas
law, upon the opinion of even date herewith addressed to me (and
in which it is stated you may rely) of Xxxxxx, Xxxx & Xxxxxx,
L.L.P. of Beaumont, Texas and, in the case of New York law, upon
the opinion of even date herewith addressed to you of Xxxxxx Xxxx
& Priest LLP of New York, New York.
The opinion set forth above is solely for your benefit in
connection with the Purchase Agreement and the transactions
contemplated thereunder and, except for transferees of the Bonds
that are Institutional Investors, who may rely on the opinion as
of the date hereof, it may not be relied upon in any manner by
any other person or for any other purpose, without my prior
written consent, except that Xxxxxx Xxxx & Priest LLP and
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP may rely on this opinion as
to all matters of Louisiana law in rendering their opinions
required to be delivered under the Purchase Agreement. This
opinion is rendered as of the date hereof, and I assume no
obligation to update or supplement this letter to reflect any
circumstances that may hereafter come to my attention with
respect to the opinions set forth above, including any changes in
applicable law that may hereafter occur.
Very truly yours,
Xxxx X. Abuso
Senior Counsel-Corporate and Securities -
Entergy Services, Inc.
EXHIBIT 4.4(b)
[Letterhead of Xxxxxx Xxxx & Priest LLP]
September 28, 0000
Xxxxxxxx Xxxxx Xxxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Xxxx X. Abuso, Esq., Senior Counsel-Corporate
and Securities of Entergy Services, Inc., and Xxxxxx, Xxxx &
Xxxxxx, L.L.P., of Beaumont, Texas, have acted as counsel for
Entergy Gulf States, Inc., a Texas corporation (the "Company"),
in connection with the issuance and sale to you pursuant to the
Purchase Agreement, dated September 28, 2005, (the "Purchase
Agreement"), between the Company and you, of $200,000,000 of its
First Mortgage Bonds, Floating Rate Series due September 28, 2005
(the "Bonds"), issued pursuant to the Company's Indenture of
Mortgage, dated September 1, 1926, with JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank), as trustee (the
"Trustee"), as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, and as it
will be further amended and supplemented by the Seventy-second
Supplemental Indenture, dated as of September 1, 2005 (the
"Supplemental Indenture") (the Indenture of Mortgage as so
amended and supplemented being hereinafter referred to as the
"Mortgage"). This opinion is being rendered to you at the
request of the Company. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the
Purchase Agreement.
In our capacity as such counsel, we have either participated in
the preparation of or have examined and are familiar with: (a)
the Company's Restated Articles of Incorporation and the
Company's By-Laws; (b) the Purchase Agreement; (c) the Mortgage;
(d) the Registration Rights Agreement; (e) the records of various
corporate proceedings relating to the authorization, issuance and
sale of the Bonds by the Company and the execution and delivery
by the Company of the Supplemental Indenture, the Purchase
Agreement and the Registration Rights Agreement; and (f) the
proceedings before and the order entered by the Commission under
the Holding Company Act relating to the issuance and sale of the
Bonds by the Company. As to such questions of fact material to
the opinions expressed herein, we have relied upon
representations and certifications of officers of the Company
(including but not limited to those contained in the Purchase
Agreement and the Mortgage and certificates delivered at the
closing of the sale of the Bonds) and appropriate public
officials without independent verification of such matters except
as otherwise described herein. We have also examined or caused
to be examined such other documents and have satisfied ourselves
as to such other matters as we have deemed necessary in order to
render this opinion. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to the originals
of the documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter
documents. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly authorized by all necessary
corporate action on the part of the Company, has been duly
executed and delivered by the Company, is a legal, valid and
binding instrument of the Company enforceable against the Company
in accordance with its terms, except as may be limited by (i) the
laws of the States of Texas and Louisiana, where the property
covered thereby is located, affecting the remedies for the
enforcement of the security provided for therein, (ii) applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at
law), and (iii) concepts of materiality, reasonableness, good
faith and fair dealing and the discretion of the court before
which any proceeding therefor may be brought.
