UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
AMENDMENT NO. 1 TO
CERTIFICATE PURSUANT TO RULE 24
In the Matter of
ENTERGY MISSISSIPPI, INC.
File No. 70-8719
(Public Utility Holding Company Act of 1935)
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that
the transactions described below, which were proposed by
Entergy Mississippi, Inc. ("Company") in its Application-
Declaration, as amended, in the above file, have been
carried out in accordance with the terms and conditions of
and for the purposes represented by said Application-
Declaration, as amended, and pursuant to the order of the
Securities and Exchange Commission with respect thereto
dated January 30, 1996.
On June 17, 1997 the Company issued and sold by
competitive bid, to Bear, Stearns & Co. Inc., as
underwriter, $65 million in aggregate principal amount of
the Company's General and Refunding Bonds, 6 7/8% Series due
June 1, 2002 ("Bonds"), issued pursuant to the Eleventh
Supplemental Indenture to the Company's Mortgage and Deed of
Trust, as supplemented.
Exhibit B-2(a) inadvertently was not included in
the Rule 24 Certificate filed in matter on June 27, 1997.
Accordingly, Exhibit B-2(a) is filed pursuant to this
amendment and attached hereto and incorporated by reference:
Exhibit B-2(a) Execution form of
Underwriting Agreement
relating to the Bonds.
IN WITNESS WHEREOF, Entergy Mississippi, Inc. has
caused this amendment to be executed this 16th day of July,
1997.
By: /s/William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
UNDERWRITING AGREEMENT
FOR THE PURCHASE OF GENERAL AND REFUNDING MORTGAGE BONDS
OF ENTERGY MISSISSIPPI, INC.
------------------------
ENTERGY MISSISSIPPI, INC.
c/o Reid & Priest LLP
40 West 57th Street
New York, New York 10019
SECTION 1. Purchase and Sale. On the basis of the representations and
warranties, and subject to the terms and conditions set forth in this agreement
("Underwriting Agreement"), each Underwriter (defined below) shall purchase from
Entergy Mississippi, Inc. ("Company"), severally and not jointly, and the
Company shall sell to each of the Underwriters (defined below), the principal
amount of the Company's General and Refunding Mortgage Bonds (defined below) set
forth opposite the name of such Underwriter in Schedule I hereto at the price
specified on the signature page of the Underwriting Agreement, plus accrued
interest at the rate specified on the signature page of the Underwriting
Agreement from the first day of the month in which such Bonds are issued, to the
Closing Date (hereinafter defined). The aggregate principal amount of such
General and Refunding Mortgage Bonds, which is also set forth on the signature
page of the Underwriting Agreement, is hereinafter referred to as the "Bonds".
SECTION 2. Underwriters and Representative. The term "Underwriters", as
used herein, shall be deemed to mean the several persons, firms or corporations
named in Schedule I hereto (including any substituted Underwriters under the
provisions of Section 6), and the term "Representative", as used herein, shall
be deemed to mean the representative or representatives of such Underwriters by
whom or on whose behalf the Underwriting Agreement is signed. If there shall be
only one person, firm or corporation named in said Schedule I, the term
"Underwriters" and the term "Representative", as used herein, shall mean that
person, firm or corporation. All obligations of the Underwriters are several and
not joint. The use of the term "Underwriter" herein shall not be deemed to
establish or admit that a purchaser of the Bonds is an "underwriter" of the
Bonds as such term is defined in and used under the Securities Act of 1933, as
amended ("Securities Act").
SECTION 3. Description of Bonds. The Company proposes to issue and sell the
Bonds under its Mortgage and Deed of Trust, dated as of February 1, 1988, with
Bank of Montreal Trust Company, as Corporate Trustee, and Mark F. McLaughlin
(successor to Z. George Klodnicki), as Co-Trustee (the "Co-Trustee" and,
together with the Corporate Trustee, the "Trustees"), as heretofore amended and
supplemented by all indentures amendatory thereof and supplemental thereto, and
as it will be further amended and supplemented by the Eleventh Supplemental
Indenture, dated as of June 1, 1997 (the "Supplemental Indenture"). Said
Mortgage and Deed of Trust as so amended and supplemented is hereinafter
referred to as the "Mortgage." The Bonds and the Supplemental Indenture shall
have the terms and provisions described in the Prospectus (as defined herein),
provided that subsequent to the date hereof and prior to the Closing Date the
form of the Supplemental Indenture may be amended by mutual agreement between
the Company and the Underwriters.
