[FORM OF PREFERRED SECURITIES UNDERWRITING AGREEMENT]
Exhibit 1.02
_______________ Preferred Securities
Entergy Arkansas Capital I
__% Cumulative Quarterly Income Preferred Securities, Series A
("QUIPS"_)
(Liquidation preference $25.00 per preferred security)
Guaranteed to the extent Entergy Arkansas Capital I
has funds as set forth herein by
Entergy Arkansas, Inc.
UNDERWRITING AGREEMENT
_______ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies & Gentlemen:
The undersigned, Entergy Arkansas Capital I (the
"Trust"), a statutory business trust created under the Business
Trust Act (the "Delaware Act") of the State of Delaware (Title
12, Chapter 38 of the Delaware Code, 12 Del. C Section 3801 et
seq.), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters," which term, when
the context permits shall also include any underwriters
substituted as hereinafter in Section 11 provided), for whom you
are acting as representatives (in such capacity, you shall
hereinafter be referred to as the "Representatives"), an
aggregate of ______________ ___% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25.00 per
preferred security) of the Trust, representing undivided
beneficial interests in the assets of the Trust (the "Preferred
Securities"), as follows:
__________________________
_ QUIPS is a service mark of Goldman, Sachs & Co.
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 Trust shall issue
and sell to each of the Underwriters and each Underwriter shall
purchase from the Trust at the time and place herein specified,
severally and not jointly, the respective numbers of the
Preferred Securities set forth opposite the name of such
Underwriter in Schedule I attached hereto at a purchase price of
$25.00 per Preferred Security.
The Company agrees to issue the Company Securities (as
defined herein) concurrently with the issue and sale of the
Preferred Securities as contemplated herein. The Company hereby
guarantees the timely performance by the Trust of its obligations
under this Section 1. The Trust agrees to purchase the
Debentures (as defined herein) with the proceeds of, together
with the proceeds from the sale by the Trust to the Company of
the Common Securities (as defined herein), and concurrently with,
the issue and sale of the Preferred Securities.
Because the proceeds of the sale of the Preferred
Securities, together with the proceeds from the sale by the Trust
to the Company of the Common Securities, will be used to purchase
the Debentures, the Company hereby agrees to pay on the Closing
Date (as defined herein) to Goldman, Sachs & Co., for the
accounts of the several Underwriters, as compensation for their
arranging the investment therein of such proceeds, an amount
equal to $_____ per Preferred Security (or $________ in the
aggregate).
SECTION 2. Description of Preferred Securities. The
Preferred Securities will be guaranteed by Entergy Arkansas,
Inc., an Arkansas corporation (the "Company" and, together with
the Trust, the "Offerors"), with respect to distributions and
payments upon liquidation, redemption and otherwise (the
"Guarantee") pursuant to, and to the extent set forth in, the
Preferred Securities Guarantee Agreement (the "Guarantee
Agreement"), dated as of _____ __, ____, between the Company and
The Bank of New York, as trustee (the "Guarantee Trustee").
Under an agreement as to expenses and liabilities between the
Company and the Trust, pursuant to the Trust Agreement (as
defined herein), dated as of ________ __, ____ (the "Expense
Agreement"), the Company will irrevocably and unconditionally
guarantee to each person or entity to whom the Trust becomes
indebted or liable the full payment of any costs, expenses or
liabilities of the Trust, subject to certain exceptions therein.
The proceeds from the sale of the Preferred Securities
will be combined with the proceeds from the sale by the Trust to
the Company of its common securities representing undivided
beneficial interests in the assets of the Trust (the "Common
Securities" and, together with the Preferred Securities, the
"Trust Securities"), and will be used by the Trust to purchase
$___________ aggregate principal amount ___% Junior Subordinated
Deferrable Interest Debentures, Series A, Due ______ __, ____
issued by the Company (the "Debentures" and, together with the
Guarantee, the "Company Securities"). The Trust Securities will
be issued pursuant to the Amended and Restated Trust Agreement of
the Trust, dated as of _______ __, ____ (the "Trust Agreement"),
among the Company, as depositor, the Administrative Trustees (as
defined herein), The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as Delaware
trustee (the "Delaware Trustee"), and the holders from time to
time of undivided beneficial interests in the assets of the
Trust. The Debentures will be issued pursuant to an Indenture,
dated as of _______ __, ____ (the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Corresponding
Debenture Trustee"). The Preferred Securities, the Debentures
and the Guarantee are referred to herein as the "Securities."
SECTION 3. Representations and Warranties of the
Offerors. Each of the Offerors jointly and severally represents
and warrants to the several Underwriters, and covenants and
agrees with the several Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power and authority to
conduct the business that it is described in the Prospectus (as
defined herein) as conducting, to own and operate the properties
owned and operated by it in such business, to issue the Company
Securities, to enter into and perform its obligations under this
Underwriting Agreement, the Trust Agreement, the Indenture, the
Guarantee Agreement, the Expense Agreement and the Company
Securities and to purchase, own, and hold the Common Securities
issued by the Trust and to consummate the transactions herein and
therein contemplated.