(2) The Bonds have been duly authorized by all necessary
corporate action on the part of the Company and are legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as may be limited
by (i) applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (whether considered in a proceeding
in equity or at law) and (ii) concepts of materiality,
reasonableness, good faith and fair dealing and the discretion of
the court before which any proceeding therefor may be brought;
and are entitled to the benefit of the security afforded by the
Mortgage.
(3) The Purchase Agreement and the Registration Rights Agreement
have each been duly authorized, executed and delivered by the
Company and are legal, valid and binding instruments of the
Company enforceable against the Company in accordance with their
respective terms, except as may be limited by (i) applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at
law) and (ii) concepts of materiality, reasonableness, good faith
and fair dealing and the discretion of the court before which any
proceeding therefor may be brought and except as the rights to
indemnification and contribution thereunder may be limited by
federal or state securities laws or public policy.
(4) An appropriate order has been entered by the Commission
under the Holding Company Act authorizing the issuance and sale
of the Bonds by the Company; to the best of our knowledge, said
order is in full force and effect; no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act and the Trust Indenture Act
in connection with the transactions contemplated by the
Registration Rights Agreement or in connection or compliance with
the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
of the Bonds by the Company pursuant to the Purchase Agreement;
and no further approval, authorization, consent or other order of
any governmental body is legally required to permit the
performance by the Company of its obligations with respect to the
Bonds or under the Mortgage, the Registration Rights Agreement
and the Purchase Agreement.
(5) Assuming that the representations and warranties of the
Company and you set forth in Sections 5.9 and 6.1(b) of the
Purchase Agreement, respectively, are accurate and the agreements
therein have been complied with, no registration of the Bonds
under the Securities Act or qualification of the Mortgage under
the Trust Indenture Act of 1939 is required in connection with
the offer and sale of the Bonds by the Company and the purchase
of the Bonds by you in the manner contemplated by the Purchase
Agreement (it being understood that I do not express any opinion
concerning any sale of the Bonds subsequent to the initial
purchase thereof by you).
With respect to the opinions set forth in paragraphs (1) and (2)
above, we call your attention to the fact that the provisions of
the Atomic Energy Act of 1954, as amended, and the regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Mortgage)
who seek to acquire, possess or use nuclear production
facilities.
This opinion is limited to the laws of the States of New York,
Texas and Louisiana and the United States of America. As to all
matters of Louisiana law, we have relied (without independent
inquiry) upon the opinion of even date herewith addressed to you
by Xxxx X. Abuso, Esq., Senior Counsel-Corporate and Securities
of Entergy Services, Inc. and as to all matters of Texas law, we
have relied upon the opinion of even date herewith addressed to
you (or in which it is stated you may rely) of Xxxxxx, Xxxx &
Xxxxxx, L.L.P., Texas counsel to the Company. We have not
examined into and are not expressing an opinion upon matters
relating to incorporation of the Company, titles to property,
franchises or the lien of the Mortgage.
The opinion set forth above is solely for your benefit in
connection with the Purchase Agreement and the transactions
contemplated thereunder and it may not be relied upon in any
manner by any other person or for any other purpose, without our
prior written consent, except for transferees of the Bonds that
are Institutional Investors, who may rely on this opinion as of
the date hereof, and Xxxx X. Abuso, Esq., Senior Counsel-
Corporate and Securities of Entergy Services, Inc., may rely on
this opinion as to all matters of New York law in rendering her
opinion required to be delivered under the Purchase Agreement.
This opinion is rendered as of the date hereof, and we assume no
obligation to update or supplement this letter to reflect any
circumstances that may hereafter come to our attention with
respect to the opinions set forth above, including any changes in
applicable law that may hereafter occur.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
EXHIBIT 4.4(d)
[Letterhead of Xxxxxx, Xxxx & Xxxxxx, L.L.P.]
