Exhibit 1(a)
LOUISIANA POWER & LIGHT COMPANY
[$___________]
[____%] [_______________] due [_______ __, ____]
UNDERWRITING AGREEMENT
[__________ __, ____]
[Underwriters]
c/o [Representative]
[Address]
Ladies & Gentlemen:
The undersigned, Louisiana Power & Light Company, a
Louisiana corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided),
an aggregate of [$_____________] principal amount of the
Company's [_____%] [_________________] due [_______ __, ____]
(the "Securities"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Securities set forth opposite the name of such
Underwriter in Schedule I attached hereto at [____%] of the
principal amount of the Securities [plus accrued interest thereon
from [_______ __, ____], to the Closing Date (as defined
herein)].
SECTION 2. Description of Securities. The Securities
shall be issued under and pursuant to an Indenture for Debt
Securities, dated as of [_______ __, ____] between the Company
and [_____________], as trustee (the "Trustee"), as supplemented
and as the same shall be further supplemented by the [______]
Supplemental Indenture, dated as of [_______ __, ____] (the
"Supplemental Indenture"). Said Indenture for Debt Securities,
as previously supplemented and as to be further supplemented by
the Supplemental Indenture, is hereinafter referred to as the
"Indenture". The Securities and the Indenture shall have the
terms and provisions described in the Prospectus (as defined
herein), provided that subsequent to the date hereof and prior to
the Closing Date the form of the [Indenture or the] Supplemental
Indenture may be amended by mutual agreement between the Company
and the Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
[Arkansas][Louisiana] and has the necessary corporate power
and authority to conduct the business which it is described
in the Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
(b) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3 (File No. 33-[______]) for the registration of
[$___________] aggregate principal amount of the Company's
debt securities (including the Securities) under the
Securities Act of 1933, as amended (the "Securities Act")
(of which an aggregate of [$____________] of such debt
securities remain unsold), and such registration statement
has become effective. The Company qualifies for use of Form
S-3 for the registration of the Securities. The prospectus
forming a part of such registration statement, at the time
such registration statement (or the most recent amendment
thereto filed prior to the time of effectiveness of this
Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus". In the event that (i) the Basic
Prospectus shall have been amended, revised or supplemented
(but excluding any supplements to the Basic Prospectus
relating solely to debt securities other than the
Securities) prior to the time of effectiveness of this
Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the
Securities, or (ii) the Company shall have filed documents
pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after
the time such registration statement became effective and
prior to the time of effectiveness of this Underwriting
Agreement (but excluding documents incorporated therein by
reference relating solely to debt securities other than the
Securities), which are deemed to be incorporated by
reference in the Basic Prospectus pursuant to Item 12 of
Form S-3, the term "Basic Prospectus" as used herein shall
also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference.
Such registration statement in the form in which it became
effective and as it may have been amended by all amendments
thereto as of the time of effectiveness of this Underwriting
Agreement (including for these purposes as an amendment any
document incorporated by reference in the Basic Prospectus),
and the Basic Prospectus as it shall be supplemented to
reflect the terms of the offering and sale of the Securities
by a prospectus supplement (a "Prospectus Supplement") to be
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424"),
are hereinafter referred to as the "Registration Statement"
and the "Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file any amendment to the
Registration Statement or supplement to the Prospectus
(except any amendment or supplement relating solely to debt
securities other than the Securities), and (ii) between the
time of effectiveness of this Underwriting Agreement and the
Closing Date, the Company will not file any document which
is to be incorporated by reference in, or any supplement to,
the Basic Prospectus, in either case, without prior notice
to the Underwriters and to Winthrop, Stimson, Putnam &
Roberts ("Counsel for the Underwriters"), or any such
amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes
of this Underwriting Agreement, any document which is filed
with the Commission after the time of effectiveness of this
Underwriting Agreement and is incorporated by reference in
the Prospectus (except documents incorporated by reference
relating solely to debt securities other than the
Securities) pursuant to Item 12 of Form S-3 shall be deemed
a supplement to the Prospectus.