(b) The Trust has been duly created and is validly
existing as a business trust in good standing under the Delaware
Act, has the power and authority to own its property and to
conduct its business as described in the Prospectus, to issue and
sell the Trust Securities, and to enter into and perform its
obligations under this Underwriting Agreement and the Trust
Securities and to consummate the transactions herein
contemplated; the Trust has no subsidiaries and is duly qualified
to transact business and in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the
transactions contemplated by this Underwriting Agreement and
described in the Prospectus; the Trust is not a party to or
otherwise bound by any agreement other than those described in
the Prospectus, and is not a party to any action, suit or
proceeding of any nature; the Trust is not and will not be
classified as an association taxable as a corporation for United
States federal income tax purposes; the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(c) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-______) for the registration of
$150,000,000 aggregate offering price of the Company's and the
Trust's securities, including the Securities, under the
Securities Act of 1933, as amended (the "Securities Act") (all of
which securities remain unsold), and such registration statement
has become effective. The Offerors qualify for use of Form S-3
for the registration of the Securities. The prospectus forming a
part of the registration statement, at the time such registration
statement (or the most recent amendment thereto filed prior to
the time of effectiveness of this Underwriting Agreement) became
effective, including all documents incorporated by reference
therein at that time pursuant to Item 12 of Form S-3, is
hereinafter referred to as the "Basic Prospectus". In the event
that (i) the Basic Prospectus shall have been amended, revised or
supplemented (but excluding any amendments, revisions or
supplements to the Basic Prospectus relating solely to securities
other than the Securities) prior to the time of effectiveness of
the Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Securities, or
(ii) the Company shall have filed documents pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the registration
statement became effective and prior to the time of effectiveness
of this Underwriting Agreement (but excluding documents
incorporated therein by reference relating solely to securities
other than the Securities), which documents are deemed to be
incorporated by reference in the Basic Prospectus pursuant to
Item 12 of Form S-3, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including, for these purposes, as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Preferred Securities and the
Debentures by a prospectus supplement (a "Prospectus Supplement")
to be filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b) under the Securities Act ("Rule 424(b)"),
are hereinafter referred to as the "Registration Statement" and
the "Prospectus," respectively.
(d) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Offerors will not file any amendment to the
Registration Statement or supplement to the Prospectus (except
any amendment or supplement relating solely to securities other
than the Securities), and (ii) between the time of effectiveness
of this Underwriting Agreement and the Closing Date, the Company
will not file any document that is to be incorporated by
reference in, or any supplement to, the Basic Prospectus, in
either case, without prior notice to the Underwriters and to
Winthrop, Stimson, 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 that 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 securities other than the Securities) pursuant to Item
12 of Form S-3 shall be deemed a supplement to the Prospectus.
(e) The Registration Statement, in the form in which
it became effective, and the Indenture, the Trust Agreement and
the Guarantee Agreement, at such time, fully complied, and the
Prospectus, when delivered to the Underwriters for their use in
making confirmations of sales of the Preferred 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 and (ii) the
date that the Company's most recent Annual Report on Form 10-K
was filed with the Commission under the Exchange Act (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 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 required to be stated therein or necessary
to make the statements therein not misleading. At the time the
Prospectus is delivered to the Underwriters for their use in
making confirmations of sales of the Preferred Securities and at
the Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they 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 (e) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Offerors by
the Underwriters or on behalf of any Underwriter specifically for
use in connection with the preparation of the Registration
Statement or the Prospectus, as they may be then amended or
supplemented, or to any statements in or omissions from the
statements of eligibility on Form T-1 of the Property Trustee,
the Guarantee Trustee and the Corresponding Debenture Trustee,
respectively, as they may be amended, filed as exhibits to the
Registration Statement (the "Form T-1s").
(f) The Common Securities have been duly authorized by
the Trust and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued undivided
beneficial interests in the assets of the Trust, and will be
entitled to the benefits of the Trust Agreement; the issuance of
the Common Securities is not subject to preemptive or other
similar rights; at the Closing Date, all of the issued and
outstanding Common Securities of the Trust will be, directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; the Common
Securities will conform to the description thereof contained in
the Prospectus.
(g) This Agreement has been duly authorized, executed
and delivered by each of the Trust and the Company.
(h) The Trust Agreement has been duly qualified under
the Trust Indenture Act, has been duly authorized by the Company
and, at the Closing Date, will have been duly executed and
delivered by the Company and each of the Administrative Trustees,
and assuming due authorization, execution and delivery of the
Trust Agreement by the Property Trustee and the Delaware Trustee,
will constitute a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the Company and
the Administrative Trustees in accordance with its terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law); the Trust Agreement will conform to the description
thereof in the Prospectus.
(i) The Guarantee Agreement has been duly qualified
under the Trust Indenture Act, and the Guarantee Agreement has
been duly authorized by the Company and, at the Closing Date,
will have been duly executed and delivered by the Company, and
assuming due authorization, execution and delivery of the
Guarantee Agreement by the Guarantee Trustee, will constitute a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law); the Guarantee and the Guarantee Agreement will conform to
the descriptions thereof contained in the Prospectus.