SECTION 4. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) It has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 33-50507) for
the registration of $282,500,000 aggregate par value and/or aggregate
principal amount of the Company's Preferred Stock, Cumulative, $100 Par
Value (the "Preferred Stock") and/or the Company's General and Refunding
Mortgage Bonds (the "General and Refunding Mortgage Bonds") under the
Securities Act of 1933, as amended (the "Securities Act"), and the
registration statement has become effective. Before giving effect to the
issuance and sale of the
Bonds, an aggregate of $180,000,000 of the Preferred Stock and/or the
General and Refunding Mortgage Bonds remains unsold under such registration
statement. The Company qualifies for use of Form S-3 for the registration
of the Bonds, and the Bonds are registered under the Securities Act. The
combined prospectus forming a part of such registration statement and
relating, pursuant to Rule 429 under the Securities Act, to $350,000,000
aggregate par value and/or aggregate principal amount of the Preferred
Stock and/or General and Refunding Mortgage Bonds, including the Bonds, at
the time the registration statement (or the most recent amendment thereto
filed prior to the time of effectiveness of this Underwriting Agreement)
became effective, including all documents incorporated by reference therein
at that time pursuant to Item 12 of Form S-3, is hereinafter referred to as
the "Basic Prospectus." In the event that (i) the Basic Prospectus shall
have been amended, revised or supplemented (but excluding any supplements
to the Basic Prospectus relating solely to General and Refunding Mortgage
Bonds other than the Bonds or relating solely to shares of Preferred Stock)
prior to the time of effectiveness of this Underwriting Agreement,
including without limitation by any preliminary prospectus supplement
relating to the Bonds or (ii) the Company shall have filed documents
pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), after the time such registration statement
became effective and prior to the time of effectiveness of this
Underwriting Agreement (but excluding documents incorporated therein by
reference relating solely to General and Refunding Mortgage Bonds other
than the Bonds or relating solely to shares of Preferred Stock), which are
deemed to be incorporated by reference in the Basic Prospectus pursuant to
Item 12 of Form S-3, the term "Basic Prospectus" as used herein shall also
mean such prospectus as so amended, revised or supplemented and reflecting
such incorporation by reference. Such registration statement, in the form
in which it became effective and as it may have been amended by all
amendments thereto as of the time of effectiveness of this Underwriting
Agreement, and the Basic Prospectus as it shall be supplemented to reflect
the terms of the offering and sale of the Bonds by a prospectus supplement
(the "Prospectus Supplement") to be transmitted for filing to the
Commission pursuant to Rule 424(b) under the Securities Act ("Rule
424(b)"), including all documents incorporated by reference therein at such
times pursuant to Item 12 of Form S-3, are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively.
(b) (i) After the time of effectiveness of this Underwriting Agreement
and during the time specified in Section 6(d), the Company will not file
any amendment to the Registration Statement or any supplement to the
Prospectus (except any amendment or supplement relating solely to General
and Refunding Mortgage Bonds other than the Bonds or relating solely to
shares of Preferred Stock), 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 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
incorporated by reference in the Prospectus (except documents incorporated
by reference relating solely to General and Refunding Mortgage Bonds other
than the Bonds or relating solely to shares of Preferred Stock) pursuant to
Item 12 of Form S-3 shall be deemed a supplement to the Prospectus.
(c) The Registration Statement, at the Effective Date (as defined
below), and the Mortgage, at such time, fully complied, and the Prospectus,
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 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
2
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 General and Refunding Mortgage
Bonds other than the Bonds or relating solely to shares of Preferred
Stock), the Registration Statement, as amended by any such post-effective
amendment, did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the time the Prospectus is filed with the Commission
pursuant to Rule 424 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 (d) shall not apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by or through the Representative 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 of the Trustees on Form T-1 and Form T-2, as they may then
be amended, under the Trust Indenture Act filed as exhibits to the
Registration Statement (the "Statements of Eligibility").
(d) The consummation by the Company of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party.
SECTION 5. Offering. Forthwith upon the execution of the Underwriting
Agreement, the Representative, acting on behalf of the Underwriters, shall
advise the Company whether a public offering of the Bonds is to be made, and, if
so, shall furnish to the Company (which information shall be confirmed in
writing as soon as practicable thereafter) (a) the information with respect to
such reoffering of the Bonds and related matters which is required to complete
the Prospectus Supplement or any post-effective amendment to the Registration
Statement which may be required and a copy of any "agreement among
underwriters", (b) if a post-effective amendment to the Registration Statement
is required, a consent, if necessary, to the filing of the post-effective
amendment or an acceptable power-of-attorney authorizing an available individual
to sign the consent on its behalf, and (c) such further information, if any, as
may be required to be furnished by the Company under the Public Utility Holding
Company Act of 1935 ("Holding Company Act"). Such information and the power-
of-attorney may be provided by telecopier (in the case of the power-of-attorney,
followed promptly by an executed copy). Nothing in the Underwriting Agreement
shall be construed to require that the Underwriters make any such public
offering on a "fixed price" basis; and the Representative agrees to notify the
Company in writing of any change in the plan of distribution of the Bonds which
would require a supplement to the Prospectus or an amendment to the Registration
Statement.
SECTION 6. Time and Place of Closing. Delivery of the Bonds and payment
therefor by wire transfer of immediately available funds shall be made at the
offices of Reid & Priest, 40 West 57th Street, New York, New York, at 10:00
A.M., New York Time, on June 17, 1997, or at such other place, time and/or date
as the Representative and the Company may agree upon in writing or as may be
established in accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Bonds shall be delivered to the Underwriters only in book-entry form
through the facilities of The Depository Trust Company in New York, New York.
The certificate for the Bonds shall be in the form of one
3
typewritten global bond in fully registered form, in the aggregate principal
amount of the Bonds, and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds available to the
Representative for checking not later than 2:30 P.M., New York time, on the last
business day preceding the Closing Date at such place as may be agreed upon
among the Representative and the Company, or at such other time and/or date as
may be agreed upon among the Representative and the Company.