(d) The Registration Statement, in the form in which it (or
the latest post-effective amendment thereto) became
effective, and the Indenture, at such time, fully complied,
and the Prospectus, when delivered to the Underwriters for
their use in making confirmations of sales of the Securities
and at the Closing Date, as it may then be amended or
supplemented, will fully comply in all material respects
with the applicable provisions of the Securities Act, the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the
Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. The
documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date first filed
with the Commission pursuant to the Exchange Act, fully
complied or will fully comply in all material respects with
the applicable provisions of the Exchange Act and the rules
and regulations of the Commission thereunder or pursuant to
said rules and regulations did or will be deemed to comply
therewith. On the later of (i) the date the Registration
Statement was declared effective by the Commission under the
Securities Act or (ii) the date that the Company's most
recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act (the date described in
either clause (i) or (ii) is hereinafter referred to as the
"Effective Date"), the Registration Statement did not, and
on the date that any post-effective amendment to the
Registration Statement became or becomes effective (but
excluding any post-effective amendment relating solely to
debt securities other than the Securities), the Registration
Statement, as amended by any such post-effective amendment,
did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not
misleading. At the time the Prospectus is delivered to the
Underwriters for their use in making confirmations of sales
of the Securities and at the Closing Date, the Prospectus,
as it may then be amended or supplemented, will not contain
an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
are made, not misleading, and on said dates and at such
times, the documents then incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, when read
together with the Prospectus, or the Prospectus, as it may
then be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made,
not misleading. The foregoing representations and
warranties in this paragraph (d) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by the Underwriters or on the behalf of any Underwriter
specifically for use in connection with the preparation of
the Registration Statement or the Prospectus, as they may be
then amended or supplemented, or to any statements in or
omissions from the statement of eligibility of the Trustee,
as it may then be amended, under the Trust Indenture Act.
(e) The issuance and sale of the Securities and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
(f) Except as set forth or contemplated in the Prospectus,
the Company possesses adequate franchises, licenses,
permits, and other rights to conduct its business and
operations as now conducted, without any known conflicts
with the rights of others which could have a material
adverse effect on the Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Securities as soon after the
effectiveness of this Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Securities will be offered to the public at the initial
public offering price specified in the Prospectus Supplement
[plus accrued interest thereon from [_________ __, ____] to the
Closing Date].
SECTION 5. Time and Place of Closing. Delivery of the
Securities and payment of the purchase price therefor by [check
or checks payable in New York Clearing House funds] [wire
transfer of immediately available funds] shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on [_______ __, ____], or at
such other time on the same or such other day as shall be agreed
upon by the Company and [Representative], or as may be
established in accordance with Section 11 hereof. The hour and
date of such delivery and payment are herein called the "Closing
Date".
The Securities shall be delivered to the Underwriters
in book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the
Securities shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Securities, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Securities available to the Underwriters for checking
not later than 2:30 P.M., New York time, on the last business day
preceding the Closing Date at such place as may be agreed upon
among the Underwriters and the Company, or at such other time
and/or date as may be agreed upon among the Underwriters and the
Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration
Statement relating to the Securities, as originally filed
with the Commission, and of all amendments or supplements
thereto relating to the Securities, certified by an officer
of the Company to be in the form filed.
(b) The Company will deliver to the Underwriters as many
copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with,
or transmitted for filing to, the Commission pursuant to and
in compliance with Rule 424(b) and will advise
[Representative] promptly of the issuance of any stop order
under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of
which the Company shall have received notice. The Company
will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof if
issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are
required by law to deliver a prospectus, if any event
relating to or affecting the Company, or of which the
Company shall be advised by the Underwriters in writing,
shall occur which in the Company's opinion should be set
forth in a supplement or amendment to the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser of the
Securities, the Company will amend or supplement the
Prospectus by either (i) preparing and filing with the
Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus, or (ii) making an
appropriate filing pursuant to Section 13, 14 or 15(d) of
the Exchange Act which will supplement or amend the
Prospectus, so that, as supplemented or amended, it will not
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading.