(j) The Preferred Securities have been duly authorized
by the Trust and, when issued and delivered against payment
therefor in accordance with the provisions of this Agreement and
the Trust Agreement, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, and
will be entitled to the benefits of the Trust Agreement; the
issuance of the Preferred Securities is not subject to preemptive
or other similar rights; holders of Preferred Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; the
Preferred Securities will conform to the description thereof
contained in the Prospectus.
(k) The Indenture has been duly qualified under the
Trust Indenture Act, has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered
by the Company, and assuming due authorization, execution and
delivery of the Indenture by the Corresponding Debenture Trustee,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); the Indenture will conform to
the description thereof contained in the Prospectus.
(l) The Debentures have been duly authorized and, on
the Closing Date, will have been duly executed by the Company
and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as described in
the Prospectus, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with
their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture; the Debentures will conform to the
description thereof contained in the Prospectus.
(m) The Expense Agreement has been duly authorized by
the Company and, at the Closing Date, will have been duly
executed and delivered by the Company, and will constitute a
valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law); the Expense Agreement will conform to the description
thereof contained in the Prospectus.
(n) ___________, ______________ and ___________, as
administrative trustees (the "Administrative Trustees") of the
Trust, are employees of the Company and have been duly authorized
by the Company to execute and deliver the Trust Agreement.
(o) The Trust is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(p) The Trust is not in violation of its Certificate
of Trust filed with the State of Delaware on May __, 1996; the
execution, delivery and performance by the Company and the Trust
of their respective obligations under this Underwriting
Agreement, the Trust Agreement, the Trust Securities, the
Indenture, the Guarantee Agreement, the Company Securities and
the Expense 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 or the Trust is now a party.
(q) Except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, the
Company possesses adequate franchises, licenses, permits, and
other rights to conduct its respective business and operations as
now conducted, without any known conflicts with the rights of
others that could have an adverse effect on the Company.
SECTION 4. Offering. The Offerors are advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities
as soon after the effectiveness of this Underwriting Agreement as
in their judgment the Underwriters deem advisable. The Offerors
are further advised by the Representatives that the Preferred
Securities will be offered to the public at the initial public
offering price specified in the Prospectus Supplement.
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of certificates for the Preferred
Securities and payment of the purchase price therefor by 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 Offerors and the Representatives, 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."
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and in such
denominations as the Underwriters shall request not later than
two full business days prior to the Closing Date. The
certificates evidencing the Preferred Securities shall be
delivered to the Representatives through the facilities of The
Depository Trust Company in New York, New York ("DTC") for the
account of the Representatives with any transfer taxes payable in
connection with the transfer of the Preferred Securities duly
paid, against payment of the purchase price therefor.
On the Closing Date, the Company will pay, or cause to
be paid, the commission payable at such time to the Underwriters
pursuant to Section 1 hereof by wire transfer in immediately
available funds to Goldman, Sachs & Co., for the accounts of the
several Underwriters.
SECTION 6. Covenants of the Offerors. Each of the
Offerors jointly and severally covenants and agrees with the
several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Representatives 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, or a conformed copy thereof, 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 the
Representatives 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 either of
the Offerors shall have received notice. Each of the Offerors
will use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company or the Trust, or of which the Company or
the Trust shall be advised by the Representatives in writing,
shall occur which in the opinion of the Company 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
Preferred Securities, the Company will amend or supplement the
Prospectus by either (i) preparing and filing with the Commission
and furnishing to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments to
the Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will supplement
or amend the Prospectus, so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. Unless
such event relates solely to the activities of the Underwriters
(in which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 6(d) shall be borne by the Company
until the expiration of nine months from the time of
effectiveness of this Underwriting Agreement, and such expenses
shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make
generally available to the Trust's security holders, as soon as
practicable, an earning statement (which need not be audited)
covering a period of at least twelve months beginning after the
"effective date of the registration statement" within the meaning
of Rule 158 under the Securities Act, which earning statement
shall be in such form, and be made generally available to
security holders in such a manner, as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Offerors will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Preferred Securities and the Debentures for offer and sale, under
the blue sky laws of such jurisdictions as the Representatives
may reasonably designate, provided that the Offerors 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 Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes incident to the performance of each
Offeror's obligations under this Agreement including, but not
limited to, (i) the preparation and filing of the Registration
Statement and any post-effective amendment thereto, (ii) the
printing, issuance and delivery of the certificates for the
Preferred Securities to the Underwriters, (iii) legal counsel
relating to the qualification of the Preferred Securities and the
Debentures under the blue sky laws of various jurisdictions, in
an amount not to exceed $6,000, (iv) the printing and delivery to
the Underwriters of reasonable quantities of copies of the
Registration Statement, the preliminary (or any supplemental)
blue sky survey, any preliminary prospectus supplement relating
to the Preferred Securities and the Prospectus and any amendment
or supplement thereto, except as otherwise provided in paragraph
(d) of this Section 6, (v) the rating of the Preferred Securities
and the Debentures by one or more nationally recognized
statistical rating agencies, (vi) filings or other notices (if
any) with or to, as the case may be, the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering, and (vii) the listing of the
Preferred Securities and, if applicable, the Debentures on the
New York Stock Exchange (the "NYSE") and the registration thereof
under the Exchange Act in accordance with Sections 6(i) and 6(j)
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 (A) the reasonable fees and
expenses of Counsel for the Underwriters, whose fees and expenses
the Underwriters agree to pay in any other event, and (B)
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding $15,000, incurred in contemplation of the performance
of this Underwriting Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account of
loss of anticipated profits.