If any Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the cancellation or
termination of its obligations hereunder) to purchase and pay for the principal
amount of Bonds which it has agreed to purchase and pay for hereunder, the
Company shall immediately give notice to the Representative of the default of
such Underwriter, and the other Underwriters shall have the right within 24
hours after the receipt of such notice by the Representative to determine to
purchase, or to procure one or more others, members of the National Association
of Securities Dealers, Inc. ("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), and
satisfactory to the Company, to purchase, upon the terms herein set forth, the
principal amount of Bonds that the defaulting Underwriter had agreed to
purchase. If any non-defaulting Underwriter or Underwriters shall determine to
exercise such right, the Representative shall give written notice to the Company
of such determination within 24 hours after it shall have received notice of any
such default, and thereupon the Closing Date shall be postponed for such period,
not exceeding three business days, as the Company shall determine. If in the
event of such a default the Representative shall fail to give such notice, or
shall within such 24 hour period give written notice to the Company that no
other Underwriter or Underwriters, or others, will exercise such right, then the
Underwriting Agreement may be terminated by the Company, upon like notice given
to the Representative, within a further period of 24 hours. If in such case the
Company shall not elect to terminate the Underwriting Agreement, it shall have
the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to purchase and pay
for the respective principal amounts of Bonds that they had severally
agreed to purchase hereunder, as hereinabove provided, and, in addition,
the principal amount of Bonds that the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to one-ninth
( 1/9) of the respective principal amounts of Bonds that such
non-defaulting Underwriters have otherwise agreed to purchase hereunder,
and/or
(b) to procure one or more others, members of the NASD (or, if not
members of the NASD, who are foreign banks, dealers or institutions not
registered under the Exchange Act and who agree in making sales to comply
with the NASD's Rules of Fair Practice), to purchase, upon the terms herein
set forth, the principal amount of Bonds that such defaulting Underwriter
had agreed to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the foregoing
clause (a).
In the event the Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the Representative
within such further period of 24 hours, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as the Company
shall determine. In the event the Company shall be entitled to but shall not
elect to exercise its rights under clause (a) and/or (b), the Company shall be
deemed to have elected to terminate the Underwriting Agreement.
Any action taken by the Company under this Section 6 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under the Underwriting Agreement. Termination by the Company under
this Section 6 shall be without any liability on the part of the Company or any
non-defaulting Underwriter, except as otherwise provided in paragraph (h) of
Section 7.
In the computation of any period of 24 hours referred to in this Section 6,
there shall be excluded a period of 24 hours in respect of each Saturday, Sunday
or legal holiday which would otherwise be included in such period of time.
4
SECTION 7. Covenants of the Company. The Company agrees:
(a) To deliver to the Representative a conformed copy of the
Registration Statement as originally filed and of all amendments thereto
relating to the Bonds.
(b) To deliver to the Underwriters, through the Representative, as
many copies of the Prospectus as the Representative may reasonably request.
(c) To cause the Prospectus to be filed with the Commission pursuant
to and in compliance with Rule 424, and advise the Representative promptly
of the issuance of any stop order under the Securities Act with respect to
the Registration Statement or the institution of any proceedings therefor
of which the Company shall have received notice. The Company will use its
best efforts to prevent the issuance of any such stop order and to secure
the prompt removal thereof if issued.
(d) During such period of time (not exceeding nine months) after the
Prospectus has been filed with the Commission pursuant to Rule 424 as the
Underwriters are required by law to deliver a prospectus, if any event
relating to or affecting the Company or of which the Company shall be
advised in writing by the Representative shall occur which in the Company's
opinion should be set forth in a supplement or amendment to the Prospectus
in order to make the statements therein not misleading in the light of the
circumstances when the Prospectus is delivered to a purchaser of the Bonds,
to amend or supplement the Prospectus by either (i) preparing and filing
with the Commission and furnishing to the Representative at the Company's
expense a reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act, which will
supplement or amend the Prospectus so that, as supplemented or amended, it
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser of the Bonds, not misleading;
provided that should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the expense of
preparing any such amendment or supplement. In case any Underwriter is
required to deliver a prospectus after the expiration of nine months from
the date the Prospectus is filed with the Commission pursuant to Rule 424,
the Company, upon the request of the Representative, will furnish to the
Representative, at the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus or supplements or amendments to the
Prospectus complying with Section 10(a) of the Securities Act.
(e) During such period of time after the date the Prospectus is filed
with the Commission pursuant to Rule 424 as a prospectus relating to the
Bonds is required to be delivered under the Securities Act, to file
promptly all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(f) To make generally available to its security holders as soon as
practicable an earning statement (which need not be audited) in reasonable
detail 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 comply with the requirements of Section 11(a) of the Securities Act
and Rule 158 promulgated under the Securities Act.
(g) At any time within six months of the date hereof, to furnish such
proper information as may be lawfully required and otherwise cooperate in
qualifying the Bonds for offer and sale under the blue-sky laws of such
jurisdictions as the Representative may reasonably designate, provided that
the Company shall not be required to qualify as a foreign corporation or
dealer in securities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements deemed by the
Company to be unduly burdensome.