Unless such event relates solely to the activities of the
Underwriters (in which case the Underwriters shall assume
the expense of preparing any such amendment or supplement),
the expenses of complying with this Section 6(d) shall be
borne by the Company until the expiration of nine months
from the time of effectiveness of this Underwriting
Agreement, and such expenses shall be borne by the Under-
writers thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date hereof, the
Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale under the blue-sky laws of
such jurisdictions as the Underwriters may reasonably
designate, provided that the Company shall not be required
to qualify as a foreign corporation or dealer in securities,
to file any consents to service of process under the laws of
any jurisdiction, or to meet any other requirements deemed
by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing of the Registration
Statement and any post-effective amendments thereto, (ii)
the printing, issuance and delivery of the Securities and
the preparation, execution, printing and recordation of [the
Indenture and] the Supplemental Indenture, (iii) legal fees
and expenses relating to the qualification of the Securities
under the blue-sky laws of various jurisdictions in an
amount not to exceed [$_____], (iv) the printing and
delivery to the Underwriters of reasonable quantities of
copies of the Registration Statement, the preliminary (and
any supplemental) blue sky survey, any preliminary
prospectus supplement relating to the Securities and the
Prospectus and any amendment or supplement thereto, except
as otherwise provided in paragraph (d) of this Section 6,
(v) fees of the rating agencies in connection with the
rating of the Securities, (vi) fees (if any) of the National
Association of Securities Dealers, Inc. (the "NASD") in
connection with its review of the terms of the offering [,
and (vii) the cost to the Underwriters of providing
immediately available funds on the Closing Date as provided
in Section 5 hereof]. Except as provided above, the Company
shall not be required to pay any expenses of the
Underwriters, except that, if this Underwriting Agreement
shall be terminated in accordance with the provisions of
Section 7, 8 or 12 hereof, the Company will reimburse the
Underwriters for (i) the reasonable fees and expenses of
Counsel for the Underwriters, whose fees and expenses the
Underwriters agree to pay in any other event, and (ii)
reasonable out-of-pocket expenses, in an amount not
exceeding in the aggregate $15,000, incurred in
contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to
the Underwriters for damages on account of loss of
anticipated profits.
(h) The Company will not sell any additional long-term debt
securities without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date or (ii) the date of
the termination of the fixed price offering restrictions
applicable to the Underwriters. The Underwriters agree to
notify the Company of such termination if it occurs prior to
the Closing Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Indenture
and the rights under the Supplemental Indenture, and the
Company will use its best efforts to cause to be furnished
to the Underwriters a supplemental opinion of counsel for
the Company, addressed to the Underwriters, stating that all
such recordings, registrations and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Securities shall be subject to the accuracy on the date hereof
and on the Closing Date of the representations and warranties
made herein on the part of the Company and of any certificates
furnished by the Company on the Closing Date and to the following
conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Company or the
Underwriters, threatened by, the Commission on the Closing
Date; and the Underwriters shall have received a
certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that no such stop
order has been or is in effect and that no proceedings for
such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(c) [At the Closing Date, there shall have been issued, and
there shall be in full force and effect, to the extent
legally required for the issuance and sale of the
Securities, an order of the Commission under the Public
Utility Holding Company Act of 1935, as amended (the "1935
Act"), authorizing the issuance and sale of the Securities
on the terms set forth in, or contemplated by, this
Underwriting Agreement.]
(d) At the Closing Date, the Underwriters shall have
received from [_________________________] and Reid & Priest
LLP, opinions, dated the Closing Date, substantially in the
forms set forth in Exhibits A and B hereto, respectively,
(i) with such changes therein as may be agreed upon by the
Company and the Underwriters with the approval of Counsel
for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for
use in offering the Securities, with changes therein to
reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel
for the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit C hereto,
with such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this Underwriting
Agreement, the Underwriters shall have received from Coopers
& Lybrand L.L.P., the Company's independent certified public
accountants (the "Accountants"), a letter dated the date
hereof and addressed to the Underwriters to the effect that
(i) they are independent certified public accountants with
respect to the Company within the meaning of the Securities
Act and the applicable published rules and regulations
thereunder; (ii) in their opinion, the financial statements
and financial statement schedules examined by them and
included or incorporated by reference in the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the Exchange Act and the applicable published rules and
regulations thereunder; (iii) on the basis of performing the
procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, if any, and the stockholder
of the Company, since December 31, [____] to a specified
date not more than five days prior to the date of such
letter, and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily
reveal matters of significance with respect to the comments
made in such letter and, accordingly, that the Accountants
make no representations as to the sufficiency of such
procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe
that, to the extent applicable, (A) the unaudited financial
statements of the Company (if any) included or incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder; (B)
any material modifications should be made to said unaudited
financial statements for them to be in conformity with
generally accepted accounting principles and (C) at a
specified date not more than five days prior to the date of
the letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company (x) set forth in the Prospectus,
and (y) set forth in documents filed by the Company pursuant
to Section 13, 14 or 15(d) of the Exchange Act as specified
in Exhibit D hereto, in each case, to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by
the President, a Vice President, the Treasurer or an
Assistant Treasurer of the Company, to the effect that (A)
the representations and warranties of the Company contained
herein are true and correct, (B) the Company has performed
and complied with all agreements and conditions in this
Underwriting Agreement to be performed or complied with by
the Company at or prior to the Closing Date and (C) since
the most recent date as of which information is given in the
Prospectus, as it may then be amended or supplemented, there
has not been any material adverse change in the business,
property or financial condition of the Company and there has
not been any material transaction entered into by the
Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended
or supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of [the Indenture and]
the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date, the statements contained in the letter
delivered pursuant to Section 7(f) hereof.