September 28, 2005
Ms. Xxxx Abuso
Senior Counsel
Entergy Services, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Dear Ms. Abuso:
We have acted as Texas counsel for Entergy Gulf States,
Inc., a Texas corporation (the "Company"), in connection with the
issuance and sale to Citicorp North America, Inc. ("Citicorp")
pursuant to a Purchase Agreement, dated September 28, 2005 (the
"Purchase Agreement"), between the Company and Citicorp, of
$200,000,000 of its First Mortgage Bonds, Floating Rate Series
due October 2, 2006 (the "Bonds"), issued pursuant to the
Company's Indenture of Mortgage, dated September 1, 1926, with
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Seventy-second Supplemental Indenture, dated
as of September 1, 2005 (the "Supplemental Indenture"; the
Indenture of Mortgage as so amended and supplemented being
hereinafter referred to as the "Mortgage"). Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Purchase Agreement.
In our capacity as Texas counsel to the Company, we have
either participated in the preparation of or have examined and
are familiar with: (a) the Company's Restated Articles of
Incorporation and the Company's By-laws, as amended; (b) the
Purchase Agreement; (c) the Mortgage; (d) the Registration Rights
Agreement; and (e) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
the Company and the execution and delivery by the Company of the
Supplemental Indenture, the Purchase Agreement and the
Registration Rights 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 Bonds, except a
specimen thereof, and we have relied upon a certificate of the
Trustee as to the authentication and delivery thereof.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals or facsimiles of originals, the legal capacity of
natural persons, the conformity with the originals of all
documents submitted to us as copies and the authenticity of the
originals of such latter documents. In making our examination of
documents and instruments executed or to be executed by persons
other than the Company, we have assumed that each such other
person had the requisite power and authority to enter into and
perform fully its obligations thereunder, the due authorization
by each such other person for the execution, delivery and
performance thereof by such person, and the due execution and
delivery by or on behalf of such person of each such document and
instrument. In the case of any such other person that is not a
natural person, we have also assumed, insofar as is relevant to
the opinions set forth below, that each such other person is duly
organized, validly existing and in good standing under the laws
of the jurisdiction in which such other person was created, and
is duly qualified and in good standing in each other jurisdiction
where the failure to be so qualified could reasonably be expected
to have a material effect upon the ability of such other person
to execute, deliver and/or perform such other person's
obligations under any such document or instrument. We have
further assumed that each document, instrument, agreement, record
and certificate reviewed by us for purposes of rendering the
opinions expressed below has not been amended by oral agreement,
conduct or course of dealing of the parties thereto, although we
have no knowledge of any facts or circumstances that could give
rise to such an amendment.
As to questions of fact material to the opinions expressed
herein, we have relied upon certificates and representations of
officers of the Company (including but not limited to those
contained in the Purchase Agreement and the Mortgage and
certificates delivered at the closing of the sale of the Bonds)
and appropriate public officials without independent verification
of such matters except as otherwise described herein.
Whenever our opinions herein with respect to the existence
or absence of facts are stated to be to our knowledge or
awareness, we intend to signify that no information has come to
our attention in the preparation of this opinion letter that
would give us actual knowledge that would contradict such
opinions. However, except to the extent necessary in order to
give the opinions hereinafter expressed, we have not undertaken
any independent investigation to determine the existence or
absence of such facts and no inference as to knowledge of the
existence or absence of such facts (except to the extent
necessary in order to give the opinions hereinafter expressed)
should be assumed.
In rendering the opinion set forth in paragraph (2) below,
as to periods and acquisitions after 1992 we have relied solely
upon reports from personnel of the Company responsible for the
acquisition of real property or maintenance of records with
respect thereto, regarding title verification procedures used in
acquisition of property by the Company which we have no reason to
believe are inaccurate in any material respect. As to periods
and acquisitions after 1992, we have not, for purposes of
rendering such opinion, conducted an independent examination or
investigation of official title records (or abstracts thereof)
with respect to property acquired by the Company or independently
verified with receipt or content of title policies or opinions
with respect to such acquisitions.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Texas, has due corporate power and authority to conduct the
business that it is described as conducting in the Disclosure
Document and to own and operate the properties owned and operated
by it in such business in Texas.