(h) Each of the Offerors will not offer, sell,
contract to sell or otherwise dispose of any Preferred
Securities, any other beneficial interests in the assets of the
Trust, or any preferred securities or any other securities of the
Trust or the Company that are substantially similar to the
Preferred Securities, including any guarantee of such securities,
or any securities convertible into or exchangeable for or that
represent the right to receive securities, preferred securities
or any such substantially similar securities of either the Trust
or the Company, without the consent of the Representatives until
the earlier to occur of (i) thirty (30) days after the Closing
Date and (ii) the date of the termination of the trading
restrictions on the Preferred Securities, as determined by the
Underwriters. The Representatives agree to notify the Offerors
of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause
the Preferred Securities to be duly authorized for listing on the
NYSE, subject to notice of issuance, and to be registered under
the Exchange Act; if the Preferred Securities are exchanged for
Debentures, the Company will use its best efforts to have the
Debentures listed on the exchange or other organization on which
the Preferred Securities were then listed, and to have the
Debentures registered under the Exchange Act.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Preferred 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 Offerors and of any
certificates furnished by the Offerors 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 Offerors and the
Representatives.
(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 Offerors 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 and an authorized
representative of the Trust, 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 or
the Trust, as the case may be, 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,
orders of the Public Service Commissions of Arkansas and
Tennessee authorizing the issuance and sale of the Securities on
the terms set forth in, or contemplated by, this Underwriting
Agreement, the Indenture, the Trust Agreement, the Guarantee
Agreement and the Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from Friday, Eldredge & Clark 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 Offerors and the
Representatives 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
Preferred Securities, with changes therein to reflect such
supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Richards, Layton & Finger, special Delaware counsel
to the Offerors, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit C hereto (i) with
such changes therein as may be agreed upon by the Offerors and
the Representatives, 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
Preferred Securities, with changes therein to reflect such
supplementation.
(f) 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 D hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(g) At the Closing Date, the Underwriters shall have
received from Emmet, Marvin & Martin, counsel for the Property
Trustee and the Guarantee Trustee, an opinion, dated the Closing
Date, covering such matters as the Underwriters or Counsel for
the Underwriters shall reasonably request relating to the Trust
Agreement and the Guarantee Agreement.
(h) 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, 199_ to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, for the
redemption or purchase of preferred stock for sinking fund
purposes, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes or decreases
as set forth in such letter, identifying the same and specifying
the amount thereof; and (iv) stating that they have compared
specific dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x) set
forth in the Prospectus and (y) set forth in documents filed by
the Company pursuant to Sections 13, 14 or 15(d) of the Exchange
Act as specified in Exhibit E hereto, in each case, to the extent
that such amounts, numbers, percentages and information may be
derived from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
[(i) 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 Offerors.]
(j) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, (ii) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(k) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by an
authorized representative of the Trust, to the effect that (i)
the representations and warranties of the Trust contained herein
are true and correct, (ii) the Trust has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Trust at or prior to the
Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Trust and
there has not been any material transaction entered into by the
Trust, 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.
(l) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture.
(m) 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(h) hereof.
(n) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company or the Trust that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Preferred Securities.
(o) 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.
(p) On or prior to the Closing Date, Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have
publicly assigned to the Preferred Securities ratings of ___ and
___, respectively, which ratings shall be in full force and
effect on the Closing Date.
(q) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Preferred Securities shall
have become effective under the Exchange Act.
(r) All legal matters in connection with the issuance
and sale of the Preferred Securities shall be satisfactory in
form and substance to Counsel for the Underwriters.
(s) The Offerors 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
Offerors. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Obligations of the Offerors.
The obligations of the Offerors 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) There shall have been issued and, at the Closing
Date, there shall be in full force and effect orders of the
Public Service Commissions of Arkansas and Tennessee authorizing
the issuance and sale of the Securities on the terms set forth
in, or contemplated by, this Underwriting Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement 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 Offerors upon notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Offerors shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or alleged
untrue statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b)), or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Offerors 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 to
any thereof or arising out of, or based upon, statements in or
omissions from the Form T-1s; 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 Preferred Securities to any person in respect of
the Basic Prospectus or the Prospectus as supplemented or
amended, furnished by any Underwriter to a person to whom any of
the Preferred 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 Offerors
to the Underwriters pursuant to Section 6(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating solely
to securities other than the Securities and any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) The Company agrees to indemnify the Trust against
any and all losses, claims, damages or liabilities that may
become due from the Trust under Section 9(a) hereof.