(j) On or prior to the effective date of this Underwriting
Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter, dated the date hereof and
addressed to the Underwriters, with respect to certain
financial information contained in the Prospectus, as
mutually agreed to by the Underwriters and the Company.
(k) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Indenture shall have occurred.
(l) Prior to the Closing Date, the [Representative] shall
have received from the Company evidence reasonably
satisfactory to the [Representative] that the Securities
have received ratings of ______ or better from Moody's
Investors Service, Inc. and _____ or better from Standard &
Poor's Ratings Group.
(m) Between the date hereof and the Closing Date, neither
Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of any of the
Company's outstanding debt securities in any respect.
(n) Between the date hereof and the Closing Date, no event
shall have occurred with respect to or otherwise affecting
the Company, which, in the reasonable opinion of the
Underwriters, materially impairs the investment quality of
the Securities.
(o) All legal matters in connection with the issuance and
sale of the Securities shall be satisfactory in form and
substance to Counsel for the Underwriters.
(p) The Company will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the
Closing Date.
(b) At the Closing Date there shall be in full force and
effect [an order of the Commission under the 1935 Act]
[orders of the Arkansas and Tennessee Public Service
Commissions] authorizing the issuance and sale of the
Securities on the terms set forth in or contemplated by this
Underwriting Agreement, the Indenture and the Prospectus.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to
[Representative]. Any such termination shall be without
liability of any party to the other party, except as otherwise
provided in paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, or upon an untrue statement or
alleged untrue statement of a material fact contained in the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424), or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424) or the Prospectus or any amendment or supplement to any
thereof or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement which
constitutes the statement of eligibility of the Trustee under the
Trust Indenture Act; and provided further, that the indemnity
agreement contained in this subsection shall not inure to the
benefit of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of the Securities to any person in respect of any Basic
Prospectus or the Prospectus, as supplemented or amended,
furnished by any Underwriter to a person to whom any of the
Securities were sold (excluding in both cases, however, any
document then incorporated or deemed incorporated by reference
therein), insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic Prospectus or
the Prospectus but eliminated or remedied prior to the
consummation of such sale in the Prospectus, or any amendment or
supplement thereto, furnished on a timely basis by the Company to
the Underwriters pursuant to Section 6(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating to any debt securities other
than the Securities and any document then incorporated or deemed
incorporated by reference in the Prospectus or such amendment or
supplement) is furnished by such Underwriter to such person (i)
with or prior to the written confirmation of the sale involved or
(ii) as soon as available after such written confirmation (if it
is made available to the Underwriters prior to settlement of such
sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of the Underwriters
and such parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Securities and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Securities which it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Securities which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Securities, the
other Underwriters shall be obligated to purchase the Securities
which such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Securities which any Underwriter has agreed to purchase pursuant
to Schedule I hereof be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such principal amount of
Securities without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Securities, the Company shall have the
right (a) to require the non-defaulting Underwriters to purchase
and pay for the respective principal amount of Securities that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Securities that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth of the respective principal amount of
Securities that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or (b) to procure one or more
others, members of the NASD (or, if not members of the NASD, who
are foreign banks, dealers or institutions not registered under
the Exchange Act and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon the terms
herein set forth, the principal amount of Securities that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a). In the event the
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday, or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter to purchase and pay for its