(2) The Company has good and sufficient title to the properties
described as owned by it in and as subject to the lien of the
Mortgage (except properties excepted from and those released
under the terms of the Mortgage) in the State of Texas, subject
only to Permitted Encumbrances as defined in the Mortgage and to
minor defects and encumbrances customarily found in properties of
like size and character that do not materially impair the use of
such properties by the Company in the conduct of its electric
utility business in Texas. The description of such properties in
Texas set forth in the Mortgage is adequate to constitute the
Mortgage as a lien thereon; and subject to paragraph (3) hereof,
the Mortgage, subject only to such minor defects and Permitted
Encumbrances, constitutes a valid, direct and first mortgage lien
upon said properties, which include substantially all of the
permanent physical properties and franchises of the Company
(other than those expressly excepted in the Mortgage) in Texas.
All permanent physical properties and franchises (other than
those expressly excepted in the Mortgage) acquired by the Company
in Texas after the date of the Supplemental Indenture will, upon
such acquisition, become subject to the lien of the Mortgage,
subject, however, to such Permitted Encumbrances and to liens, if
any, existing or placed thereon at the time of the acquisition
thereof by the Company and except as may be limited by bankruptcy
law.
(3)(a) It will be necessary to deposit the Supplemental
Indenture in the office of the Secretary of State of Texas in
accordance with 35.02 of the Texas Business and Commerce Code,
as amended. Upon the deposit of the Supplemental Indenture as
aforesaid, the lien granted thereby shall be perfected as to
property located in Texas, and the perfection and notice provided
by such filing shall continue in effect until terminated or
released as to specific property by the filing of a termination
statement or release signed by the secured party. No renewal,
refiling or continuation of such filing is required, and no
further or other recordation or filing under Texas law is
requisite to preserve or protect the lien of the Mortgage for the
benefit of the holders of the Bonds or to make such lien
effective as to and enforceable against third parties.
(b) All permanent physical properties and
franchises of the Company (other than those expressly
excepted in the Mortgage) in Texas presently owned by the
Company are subject to the lien of the Mortgage, subject
to minor defects and Permitted Encumbrances of the
character referred to in paragraph (2) hereof.
(4) The Mortgage has been duly authorized by all necessary
corporate action on the part of the Company, has been duly
executed and delivered by the Company, is a legal, valid and
binding instrument of the Company enforceable against the Company
in accordance with its terms, except as may be limited by (i) the
laws of the State of Texas, where the property covered thereby in
Texas is located, affecting the remedies for the enforcement of
the security provided for therein, which laws do not, in our
opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (ii) applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at
law), and (iii) concepts of materiality, an implied covenant of
reasonableness, good faith and fair dealing and the discretion of
the court before which any proceeding therefor may be brought.
(5) The Bonds have been duly authorized by all necessary
corporate action on the part of the Company and are legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (whether considered in a proceeding
in equity or at law), and concepts of materiality, an implied
covenant of reasonableness, good faith and fair dealing and the
discretion of the court before which any proceeding therefor may
be brought, and are entitled to the benefit of the security
afforded by the Mortgage.
(6) The Purchase Agreement and the Registration Rights Agreement
have each been duly authorized, executed and delivered by the
Company.
(7) The issuance and sale by the Company of the Bonds and the
execution, delivery and performance by the Company of the
Purchase Agreement, the Registration Rights Agreement and the
Mortgage (a) will not violate any provision of the Company's
Restated Articles of Incorporation or the Company's By-laws, as
amended, (b) will not violate any provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the Company
located in Texas 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 which purports to be binding upon the Company
or upon any of its assets, and (c) will not violate any provision
of any Texas 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 in
Texas (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 Texas).