5
(h) Except as herein otherwise provided, to pay all expenses and taxes
(except transfer taxes) in connection with (i) the preparation and filing
by it of the Registration Statement, (ii) the issuance and delivery of the
Bonds, (iii) the preparation, execution, filing and recording of the
Supplemental Indenture, (iv) the qualification of the Bonds under the
blue-sky laws of various jurisdictions up to a maximum cost to it for
qualification and related legal fees of $3,500, and (v) the typing,
printing and delivery to the Underwriters, through the Representative, of
reasonable quantities of copies of the Registration Statement and the
Prospectus, and any amendment or supplement thereto, except as otherwise
provided in paragraph (d) of this Section, and Preliminary and Supplemental
Blue Sky Memoranda. The Company shall not, however, be required to pay any
amount for any expenses of the Representative or any of the Underwriters,
except that, if the Underwriting Agreement shall be terminated in
accordance with the provisions of Section 8, 9 or 11, the Company will
reimburse the Representative for (i) the reasonable fees and disbursements
of Counsel for the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event, and (ii) their reasonable
out-of-pocket expenses, in an amount not exceeding $5,000, incurred in
contemplation of the performance of the Underwriting Agreement. The Company
shall not in any event be liable to any of the Underwriters for damages on
account of loss of anticipated profits.
(i) Not to sell any additional General and Refunding Mortgage Bonds
without the consent of the Representative until the earlier to occur of (i)
the Closing Date or (ii) in the case of an initial public offering at a
fixed price by the Underwriters, the date of the termination of the fixed
price offering restrictions applicable to the Underwriters. The
Representative agrees to notify the Company of such termination if it
occurs prior to the Closing Date.
SECTION 8. Conditions of Underwriters' Obligations. The obligation of the
Underwriters to purchase and pay for the Bonds shall be subject to the accuracy
of the representations and warranties made herein on the part of the Company and
to the following conditions:
(a) The Prospectus shall have been transmitted for filing to the
Commission pursuant to Rule 424(b) prior to 5:30 P.M., New York time, on
the second business day following the date of this Underwriting Agreement,
or such other time and date as may be agreed upon by the Company and the
Representative.
(b) 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; and at the Closing Date the Representative
shall have received a certificate, dated the Closing Date and signed by an
officer of the Company, to the effect that no such stop order has been or
is in effect and that no proceedings for such purpose are pending before,
or to the knowledge of the Company threatened by, the Commission.
(c) At the Closing Date, there shall have been issued and there shall
be in full force and effect, to the extent legally required for the
issuance and sale of the Bonds, an order of the Commission under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act")
authorizing the issuance and sale of the Bonds and the execution of the
Supplemental Indenture on the terms set forth in, or contemplated by, this
Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have received from
Wise Carter Child & Caraway, Professional Association, Friday, Eldredge &
Clark and Reid & Priest LLP opinions, dated the Closing Date, substantially
in the forms set forth in Exhibits A, B and C hereto, respectively, (i)
with such changes therein as may be agreed upon by the Company and the
Representative with the approval of Counsel for the Underwriters, and (ii)
if the Prospectus shall be supplemented after being filed with the
Commission pursuant to Rule 424, with changes therein to reflect such
supplementation.
(e) At or prior to the Closing Date the Representative shall have
received from Coopers & Lybrand L.L.P. (the "Accountants") a letter (with a
conformed copy for each of 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
6
opinion, the financial statements and financial statement schedules audited
by them and included or incorporated by reference in the Prospectus comply
as to form in all material respects with the related accounting
requirements of the Exchange Act and the 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 available 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, the Executive
Committee thereof, if any, and the Stockholders of the Company since the
close of the most recent fiscal year for which audited financial statements
are available to a specified date not more than five business days prior to
the Closing Date and inquiries of officials 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
representation as to the sufficiency of such procedures for the several
Underwriters' purposes), nothing has come to their attention which caused
them to believe that (A) the unaudited financial statements 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
Exchange Act and the related 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 business days
prior to the Closing Date 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, industrial development or solid waste disposal
revenue bonds, or for changes or decreases as set forth in such letter,
identifying the same and specifying the amount thereof; and (iv) stating
that they have compared specific dollar amounts, percentages of revenues
and earnings and other financial information pertaining to the Company (x)
set forth in the Prospectus, and (y) set forth in documents filed by the
Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as
specified in Exhibit D hereto, in each case, to the extent that such
amounts, numbers, percentages and information may be derived from the
general accounting records of the Company, and excluding any questions
requiring an interpretation by legal counsel, with the results obtained
from the application of specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the letter, and
found them to be in agreement.
(f) At the Closing Date, the Representative shall have received a
certificate of the Company, dated the Closing Date and signed by an officer
of the Company, to the effect that since the most recent date as of which
information is given in the Prospectus, as it may be amended or
supplemented, there has not been any material adverse change in the
business, property or financial condition of the Company and there has not
been any material transaction entered into by the Company, other than
transactions in the ordinary course of business, in each case other than as
referred to in, or contemplated by, the Prospectus, as it may be amended or
supplemented.
(g) All legal proceedings to be taken in connection with the issuance
and sale of the Bonds shall have been reasonably satisfactory in form and
substance to Counsel for the Underwriters.
If any of the conditions specified in this Section shall not have been
fulfilled, the Underwriting Agreement may be terminated by the Representative
with the consent of Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate 50% or more of the principal amount of the
Bonds, upon notice thereof to the Company. Any such termination shall be without
liability of any party to any other party, except as otherwise provided in
paragraph (h) of Section 7.
7
SECTION 9. Conditions of Company's Obligations. The obligations of the
Company hereunder shall be subject to the following conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to and in compliance with Rule 424.