respective principal amount of Securities, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriters, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from [Representative] to the Company, if (a) after the execution
and delivery of this Underwriting Agreement and prior to the
Closing Date (i) trading generally shall have been suspended on
the New York Stock Exchange by The New York Stock Exchange, Inc.,
the Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the New York Stock Exchange by The New York Stock Exchange,
Inc., the Commission or other governmental authority, (iii) a
general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the judgment of [Representative], is material and
adverse and (b) in the case of any of the events specified in
clauses (a) (i) through (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of
[Representative], impracticable to market the Securities. This
Underwriting Agreement shall also be subject to termination, upon
notice by [Representative] as provided above, if, in the judgment
of [Representative], the subject matter of any amendment or
supplement (prepared by the Company) to the Prospectus (except
for information relating solely to the manner of public offering
of the Securities or to the activity of the Underwriters or to
the terms of any series of debt securities not included in the
Securities) filed or issued after the effectiveness of this
Underwriting Agreement by the Company shall have materially
impaired the marketability of the Securities. Any termination
hereof, pursuant to this Section 12, shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING
AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND
INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. This Underwriting Agreement shall become effective when a
fully executed copy thereof is delivered to the Company and to
[Representative]. This Underwriting Agreement may be executed in
any number of separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all
of which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Securities from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Representative] at the address set forth at the
beginning of this Underwriting Agreement to the attention of its
General Counsel or, if to the Company, shall be mailed or
delivered to it at [_________________], Attention: Secretary, or,
if to Entergy Services, Inc., shall be mailed or delivered to it
at 639 Loyola Avenue, New Orleans, Arkansas 70113, Attention:
Treasurer.
Very truly yours,
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [REPRESENTATIVE]
By:
Name:
Title:
SCHEDULE I
[___________________]
[____%] [_____________] due [_________ __, ____]
Name Amount
Total $
EXHIBIT A
[Letterhead of _______________]
[______ __, ____]
[Underwriters]
c/o [Representative
Address]
Ladies and Gentlemen:
[I am] [We are] counsel for [________________________]
(the "Company") and have acted in that capacity in connection
with the issuance and sale by the Company to you, pursuant to the
agreement effective [_________ __, ____] (the "Underwriting
Agreement"), between the Company and you, of [$___________] in
aggregate principal amount of its [____%] [___________________]
due [________ __, ____] (the "Securities"), issued pursuant to
the Company's Indenture for Debt Securities, dated as of [______
__, ____], as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the [______] Supplemental Indenture (the "Supplemental
Indenture") dated as of [________ __, ____] (the Indenture for
Debt Securities as so amended and supplemented being hereinafter
referred to as the "Indenture"). This opinion is rendered to you
at the request of the Company.
[I am] [We are] familiar with the organization of the
Company, the [charter] and By-Laws of the Company, both as
amended, and the records of various corporate and other
proceedings relating to the authorization, issuance and sale of
the Securities. [I have] [We have] participated in the
preparation of or have examined and are familiar with (a) the
Indenture; (b) the Underwriting Agreement; (c) the Registration
Statement and the Prospectus filed under the Securities Act; and
(d) the proceedings before [the Commission under the 1935 Act]
[the Arkansas and Tennessee Public Service Commissions] relating
to the issuance and sale of the Securities by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement.
[I have] [We have] examined the orders of the
Commission (or appropriate evidence thereof) relating to the
effectiveness of the Registration Statement and the qualification
of the Indenture under the Trust Indenture Act. [I have] [We
have] also examined such other documents and satisfied ourselves
as to such other matters as [I have] [we have] deemed necessary
in order to render this opinion. In such examination, [I have]
[we have] assumed the genuineness of all signatures, the
authenticity of all documents submitted to [me] [us] as
originals, and the conformity to the originals of the documents
submitted to [me] [us] as certified or photostatic copies. [I
have] [We have] not examined the Securities, except a specimen
thereof, and [I have] [we have] relied upon a certificate of the
Trustee as to the authentication and delivery thereof.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the Underwriting Agreement.