(8) No approval, authorization, consent or other order of any
Texas governmental body (other than in connection with the
provisions of the securities or blue sky laws of Texas) is
legally required to permit the issuance and sale of the Bonds by
the Company pursuant to the Purchase Agreement or to permit the
performance by the Company of its obligations with respect to the
Bonds or under the Mortgage, the Purchase Agreement and the
Registration Rights Agreement.
With respect to the opinion set forth in paragraph (2) above
insofar as it relates to the adequacy of the Company's title to
property for its current use and with respect to the Company's
franchises, we call your attention to disclosure in the documents
incorporated by reference in the Disclosure Documents regarding
litigation and/or regulatory proceedings relating to certain
franchises of the Company in Texas and certain fiberoptic cable
owned by the Company and used by third parties.
We are members of the Bar of the State of Texas and do not
hold ourselves out for purposes of this opinion as experts on the
laws of any jurisdiction other than the State of Texas.
The opinion set forth above is solely for your benefit in
connection with the rendering of your opinion required to be
delivered under the Purchase Agreement and it may not be relied
upon in any manner by any other person or for any other purpose,
without our prior written consent, except that Xxxxxx Xxxx &
Priest LLP and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP may rely on
this opinion as to all matters of Texas law in rendering their
opinions required to be delivered under the Purchase Agreement
and Citicorp may rely on this opinion in connection with the
Purchase Agreement and the transactions contemplated thereunder
to the same extent as if it were addressed to them and
transferees of the Bonds that are Institutional Investors may
rely on this opinion as of the date hereof. This opinion is
rendered as of the date hereof, and we assume no obligation to
update or supplement this letter to reflect any circumstances
that may hereafter come to our attention with respect to the
opinions set forth above, including any changes in applicable law
that may hereafter occur.
Very truly yours,
Xxxxxx, Xxxx & Xxxxxx, L.L.P.
EXHIBIT 4.4(d)
[Letterhead of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP]
September 28, 0000
Xxxxxxxx Xxxxx Xxxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance and
sale by Entergy Gulf States, Inc., a Texas corporation (the
"Company"), of $200,000,000 of its First Mortgage Bonds, Floating
Rate Series due October 2, 2006 (the "Bonds") under the
Company's Indenture of Mortgage, dated September 1, 1926, with
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), as trustee (the "Trustee"), as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Seventy-second Supplemental Indenture, dated
as of September 1, 2005 (the Indenture of Mortgage as so amended
and supplemented being hereinafter referred to as the
"Mortgage"), pursuant to the Purchase Agreement between you and
the Company dated September 28, 2005 (the "Purchase Agreement").
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the Purchase Agreement.
We are members of the New York Bar and, for purposes of this
opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied (without
independent inquiry) upon the opinions of even date herewith
rendered to you (or in which it is stated you may rely) by Xxxx
X. Abuso, Esq., Senior Counsel-Corporate and Securities of
Entergy Services, Inc., as to all matters of Louisiana law
related to this opinion and by Xxxxxx, Xxxx & Xxxxxx, L.L.P. as
to all matters of Texas law related to this opinion.
We have reviewed, and have relied as to matters of fact material
to this opinion upon, the documents delivered to you at the
closing of the transactions contemplated by the Purchase
Agreement, and we have reviewed such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to render this opinion. As to
such matters of fact material to this opinion, we have also
relied upon representations and certifications of the Company in
such documents and in the Purchase Agreement. 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 reviewed the Bonds, except a
specimen thereof, and we have relied upon a certificate of the
Trustee as to the authentication and delivery thereof and as to
the authorization, execution and delivery of the Supplemental
Indenture. We have not examined, and are expressing no opinion or
belief as to matters relating to, titles to property, franchises,
and the nature, extent and priority of the lien purported to be
created by the Mortgage or the recordation or perfection of such
lien. We have assumed, without independent verification, the
validity and accuracy of all certificates delivered under the
Mortgage in connection with the issuance and sale of the Bonds.