(c) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, 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
Offerors 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.
(d) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) If the indemnification provided for under
subsections (a), (b), (c) or (d) 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 Offerors and the Underwriters from the offering
of the Preferred 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 Offerors 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 Offerors 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 Offerors 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 Offerors 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 Offerors 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 Offerors and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(e) 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(e), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred
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(e) 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
Offerors 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 Offerors 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 Preferred 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 Preferred Securities that it has agreed
to purchase and pay for hereunder, and the aggregate amount of
Preferred Securities that such defaulting Underwriter agreed but
failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Preferred Securities, the other
Underwriters shall be obligated to purchase the Preferred
Securities that such defaulting Underwriter agreed but failed or
refused to purchase; provided that in no event shall the amount
of Preferred Securities that any Underwriter has agreed to
purchase pursuant to Schedule I hereof be increased pursuant to
this Section 11 by an amount in excess of one-ninth of such
amount of Preferred Securities without written consent of such
Underwriter. If any Underwriter shall fail or refuse to purchase
Preferred Securities and the aggregate amount of Preferred
Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of the Preferred Securities,
the Offerors shall have the right (a) to require the non-
defaulting Underwriters to purchase and pay for the respective
aggregate amount of Preferred Securities that it had severally
agreed to purchase hereunder, and, in addition, the aggregate
amount of Preferred Securities that the defaulting Underwriter
shall have so failed to purchase up to an aggregate amount
thereof equal to one-ninth of the respective aggregate amount of
Preferred 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 aggregate amount of
Preferred 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 Offerors shall exercise
its rights under clause (a) and/or (b) above, the Offerors shall
give written notice thereof to the Representatives within 24
hours (excluding any Saturday, Sunday, or legal holiday) of the
time when the Offerors learn of the failure or refusal of any
Underwriter to purchase and pay for its respective aggregate
amount of Preferred Securities, and thereupon the Closing Date
shall be postponed for such period, not exceeding three business
days, as the Offerors shall determine. In the event the Offerors
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 Offerors shall be deemed to have elected to terminate
this Underwriting Agreement. In the absence of such election by
the Offerors, this Underwriting Agreement will, unless otherwise
agreed by the Offerors 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 the Representatives to the Offerors if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading of the Preferred Securities or
trading in securities generally shall have been suspended on the
NYSE 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 NYSE by The
New York Stock Exchange, Inc., the Commission or other
governmental authority, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any
calamity or crisis that, in the judgment of the Representatives,
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 the Representatives, impracticable to market the
Preferred Securities. This Underwriting Agreement shall also be
subject to termination, upon notice by the Representatives as
provided above, if, in the judgment of the Representatives, the
subject matter of any amendment or supplement (prepared by the
Offerors) to the Prospectus (except for information relating
solely to the manner of public offering of the Preferred
Securities, to the activity of the Underwriters or to the terms
of any series of securities of the Offerors other than the
Preferred Securities) filed or issued after the effectiveness of
this Underwriting Agreement by the Offerors shall have materially
impaired the marketability of the Preferred 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 Offerors and to the
Representatives. 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 Offerors, 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 Preferred 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 Goldman, Sachs & Co. at the address set forth at
the beginning of this Underwriting Agreement (to the attention of
its General Counsel) or, if to the Offerors, shall be mailed or
delivered to it at 425 West Capitol Avenue, 40th Floor, Little
Rock, Arkansas 72201, Attention: Treasurer, or, if to Entergy
Services, Inc., shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
Entergy Arkansas, Inc.
By:
Name:
Title:
Entergy Arkansas Capital I
By:
Title:
By:
Title:
Accepted as of the date first above written:
Goldman, Sachs & Co.
[Representatives]
By: Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
As Representatives of the other several
Underwriters named in Schedule I hereto
SCHEDULE I
Entergy Arkansas Capital I
___% Cumulative Quarterly Income Preferred Securities, Series A
Name Amount
Total ________________
EXHIBIT A
[Letterhead of Friday, Eldredge & Clark]
________ __,_____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, and Richards, Layton & Finger, Wilmington, Delaware, have
acted as counsel for Entergy Arkansas, Inc. (the "Company") and
Entergy Arkansas Capital I, a statutory business trust organized
under the laws of the State of Delaware (the "Trust"), in
connection with the issuance and sale to the several Underwriters
pursuant to the Underwriting Agreement, effective ________ __,
____ (the "Underwriting Agreement"), among the Company, the Trust
and you, as the Representatives of the several Underwriters, of
an aggregate of % Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25 per
preferred security) of the Trust (the "Preferred Securities").
This opinion is rendered to you at the request of the Company and
the Trust. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Guarantee; (g) the Expense
Agreement; (h) the Registration Statement and Prospectus filed
under the Securities Act; (i) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(j) the proceedings before and the orders entered by the Public
Service Commissions of Arkansas and Tennessee relating to the
issuance and sale of the Securities. We have also examined or
caused to be examined such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in
order to render this opinion. We have not examined the
Debentures, except a specimen thereof, and we have relied upon a
certificate of the Corresponding Debenture 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, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to us as
copies. In making our examination of documents and instruments
executed or to be executed by persons other than the Company and
the Trust, 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 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. 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 amendment.