Upon the basis of [my] [our] familiarity with the
foregoing and with the Company's properties and affairs
generally, and subject to the foregoing and to the further
exceptions and qualifications set forth below, [I am] [we are] of
the opinion that:
(1) The Company is a corporation duly organized and validly
existing under the laws of the State of
[Arkansas][Louisiana].
(2) The Company is duly authorized by its [charter],
as amended, to conduct the utility business which it is
described in the Prospectus as conducting, and possesses
adequate, valid and subsisting franchises, certificates of
public convenience and necessity, licenses and permits in
order to, and is duly qualified to, conduct such business in
the State[s] of [Arkansas, Missouri and
Tennessee][Louisiana].
(3) The Company has good and sufficient title to the
properties described as owned by it in and as subject to the
lien of the Indenture (except properties released under the
terms of the Indenture), subject only to Excepted
Encumbrances as defined in the Indenture 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. The description of
such properties set forth in the Indenture is adequate to
constitute the Indenture as a lien thereon; [subject to
paragraph (4) hereof], the Indenture, subject only to such
minor defects and Excepted Encumbrances, constitutes a valid
and direct lien upon said properties, which include
substantially all of the permanent physical properties and
franchises of the Company (other than those expressly
excepted). All permanent physical properties and franchises
(other than those expressly excepted) acquired by the
Company after the date of the Supplemental Indenture will,
upon such acquisition, become subject to the lien of the
Indenture, subject, however, to such Excepted Encumbrances
and to liens, if any, existing or placed thereon at the time
of the acquisition thereof by the Company and except as
limited by bankruptcy law.
[(4) It will be necessary to record the Supplemental
Indenture in [_____ Counties in Arkansas][Orleans and St.
Bernard Parishes in Louisiana] and to file with the
[Recorder of Mortgages for the Parish of Orleans, Louisiana,
a Louisiana Form UCC-3 amending UCC File No. [___________]]
to include the Supplemental Indenture before the liens
created by the Supplemental Indenture become effective as to
and enforceable against third parties. However, all
permanent physical properties and franchises of the Company
(other than those expressly excepted in the Indenture)
presently owned by the Company are subject to the lien of
the Indenture, subject to minor defects and Excepted
Encumbrances of the character referred to in paragraph (3)
hereof.
(5) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the State[s] of [Arkansas, Missouri and
Tennessee][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 our
opinion, make inadequate remedies necessary for the
realization of the benefits of such security, and (ii) as
the same may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and is qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The Securities are legal, valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and are entitled to the
benefit of the security afforded by the Indenture.
(7) The statements made in the Prospectus and the
Prospectus Supplement under the captions "[Description of
Debt Securities]" and "[Description of the [Offered] Debt
Securities]," respectively, insofar as they purport to
constitute summaries of the documents referred to therein,
or of the benefits purported to be afforded by such
documents (including, without limitation, the lien of the
Indenture), constitute accurate summaries of the terms of
such documents and of such benefits in all material
respects.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(9) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which [I] [we] do not pass, the
Registration Statement, at the time it became effective, and
the Prospectus, at the time it was filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act, complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the parts of the
Registration Statement that constitute the statement of
eligibility of the Trustee, upon which [I] [we] do not pass)
the Trust Indenture Act, and the applicable instructions,
rules and regulations of the Commission thereunder or
pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the
documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, such
documents or portions thereof, on the date first filed with
the Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
Registration Statement has become, and on the date hereof
is, effective under the Securities Act; and, to the best of
[my] [our] knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
(10) Appropriate orders have been issued by [the Commission
under the 1935 Act] [the Arkansas and Tennessee Public
Service Commissions] authorizing the issuance and sale of
the Securities and the execution, delivery and performance
by the Company of the Indenture and the Underwriting
Agreement; to the best of [my] [our] knowledge, said orders
are in full force and effect; no further approval,
authorization, consent or other order of any governmental
body (other than under the Securities Act which has been
duly obtained or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Securities by the Company pursuant to the
Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body is legally required to permit the performance by the
Company of its obligations with respect to the Securities or
under the Indenture and the Underwriting Agreement.