(b) 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.
(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 Bonds an order of the Commission under the 1935
Act authorizing the issuance and sale of the Bonds and the execution of the
Supplemental Indenture on the terms set forth in, or contemplated by, this
Underwriting Agreement.
In case any of the conditions specified in this Section shall not have been
fulfilled, the Underwriting Agreement may be terminated by the Company upon
notice thereof to the Representative. Any such termination shall be without
liability of any party to any other party, except as otherwise provided in
paragraph (h) of Section 7.
SECTION 10. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act from and against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other statute or
common law and shall reimburse each such Underwriter and 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
any untrue statement or alleged untrue statement of a material fact
contained in a preliminary prospectus (if used prior to the initial
effective date of the Registration Statement), or in the Basic Prospectus
(if used prior to the date that the Prospectus is filed with the Commission
pursuant to Rule 424), or in the Registration Statement or the Prospectus,
as amended or supplemented (if any amendments or supplements thereto shall
have been made), or in the Company's latest available Annual Report to
Shareholders, if portions thereof are incorporated by reference, directly
or indirectly, in a preliminary prospectus (if used prior to the effective
date of the Registration Statement), the Basic Prospectus (if used prior to
the date that the Prospectus is filed with the Commission pursuant to Rule
424), the Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in 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 written
information furnished to the Company by or through the Representative on
behalf of any Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement to
either thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement which shall
constitute the statements of eligibility under the Trust Indenture Act of
1939 of the trustees under the Mortgage; and provided further, that the
indemnity agreement contained in this paragraph shall not inure to the
benefit of any Underwriter or of any person controlling any Underwriter on
account of any such losses, claims, damages, liabilities, expenses or
actions arising from the sale of Bonds to any person if there shall not
have been given or sent to such person on behalf of such Underwriter (i)
with or prior to the written confirmation of the sale to such person a copy
of the Prospectus as then amended or supplemented (exclusive for this
purpose of any amendment or supplement relating solely to any offering of
General and Refunding Mortgage Bonds that are not
8
included in the Bonds or relating solely to any offering of Preferred Stock
and of any document incorporated by reference pursuant to Item 12 of Form
S-3) and (ii) as soon as available after such written confirmation a copy
of any amendment or supplement to the Prospectus (exclusive for this
purpose of any document incorporated by reference pursuant to Item 12 of
Form S-3) which the Company shall thereafter furnish, pursuant to Section
7(d) hereof, relating to an event occurring prior to the payment for and
delivery to such person of the Bonds involved in such sale. The indemnity
agreement of the Company contained in this Section and the representations
and warranties of the Company contained in Section 4 shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any such controlling person, and shall survive
the delivery of the Bonds.
(b) Each Underwriter shall indemnify, defend and hold harmless the
Company, its directors and officers, each other Underwriter, and each
person who controls any of the foregoing within the meaning of Section 15
of the Securities Act, from and against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law and
shall reimburse each of them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages, or
liabilities or in connection with defending any action, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, as
amended or supplemented (if any amendments or supplements thereto shall
have been furnished), 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, if such statement or omission was made
in reliance upon and in conformity with written information furnished to
the Company by or through the Representative on behalf of such Underwriter
for use in connection with the preparation of the Registration Statement or
the Prospectus or any amendment or supplement to either thereof. The
indemnity agreement of the respective Underwriters contained in this
paragraph shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Company, its directors or
officers, any such Underwriter, or any such controlling person, and shall
survive the delivery of the Bonds.
(c) The Company and the several Underwriters each shall, upon the
receipt of notice of the commencement of any action against it or any
person controlling it as aforesaid, in respect of which indemnity may be
sought on account of any indemnity agreement contained herein, promptly
give written notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the omission so to
notify the indemnifying party or parties of any such action shall not
relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be so
given, the indemnifying party shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of the action, in which event
the defense shall be conducted by counsel chosen by such indemnifying party
or parties and satisfactory to the indemnified party or parties who shall
be a defendant or defendants in the action, and the indemnified defendant
or defendants shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect not to assume
the defense of the action, the indemnifying party will reimburse the
indemnified party or parties for the reasonable fees and expenses of any
counsel retained by the indemnified party or parties.
SECTION 11. Termination. The Underwriting Agreement may be terminated at
any time prior to the Closing Date by the Representative with the consent of
Underwriters, who may include the Representative, which have agreed to purchase
in the aggregate 50% or more of the principal amount of the Bonds, if, prior to
such time, (i) trading in securities on the New York Stock Exchange shall have
been generally suspended, (ii) minimum or maximum ranges for prices shall have
been generally established on the New York Stock Exchange by the New York Stock
Exchange, the Commission or other governmental authority, (iii) a general
banking moratorium shall have been declared by federal or New York State
authorities or (iv) in the reasonable judgment of the Representative, the
subject matter of any amendment or supplement (prepared by
9
the Company) to the Basic Prospectus, the Registration Statement or the
Prospectus (except for information relating to the public offering of the Bonds
or to the activity of any Underwriter or Underwriters or to shares of Preferred
Stock) filed or issued after the effectiveness of the Underwriting Agreement by
the Company shall have materially impaired the marketability of the Bonds. Any
termination hereof pursuant to this Section 11 shall be without liability of any
party to any other party, except as otherwise provided in paragraph (h) of
Section 7.