As to questions of fact material to the opinions
expressed herein, we have relied upon certificates and
representations of officers of the Company and the Trust
(including but not limited to those contained in the Underwriting
Agreement, the Indenture, the Trust Agreement, the Expense
Agreement, the Guarantee Agreement and the Guarantee and
certificates delivered at the closing of the sale of the
Preferred Securities) 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 or the attention of any other attorneys acting
for or on behalf of the Company or the Trust or any of its
affiliates that have participated in the negotiation of the
transactions contemplated by the Underwriting Agreement, the
Indenture, the Trust Agreement, the Expense Agreement, the
Guarantee Agreement and the Guarantee, in the preparation of the
Registration Statement and the Prospectus or in the preparation
of this opinion letter that would give us, or them, actual
knowledge that would contradict such opinions. However, except
to the extent necessary in order to give the opinions hereinafter
expressed, neither we nor they have undertaken any independent
investigation to determine the existence or absence of such
facts, and no inference as to knowledge of the existence or
absence of such facts (except to the extent necessary in order to
give the opinions hereinafter expressed) should be assumed.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, 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
Arkansas, has due corporate power and authority to conduct the
business that it is described as conducting in the Prospectus, to
own and operate the properties owned and operated by it in such
business, to issue the Company Securities, to enter into and
perform its obligations under the Underwriting Agreement, the
Trust Agreement, the Indenture, the Expense Agreement, the
Guarantee Agreement and the Company Securities, to purchase, own,
and hold the Common Securities issued by the Trust and to
consummate the transactions therein contemplated, and is duly
qualified to conduct such business in the States of Arkansas,
Missouri and Tennessee.
(2) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy Arkansas Capital I", "Certain
Terms of the Series A Preferred Securities", "Certain Terms of
the Series A Debentures", "The Issuers", "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Description of Corresponding Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees" insofar as they purport to constitute summaries
of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material
respects.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and 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
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and are entitled to the benefits provided by the
Indenture.
(4) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether 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.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether 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 Underwriting Agreement, the Trust Agreement
and the Expense Agreement have been duly authorized, executed and
delivered by the Company.
(7) The Trust Agreement is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(8) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement, the Guarantee Agreement and the
Guarantee (a) will not violate any provision of the Company's
Restated Articles of Incorporation or By-laws, as amended, (b)
will not violate any provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in any of the
assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other undertaking
known to 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 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).
(9) 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(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1s, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; 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.
(10) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee authorizing the
issuance and sale of the Securities; 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 orders of the Commission under the
Securities Act and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities; and
no further approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Trust of its obligations with respect to the Preferred
Securities, or by the Company of its obligations with respect to
the Debentures or the Guarantee or under the Indenture, the
Underwriting Agreement, the Trust Agreement, the Expense
Agreement or the Guarantee Agreement.
(11) All of the issued and outstanding Common
Securities of the Trust are owned of record by the Company.
In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
have had discussions with certain of the officers and
representatives of the Company and the Trust, with other counsel
for the Company and the Trust, 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 such discussions did not
disclose to us any information which gives us reason to believe
that the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1s or as to the information contained in the
Prospectus under the captions "Description of the Preferred
Securities -- Book-entry Issuance" and "Certain United States
Federal Income Tax Considerations."
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. 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 Arkansas
law.
We are members of the Arkansas Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of New York law, 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 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 Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts may rely on this opinion as to all matters of
Arkansas law in rendering their opinions required to be delivered
under the Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We, together with Friday, Eldredge & Clark, Little
Rock, Arkansas, and Richards, Layton & Finger, Wilmington,
Delaware, have acted as counsel for Entergy Arkansas, Inc. (the
"Company") and Entergy Arkansas Capital I, a statutory business
trust organized under the laws of the State of Delaware (the
"Trust"), in connection with the issuance and sale to the several
Underwriters pursuant to the Underwriting Agreement, effective
________ __, ____ (the "Underwriting Agreement"), among the
Company, the Trust and you, as Representatives of the several
Underwriters, of an aggregate of ____________ % Cumulative
Quarterly Income Preferred Securities, Series A (liquidation
preference $25 per preferred security) of the Trust (the
"Preferred Securities"). This opinion is rendered to you at the
request of the Company. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Guarantee; (g) the Expense
Agreement; (h) the Registration Statement and Prospectus filed
under the Securities Act; (i) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement; and
(i) the proceedings before and the orders entered by the Public
Service Commissions of Arkansas and Tennessee relating to the
issuance and sale of the Securities. 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. We have not examined the Debentures, except
a specimen thereof, and we have relied upon a certificate of the
Corresponding Debenture Trustee as to the authentication and
delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(2) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and are legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and are entitled to the benefits provided by the
Indenture.