(11) The issuance and sale by the Company of the Securities
and the execution, delivery and performance by the Company
of the Underwriting Agreement and the Indenture (a) will not
violate any provision of the Company's [charter] or By-laws,
each 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 Indenture) any of
the assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other
undertaking known to [me] [us] (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of [my]
[our] knowledge (having made due inquiry with respect
thereto), any provision of any order, writ, judgment or
decree of any governmental instrumentality applicable to the
Company (except that various consents of, and filings with,
governmental authorities may be required to be obtained or
made, as the case may be, in connection or compliance with
the provisions of the securities or blue sky laws of any
jurisdiction).
[In passing upon the forms of the Registration
Statement and the Prospectus, we necessarily assume the
correctness, completeness and fairness of the statements made by
the Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in Paragraph 7 above.] In connection with
the preparation by the Company of the Registration Statement and
the Prospectus, [I] [we] have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who examined certain of the financial
statements included or incorporated by reference in the
Registration Statement. [My] [Our] examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to [me] [us] any information which gives [me] [us]
reason to believe that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. [I] [We] do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the parts of the
Registration Statement that constitute the statement of
eligibility of the Trustee or as to the information contained in
the Prospectus Supplement under the caption "[Book-Entry
Disclosure]".
[We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct.] [I] [We] have examined the opinions
of even date herewith rendered to you by Reid & Priest LLP and
Winthrop, Stimson, Putnam & Roberts, and concur in the
conclusions expressed therein insofar as they involve questions
of [___________] law.
[I] [We] are members of the [___________] Bar and do
not hold [myself] [ourselves] out as experts on the laws of any
other state. As to all matters of New York law, [I] [we] have
relied, with your approval, upon the opinion of even date
herewith addressed to you by Reid & Priest LLP of New York, New
York.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Securities, and it may
not be relied upon in any manner by any other person or for any
other purpose, without [my] [our] prior written consent, except
that Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts
may rely on this opinion as to all matters of [___________] law
in rendering their opinions required to be delivered under the
Underwriting Agreement.
Very truly yours,
[________________]
EXHIBIT B
[Letterhead of Reid & Priest LLP]
[____________ __, ____]
[Underwriters]
c/o [Representative
Address]
Ladies and Gentlemen:
With reference to the issuance and sale by
[_________________] (the "Company") to you, pursuant to the
agreement effective [________ __, ____] (the "Underwriting
Agreement"), between the Company and you, of [$____________] in
aggregate principal amount of its [____%] [_________________] due
[________ __, ____] (the "Securities"), issued under the
Company's Indenture for Debt Securities, dated as of [________
__, ____], as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the [_____] Supplemental Indenture dated as of [_______ __, ____]
(the Indenture for Debt Securities as so supplemented being
hereinafter called the "Indenture"), we advise you that we are of
counsel to the Company and in that capacity have participated in
the preparation of or have examined and are familiar with (a) the
Company's [charter] and By-Laws, each as amended; (b) the
Indenture; (c) the Registration Statement and the Prospectus
filed under the Securities Act; (d) the Underwriting Agreement;
and (e) [the proceedings before the Commission under the 1935 Act
relating to the issuance and sale of the Securities by the
Company and the execution and delivery by the Company of the
Indenture and the Underwriting Agreement]. This opinion is
rendered to you at the request of the Company.
We have participated in the preparation of or reviewed
the corporate proceedings with respect to the issuance and sale
of the Securities. We have also examined such other documents
and satisfied ourselves as to such other matters as we have
deemed necessary to enable us 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 originals of the documents submitted to us
as certified or photostatic copies. We have not examined the
Securities, except a specimen thereof, and we have relied upon a
certificate of the Trustee as to the authentication and delivery
thereof. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Underwriting
Agreement.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of
[Arkansas][Louisiana], has all corporate power and authority
necessary to conduct its business as the same is described in the
Prospectus.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(3) The Securities are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(4) The statements made in the Prospectus and the
Prospectus Supplement under the captions "[Description of Debt
Securities]" and "[Description of [Offered] Debt Securities],"
respectively, insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Securities and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Indenture (a) will
not violate any provision of the Company's [charter] or By-laws,
each 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 Indenture) any of the
assets of the Company pursuant to the provisions of, any
mortgage, indenture, lease or other agreement governing
indebtedness of the Company known to us 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
federal or New York law or regulation applicable to the Company
(except that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction).