SECTION 12. Miscellaneous. The Underwriting Agreement and the Bonds to be
sold hereunder shall be New York contracts and their validity and interpretation
shall be governed by the law of the State of New York. The Underwriting
Agreement shall inure to the benefit of the Company, the Underwriters and, with
respect to the provisions of Section 10, each director, officer and controlling
person referred to in Section 10, and their respective successors. 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 the Underwriting Agreement. The term "successor" as used in the
Underwriting Agreement shall not include any purchaser, as such purchaser, of
any of the Bonds from any of the Underwriters.
SECTION 13. Notices. All communications hereunder shall be in writing and,
if to the Underwriters, shall be mailed or delivered to the Representative at
the address set forth at the beginning of this Underwriting Agreement to the
attention of its General Counsel, or if to the Company, shall be mailed or
delivered to it at 308 East Pearl Street, Jackson, Mississippi 39201, Attention:
Treasurer and to Entergy Services, Inc. 639 Loyola Avenue, New Orleans,
Louisiana, 70113 Attention: Treasurer.
The stated interest rate to be borne by the Bonds and the price to be paid
to the Company therefor (stated as a percentage of the principal amount of the
Bonds), exclusive of accrued interest to be paid to the Company from the first
day of the month in which the Bonds are issued to the Closing Date, in each case
are set forth below. If said interest rate and price and the foregoing
Underwriting Agreement are in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the several Underwriters in accordance
with its terms.
10
We have submitted this Underwriting Agreement in duplicate with Schedule I
filled in.
Very truly yours,
As Representative(s) of the
Underwriters
By:
------------------------------------
By:
------------------------------------
Address of Representative
Principal amount: *
-----------------
Date of maturity: *
-----------------
Stated interest rate (a multiple of
0.125% (1/8th of 1%) or a multiple
of 0.01% (1/100th of 1%)): ___% per
annum
Price to Company (must be within the
range designated by the Company in
its Notice to prospective
purchasers): _______%
- ----------
* Insert the principal amount and date of maturity designated by the Company.
The foregoing Underwriting Agreement
is hereby accepted as of the date
set forth below.
ENTERGY MISSISSIPPI, INC.
By:
--------------------------------
Dated:
------------------------------
By:
--------------------------------
11
SCHEDULE I
ENTERGY MISSISSIPPI, INC.
GENERAL AND REFUNDING MORTGAGE BONDS
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT
OF BONDS
NAME OF UNDERWRITER ---------
- -------------------
<S> <C>
--------
Total............................................. $
========
</TABLE>
12
EXHIBIT A
[LETTERHEAD OF WISE CARTER CHILD & CARAWAY]
, 1997
[Addressee(s)]
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New York, and Friday,
Eldredge & Clark of Little Rock, Arkansas have acted as counsel for Entergy
Mississippi, Inc. (the "Company") in connection with the issuance and sale to
you, pursuant to the Underwriting Agreement effective , 1997, (the
"Underwriting Agreement"), between the Company and you, of $ aggregate
principal amount of its General and Refunding Mortgage Bonds % Series due
(the "Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of February 1, 1988, with Bank of Montreal Trust Company as
Corporate Trustee and Mark F. McLaughlin (as successor to Z. George Klodnicki)
as Co-Trustee, (the "Co-Trustee" and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the Eleventh Supplemental Indenture,
dated as of , 1997, (the "Supplemental Indenture") (the Mortgage and
Deed of Trust as so amended and supplemented being hereinafter referred to as
the "Mortgage"). This opinion is rendered to you at the request of the Company.
Capitalized terms used herein and not otherwise defined have the meanings
ascribed to such terms in the 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 Mortgage; (d) the Registration Statement and the
Prospectus; (e) the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and the execution
and delivery by the Company of the Supplemental Indenture and the Underwriting
Agreement; and (f) the proceedings before and the order entered by the
Commission under the 1935 Act relating to the issuance and sale of the Bonds by
the Company. We have also examined or caused to be examined such other documents
and have satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to the originals of the documents
submitted to us as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a certificate of the
Corporate 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 Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Mississippi,
has due corporate power and authority to conduct the business that it is
described as conducting in the Prospectus and to own and operate the
properties owned and operated by it in such business and is duly qualified
to conduct such business as a foreign corporation in the State of Arkansas.
(2) The Company has good and sufficient title to the properties
described as owned by it in and as subject to the lien of the Mortgage
(except properties released under the terms of the Mortgage), subject only
to Excepted Encumbrances (as defined in the Mortgage) and to minor defects
and encumbrances customarily found in properties of like size and character
that do not materially impair the use of such properties by the Company.
All permanent physical properties and franchises (other than those
expressly excepted in the Mortgage) acquired by the Company after the date
of the Supplemental Indenture will, upon such acquisition, become subject
to the lien of the Mortgage, subject, however, to such Excepted
Encumbrances and to liens, if any, existing or placed thereon at the time
of the acquisition thereof by the Company and except as limited by
bankruptcy law.