(3) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(4) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(5) The Trust Agreement is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy Arkansas Capital I", "Certain
Terms of the Series A Preferred Securities", "Certain Terms of
the Series A Debentures", "The Issuers", "Description of Junior
Subordinated Debentures", "Description of Preferred Securities",
"Description of Guarantees", "Description of Corresponding Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees" 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.
(7) The statements made in the Prospectus under the
caption "Certain United States Federal Income Tax Considerations"
constitute a fair and accurate summary of the matters addressed
therein, based upon current law and the assumptions stated or
referred to therein.
(8) The Trust is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(9) 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(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1s, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; 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.
(10) Appropriate orders have been entered by the Public
Service Commissions of Arkansas and Tennessee authorizing the
issuance and sale of the Securities; 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 orders of the Commission under the
Securities Act and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities; and
no further approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Trust of its obligations with respect to the Preferred
Securities, or by the Company of its obligations with respect to
the Company Securities or under the Indenture, the Underwriting
Agreement, the Trust Agreement, the Expense Agreement or the
Guarantee 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 the Trust 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 paragraphs (6) and
(7) above. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
have had discussions with certain officers and representatives of
the Company and the Trust, with other counsel for the Company and
the Trust, 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 such discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, as to
the Form T-1s or as to the information contained in the
Prospectus under the captions "Description of the Preferred
Securities -- Book-entry Issuance."
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. 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 Arkansas law, we have, with your
consent, relied upon the opinion of even date herewith of Friday,
Eldredge & Clark, counsel for the Company. We have not examined
into and are not passing upon matters relating to the
incorporation of the Company.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent, except that Friday, Eldredge & Clark, Little Rock,
Arkansas, may rely on this opinion as to all matters of New York
law in rendering her opinion required to be delivered under the
Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
EXHIBIT C
[Letterhead of Richards, Layton & Finger]
___________ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as special Delaware counsel for Entergy
Arkansas, Inc., an Arkansas corporation (the "Company"), and
Entergy Arkansas Capital I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein. We
are furnishing this opinion to you at the request of the Company
and the Trust.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of executed and conformed counterparts, or copies
otherwise proved to our satisfaction, of the following:
(a) The Certificate of Trust of the Trust, dated
_______ __, ____ (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on ____________ __, ____;
(b) The Trust Agreement of the Trust, dated as of
________ __, ____ between the Company and the trustees of the
Trust named therein;
(c) The Amended and Restated Trust Agreement of the
Trust, dated as of ________ __, ____, between the trustees of the
Trust named therein, the Company and the holders, from time to
time, of undivided beneficial interests in the assets of the
Trust (including the Certificate Evidencing Common Securities of
the Trust attached as Exhibit B thereto and the Certificate
Evidencing Preferred Securities of the Trust attached as Exhibit
D thereto) (collectively, the "Trust Agreement");
(d) The Underwriting Agreement, dated __________ __,
____ (the "Underwriting Agreement"), among the Trust, the Company
and you, as Representatives of the several Underwriters named in
Schedule I thereto;
(e) The Prospectus, dated _______ __, ____ (the
"Prospectus") and the Prospectus Supplement, dated ________ __,
____ (the "Prospectus Supplement"), relating to the ____%
Cumulative Quarterly Income Preferred Securities, Series A of the
Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated _________ __, ____, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraph (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents,
the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph (1) below, the due
organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents
examined by us under the laws of the jurisdiction governing its
organization or formation, (iii) the legal capacity of natural
persons who are parties to the documents examined by us, (iv)
except to the extent provided in paragraph (2) below, that each
of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations
under, such documents, (v) except to the extent provided in
paragraph (9) below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (each, a "Preferred Security Holder"
and collectively, the "Preferred Security Holders") of a
Preferred Securities Certificate for the Preferred Security and
the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement, (vii) the receipt by each Person to whom a
____% Common Security of the Trust representing common undivided
beneficial interests in the assets of the Trust (each, a "Common
Security" and collectively, the "Common Securities") is to be
issued by the Trust of a Common Securities Certificate for the
Common Security and the payment for the Common Security acquired
by it, in accordance with the Trust Agreement, the Prospectus and
the Prospectus Supplement, and (viii) that the Preferred
Securities and the Common Securities are issued and sold in
accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the
preparation of the Prospectus or the Prospectus Supplement and
assume no responsibility for their contents.
This opinion is limited to the laws of the State of
Delaware (including the securities laws of the State of
Delaware), and we have not considered and expound no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
(1) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required as of the date
hereof under the Delaware Business Trust Act with respect to the
creation and valid existence of the Trust as a business trust
have been made.
(2) Under the Trust Agreement and the Delaware
Business Trust Act, the Trust has the trust power and authority
(i) to own property and to conduct its business, all as described
in the Prospectus and the Prospectus Supplement, (ii) to issue
and sell Preferred Securities and Common Securities in accordance
with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (iii) to execute and deliver, and to perform its
obligations under, the Underwriting Agreement, the Preferred
Securities and the Common Securities, and to consummate the
transactions contemplated therein.
(3) Assuming that the Trust Agreement has been duly
authorized, executed and delivered by the parties thereto, the
Trust Agreement constitutes a valid and binding obligation of
each of the Company and the Administrative Trustees, and is
enforceable against the Company and each of the Administrative
Trustees, in accordance with its terms.