(7) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee, upon which we do not
pass) the Trust Indenture Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the date
first filed with the Commission, complied as to form in all
material respects with the applicable provisions of the Exchange
Act, and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to said instructions, rules
and regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(8) Appropriate orders have been issued by [the
Commission under the 1935 Act] [the Arkansas and Tennessee Public
Service Commissions] authorizing the issuance and sale of the
Securities and the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement; to the
best of our knowledge, said orders are in full force and effect;
no further approval, authorization, consent or other order of any
governmental body (other than under the Securities Act which has
been duly obtained or in connection or compliance with the
provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required to permit the issuance and sale
of the Securities by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent or
other order of any governmental body is legally required to
permit the performance by the Company of its obligations with
respect to the Securities or under the Indenture and the
Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who examined certain of the financial
statements included or incorporated by reference in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act and at
the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus, as to the statements contained in the Form T-1 filed
as an exhibit to the Registration Statement or as to the
information contained in the Prospectus Supplement under the
caption "[Book-Entry Disclosure]".
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of [___________] law, we have relied upon the opinion
of even date herewith addressed to you by [____________________],
of [___________, ______________], counsel for the Company. We
have not examined into and are not passing upon matters relating
to titles to property, franchises or the lien of the Indenture.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Securities, 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
[_________________], may rely on this opinion as to all matters
of New York law in rendering its opinion required to be delivered
under the Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[_______ __, ____]
[Underwriters]
c/o [Representative
Address]
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of [$____________] in aggregate principal amount of
the [____%] [____________________] due [_____ __, ____] (the
"Securities"), issued by [________________________] (the
"Company") under the Company's Indenture for Debt Securities,
dated as of [______ __, ____], as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, including the [_____] Supplemental
Indenture dated as of [______ __, ____] (said Indenture for Debt
Securities as so amended and supplemented being hereinafter
referred to as the "Indenture"), pursuant to the agreement
between you and the Company effective [_________ __, ____] (the
"Underwriting Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by
[_________________], of [_____________, ___________], counsel for
the Company, as to the matters covered in such opinion relating
to [__________] law. We have reviewed said opinion and believe
that it is satisfactory. We have also reviewed the opinion of
Reid & Priest LLP required by Section 7(d) of the Underwriting
Agreement, and we believe said opinion to be satisfactory.
We have also examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement. 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. We
have not examined the Securities, except a specimen thereof, and
we have relied upon a certificate of the Trustee as to the
authentication and delivery thereof. We have not examined into,
and are expressing no opinion or belief as to matters relating
to, incorporation of the Company, titles to property, franchises
or the lien of the Indenture. Capitalized terms used herein and
not otherwise defined have the meanings ascribed to such terms in
the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and is qualified
under the Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(2) The Securities are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "[Description of Debt
Securities]" and "[Description of Offered Debt Securities],"
respectively, insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Appropriate Orders have been issued by [the
Commission under the 1935 Act] [the Arkansas and Tennessee Public
Service Commissions] authorizing the issuance and sale of the
Securities and to the best of our knowledge, such orders are in
full force and effect; and no further approval, authorization,
consent or other order of any governmental body (other than under
the Securities Act which has been duly obtained or in connection
or compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction) is legally required to permit the
issuance and sale of the Securities by the Company pursuant to
the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee, upon which we do not
pass) the Trust Indenture Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the date
first filed with the Commission, complied as to form in all
material respects with the applicable provisions of the Exchange
Act, and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to said instructions, rules
and regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of the statements made by
the Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 3 above. In connection with
the preparation by the Company of the Registration Statement and
the Prospectus, we have had discussions with certain officers,
employees and representatives of the Company and Entergy Services
Inc., with counsel for the Company and with your representatives.
Our review of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information that gives
us reason to believe that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus, as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus Supplement
under the caption "[Book-Entry Disclosure]".
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
EXHIBIT D
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS PURSUANT TO SECTION 7(
f)(iv) OF THE UNDERWRITING AGREEMENT FOR INCLUSION
IN THE LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
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