A-1
(3) The Mortgage constitutes a valid and direct lien on all of the
Mortgaged and Pledged Property (as defined in the Mortgage), subject only
to minor defects of the character aforesaid and Excepted Encumbrances. The
description of the Mortgaged and Pledged Property set forth in the Mortgage
is adequate to constitute the Mortgage a lien on the Mortgaged and Pledged
Property. The filing for recording of the Mortgage in the offices of the
Chancery Clerks of each County in Mississippi in which the Company holds
real property, and the recording of the Mortgage in the office of the
Circuit Clerk of Independence County, Arkansas, which filings or recordings
will be duly effected, and the filing of Uniform Commercial Code Financing
Statements covering the personal property and fixtures described in the
Mortgage as subject to the lien thereof in the offices of the Secretary of
State of the State of Mississippi, the Secretary of State of the State of
Arkansas, and the Secretary of State of the State of Wyoming, which filings
will be duly effected, are the only recordings, filings, rerecordings and
refilings required by law in order to protect and maintain the lien of the
Mortgage on any of the property described therein and subject thereto.
(4) The Mortgage 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 (i) as the same may be limited by the laws of the
States of Mississippi, Arkansas and Wyoming, where the property covered
thereby is located, affecting the remedies for the enforcement of the
security provided for therein, which laws do not, in our opinion, make
inadequate remedies necessary for the realization of the benefits of such
security, and (ii) as the same may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether 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 Bonds have been duly and validly authorized by all necessary
corporate action on the part of the Company and are legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other 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
benefit of the security afforded by the Mortgage.
(6) The statements made in the Prospectus and the Prospectus
Supplement under the captions "Description of the New G&R Bonds," insofar
as they purport to constitute summaries of the documents referred to
therein, or of the benefits purported to be afforded by such documents
(including, without limitation, the lien of the Mortgage), constitute
accurate summaries of the terms of such documents and of such benefits in
all material respects.
(7) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(8) 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 Effective Date, and the
Prospectus, at the time it was 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 Statements of Eligibility 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 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
A-2
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.
(9) An appropriate order has been entered by the Commission under the
1935 Act authorizing to the issuance and sale of the Bonds by the Company;
to the best of our knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of any governmental
body (other than under the Securities Act or the Trust Indenture Act, which
have been duly obtained, or in connection or compliance with the provisions
of the securities or blue sky laws of any jurisdiction) is legally required
to permit the issuance and sale of the Bonds by the Company pursuant to the
Underwriting Agreement; and no further approval, authorization, consent or
other order of any governmental body is legally required to permit the
performance by the Company of its obligations with respect to the Bonds or
under the Mortgage and the Underwriting Agreement.
(10) The issuance and sale by the Company of the Bonds and the
execution, delivery and performance by the Company of the Underwriting
Agreement and the Mortgage (a) will not violate any provision of the
Company's Restated Articles of Incorporation or By-laws, each as amended,
(b) will not violate any provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance on
or security interest in (except as contemplated by the Mortgage) 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 Mississippi 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).
In passing upon the forms of the Registration Statement and the Prospectus,
we necessarily assume the correctness, completeness and fairness of the
statements made by the Company and information included or incorporated by
reference in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate to us and as
set forth in paragraph (6) above. In connection with the preparation by the
Company of the Registration Statement and the Prospectus, we have had
discussions with certain of the officers, employees, and representatives of the
Company and Entergy Services, Inc., with other counsel for the Company, and with
the independent certified public accountants of the Company who examined certain
of the financial statements included or incorporated by reference in the
Registration Statement. Our examination of the Registration Statement and the
Prospectus and the above-mentioned 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
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 Statements
of Eligibility or as to the information contained in the Prospectus Supplement
under the caption "Description of the New G&R Bonds -- Book-Entry New G&R
Bonds."
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 Mississippi law.
A-3
We are members of the Mississippi Bar and do not hold ourselves out as
experts on the laws of any other state. As to all matters of Arkansas, Wyoming
and New York law, we have relied, with your approval, in the case of Arkansas
law, upon the opinion of even date herewith addressed to us and to you of
Friday, Eldredge & Clark, in the case of Wyoming law, upon the opinion of even
date herewith addressed to us and to the Company of Kline & Jenkins, of
Cheyenne, Wyoming (a copy of which has been furnished to Counsel for the
Underwriters), and, in the case of New York law, upon the opinion of even date
herewith addressed to you of Reid & Priest LLP.
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 Mississippi and Wyoming law in rendering their
opinions required to be delivered under the Underwriting Agreement.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
A-4
EXHIBIT B
[LETTERHEAD OF FRIDAY, ELDREDGE & CLARK]
, 1997
Wise Carter Child & Caraway
Professional Association
Post Office Box 651
Jackson, Mississippi 39205
[Underwriters]
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New York, and Wise Carter
Child & Caraway, Professional Association, of Jackson, Mississippi, have acted
as counsel for Entergy Mississippi, Inc. (the "Company") in connection with the
issuance and sale to you, pursuant to the Underwriting Agreement effective
, 1997 (the "Underwriting Agreement"), between the Company and you,
of $ aggregate principal amount of its General and Refunding Mortgage
Bonds % Series due (the "Bonds"), issued pursuant to the
Company's Mortgage and Deed of Trust, dated as of February 1, 1988 with Bank of
Montreal Trust Company as Corporate Trustee and Mark F. McLaughlin (as successor
to Z. George Klodnicki) as Co-Trustee, (the "Co-Trustee" and, together with the
Corporate Trustee, the "Trustees"), as heretofore amended and supplemented by
all indentures amendatory thereof and supplemental thereto, including the
Eleventh Supplemental Indenture, dated as of , 1997 (the
"Supplemental Indenture") (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage"). We have examined
such documents, records and certificates and have reviewed such questions of law
as we have deemed necessary and appropriate for the purpose of this opinion.