No opinion is expressed regarding compliance with covenants in
any agreement to which the Company or any of its affiliates is a
party, or in any regulatory order pertaining to the Company or
any of its affiliates, incorporating calculations of a financial
or accounting nature.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly authorized by all necessary
corporate action on the part of the Company, has been duly
executed and delivered by the Company, and is a legal, valid and
binding instrument of the Company enforceable against the Company
in accordance with its terms, except as may be limited by (i) the
laws of the States of Texas and Louisiana, where the property
covered thereby is located, affecting the remedies for the
enforcement of the security purported to be provided for therein,
(ii) bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and general equitable
principles (whether considered in a proceeding in equity or at
law), and (iii) concepts of materiality, reasonableness, good
faith and fair dealing and the discretion of the court before
which any proceeding may be brought.
(2) The Bonds have been duly authorized by all necessary
corporate action on the part of the Company and are legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as may be limited
by (i) bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and general equitable
principles (whether considered in a proceeding in equity or at
law) and (ii) concepts of materiality, reasonableness, good faith
and fair dealing and the discretion of the court before which any
proceeding may be brought, and are entitled to the benefit of the
security purported to be afforded by the Mortgage.
(3) The Purchase Agreement and the Registration Rights Agreement
have each been duly authorized, executed and delivered by the
Company and are legal, valid and binding instruments of the
Company enforceable against the Company in accordance with their
respective terms, except as may be limited by (i) applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (whether considered in a proceeding in equity or at
law) and (ii) concepts of materiality, reasonableness, good faith
and fair dealing and the discretion of the court before which any
proceeding therefor may be brought and except as the rights to
indemnification and contribution thereunder may be limited by
federal or state securities laws or public policy.
(4) An appropriate order has been entered by the Commission
under the Holding Company Act, authorizing the issuance and sale
of the Bonds by the Company, and to the best of our knowledge,
such order is in full force and effect; and no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act and the Trust Indenture Act
in connection with the transactions contemplated by the
Registration Rights Agreement or in connection or compliance with
the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
of the Bonds by the Company pursuant to the Purchase Agreement.
(5) Assuming that the representations and warranties of the
Company and you set forth in Sections 5.9 and 6.1(b) of the
Purchase Agreement, respectively, are accurate and the agreements
therein have been complied with, no registration of the Bonds
under the Securities Act or qualification of the Mortgage under
the Trust Indenture Act of 1939 is required in connection with
the offer and sale of the Bonds by the Company and the purchase
of the Bonds by you in the manner contemplated by the Purchase
Agreement (it being understood that we do not express any opinion
concerning any sale of the Bonds subsequent to the initial
purchase thereof by you).
We call your attention to the fact that, with respect to the
opinions set forth in paragraphs (1) and (2) above, (i) Section
9.06 of the Mortgage provides that the Company will promptly
record and file the Supplemental Indenture in such manner and in
such places as may be required by law in order to fully preserve
and protect the security of the bondholders and all rights of the
Trustee and (ii) the provisions of the Atomic Energy Act of 1954,
as amended, and regulations promulgated thereunder impose certain
licensing and other requirements upon persons (such as the
Trustee or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
This opinion is furnished only to you in connection with the
transaction contemplated by the Purchase Agreement and, except as
set forth in the next sentence, is solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise
referred to for any other purpose or, except for transferees of
the Bonds that are Institutional Investors, relied upon by any
other person for any purpose without our prior written consent.
This opinion is issued, and our opinions herein are expressed, as
of the date hereof. We assume no obligation to update or
supplement this opinion to reflect any circumstances that may
hereafter come to our attention with respect to the opinions set
forth above, including any changes in applicable law that may
hereafter occur, nor will we be deemed to have acted as counsel
to such transferees by any reliance on this opinion.
Very truly yours,
PILLSBURY XXXXXXXX XXXX XXXXXXX LLP