(4) The Common Securities have been duly authorized by
the Trust Agreement and are validly issued common undivided
beneficial interests in the assets of the Trust and entitled to
the benefits of the Trust Agreement.
(5) The Preferred Securities have been duly authorized
by the Trust Agreement and are validly issued and, subject to the
qualifications set forth in paragraph (6) below, fully paid and
nonassessable preferred undivided beneficial interests in the
assets of the Trust and entitled to the benefits of the Trust
Agreement.
(6) The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated, pursuant to the Trust
Agreement, (i) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers
or exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates, and
(ii) to provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
(7) Under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Preferred Securities and
the Common Securities is not subject to preemptive rights.
(8) The issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the execution,
delivery and performance by the Trust of the Underwriting
Agreement, and the consummation of the transactions contemplated
by the Underwriting Agreement, do not violate (a) the Certificate
or the Trust Agreement, or (b) any applicable Delaware law, rule
or regulation.
(9) Under the Trust Agreement and the Delaware
Business Trust Act, the issuance and sale by the Trust of the
Preferred Securities and the Common Securities, the execution and
delivery by the Trust of the Underwriting Agreement, and the
performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the
Trust.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to the reliance upon this opinion as
to matters of Delaware law by Winthrop, Stimson, Putnam &
Roberts, as if it were addressed to them, in rendering their
opinion to you of even date herewith. Except as stated above,
without our prior written consent, this opinion may not be relied
upon by any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
Goldman, Sachs & Co.
[Representatives]
As Representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of an aggregate amount of % Cumulative Quarterly
Income Preferred Securities, Series A (liquidation preference $25
per preferred security) (the "Preferred Securities"), issued by
Entergy Arkansas Capital I, a statutory business trust organized
under the laws of the State of Delaware (the "Trust"), pursuant
to the agreement among you, as the Representatives of the several
Underwriters, Entergy Arkansas, Inc., an Arkansas corporation
(the "Company") and the Trust 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 (i)
an opinion of even date herewith addressed to you of Friday,
Eldredge & Clark, counsel for the Company and the Trust, as to
the matters covered in such opinion relating to Arkansas law and
(ii) an opinion of even date herewith addressed to you of
Richards, Layton & Finger, special Delaware counsel for the
Company and the Trust, as to the matters covered in such opinion
relating to Delaware law. We have reviewed said opinions and
believe that they are 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 the Trust and statements in
the Registration Statement hereinafter mentioned. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
the conformity to the originals of the documents submitted to us
as certified or photostatic copies, and the correctness of all
statements of fact contained in all such original or copied
documents. We have not examined the certificates representing
the Preferred Securities or the Debentures except specimens
thereof, and we have relied upon a certificate of the paying
agent for the Preferred Securities as to the registration of the
Preferred Securities and upon a certificate of the Corresponding
Debenture Trustee as to the authentication and delivery of the
Debentures. 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 Preferred Securities have been duly authorized
by the Trust Agreement and are validly issued and fully paid and
nonassessable preferred undivided beneficial interests in the
assets of the Trust and entitled to the benefits of the Trust
Agreement. The holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
holders of the Preferred Securities may be obligated, pursuant to
the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities
certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and, to the best of our knowledge, the Indenture is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(3) The statements made in the Prospectus under the
captions "Certain Terms of the Series A Preferred Securities",
"Certain Terms of the Series A Debentures", "Description of
Junior Subordinated Debentures", "Description of Preferred
Securities", "Description of Guarantees", "Description of
Corresponding Junior Subordinated Debentures" and "Relationship
Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees" insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action on the part of the
Company, and 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 creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits provided by the Indenture.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or
at law), and, to the best of our knowledge, the Guarantee
Agreement is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted or
threatened by the Commission.
(6) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(7) Appropriate orders have been issued by the Public
Service Commissions of Arkansas and Tennessee 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 orders of the Commission under the
Securities Act and the Exchange Act, which have been duly
obtained, or in connection or compliance with the provisions of
the securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities.
(8) 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(b) complied as to form in all
material respects with the applicable requirements of the
Securities Act and (except with respect to the Form T-1s, upon
which we do not pass) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date they were first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; to the best of our knowledge, the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and 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 statements made by the
Company and the Trust and the information included or
incorporated by reference in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
hereof. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
had discussions with certain officers, employees and
representatives of the Company, the Trust and Entergy Services
Inc., with counsel for the Company and the Trust, and with your
representatives. Our review of the Registration Statement and
the Prospectus, and such discussions, did not disclose to us any
information that gives us reason to believe that the Registration
Statement, at the Effective Date, contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the time first filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424(b) and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or Prospectus, as to the Form T-1s or as to the
information contained in the Prospectus under the captions
"Description of Preferred Securities -- Book-entry Issuance" and
"Certain United States Federal Income Tax Considerations."
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 E
ITEMS PURSUANT TO SECTION 7(h)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
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