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 order to render this opinion, we have assumed that the Company does not
own any real or personal property or other facilities in the State of Arkansas,
except for an undivided twenty-five percent (25%) ownership interest in the
Independence Steam Electric Station at Newark, Arkansas, and that the Company
does not maintain any service territory or serve any retail customers in the
State of Arkansas. We have also assumed that the issuance and sale of the Bonds
have had significant contacts with the State of New York.
Based upon the foregoing and subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the opinion that:
1. The Company is duly qualified to conduct the business that it is
described as conducting in the Prospectus as a foreign corporation and is
in good standing under the laws of the State of Arkansas and holds adequate
and subsisting franchises, certificates of public convenience and
necessity, licenses and permits to permit it to conduct its business as
presently conducted in Arkansas.
2. The courts of Arkansas will enforce any provision in the Mortgage,
the Bonds and the Underwriting Agreement, stipulating that the laws of the
State of New York shall govern the Mortgage, the Bonds and the Underwriting
Agreement, except to the extent that the validity or perfection of the lien
of the Mortgage, or remedies thereunder, are governed by the laws of a
jurisdiction other than the State of New York, except, with respect to
enforcement of the Mortgage, as the same may be limited by the laws of the
State of Arkansas affecting the remedies for the enforcement of the
security provided for therein, which laws do not, in our opinion, make
inadequate remedies necessary for the realization of the benefits of such
security.
3. There are no authorizations, approvals, consents or orders of any
governmental authority in the State of Arkansas (other than in connection
or compliance with the provisions of the securities or "blue sky" laws as
to which no opinion is expressed herein) legally required for the
execution, delivery and
B-1
performance by the Company of the Underwriting Agreement or to permit the
issuance and sale by the Company of the Bonds pursuant to the Underwriting
Agreement.
4. Substantially all physical properties located in the State of
Arkansas (other than those expressly excepted) which have been or hereafter
may be acquired by the Company have been or, upon such acquisition, will
become subject to the lien of the Mortgage, subject, however, to Excepted
Encumbrances (as defined in the Mortgage) and to liens, defects, and
encumbrances, if any, existing or placed thereon at the time of the
acquisition thereof by the Company and except as limited by bankruptcy law.
5. The Company has good and sufficient legal right, title and interest
in and to the Mortgaged and Pledged Property (as defined in the Mortgage)
located in the State of Arkansas free and clear of any lien or encumbrance
except for the lien of the Mortgage and for Excepted Encumbrances (as
defined in the Mortgage), and except for minor defects and encumbrances
customarily found in physical properties of like size and character which
do not, in our opinion, materially impair the use of such properties
affected thereby in the conduct of the business of the Company. Our opinion
in the first sentence of this paragraph 5 is subject to the following:
We have, with your consent, performed the following procedures and
relied upon the following:
(a) a Limited Title Search performed by Independence County
Abstract Company, Inc., covering the period from September 10, 1981
to , 1997; (b) a review by Independence County Abstract
Company, Inc. of the Grantor/Grantee indices of volumes in the real
estate records of Independence County, Arkansas in which transactions
that would affect the Company's title to its property located in such
County would be recorded; (c) a review of the Plaintiff/Defendant
indices of official records of the Circuit Court and Chancery Court
of Independence County, Arkansas and of the United States District
Court for the Eastern District of the State of Arkansas, in each case
for civil suits currently pending therein; and (d) a certificate of
the Secretary of State of the State of Arkansas reflecting the
results of a search of the records maintained by such official
pursuant to Act 375 of the Acts of Arkansas of 1965 (the Arkansas
Transmitting Utility Act).
6. The description of the Mortgaged and Pledged Property (as defined
in the Mortgage) which is located in the State of Arkansas, as set forth in
the Mortgage, is adequate to constitute a lien on such Mortgaged and
Pledged Property. The recording of the Mortgage among the land records in
the office of the Circuit Clerk of Independence County, Arkansas, which
recording will be duly effected, and the filing of Uniform Commercial Code
financing statements covering the personal property and fixtures described
in the Mortgage subject to the lien thereof in the office of the Secretary
of State of the State of Arkansas, which filing will be duly effected, are
the only recordings, filings, rerecordings or refilings required by
Arkansas law in order to protect and maintain the lien of the Mortgage on
any Arkansas property described therein and subject thereto.
We are members of the Arkansas Bar, and we express no opinion on the laws
of any jurisdiction other than the State of Arkansas.
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 may not be relied upon in any manner by any other
person or for any other purpose, without our prior written consent, except that
Winthrop, Stimson, Putnam & Roberts and Reid & Priest LLP may rely on this
opinion as to all matters of Arkansas law.
Sincerely,
FRIDAY, ELDREDGE & CLARK
B-2
EXHIBIT C
[LETTERHEAD OF REID & PRIEST LLP]
, 1997
[Addressee(s)]
Ladies and Gentlemen:
We, together with Friday, Eldredge & Clark and Wise Carter Child & Caraway,
Professional Association, have acted as counsel for Entergy Mississippi, Inc.
(the "Company") in connection with the issuance and sale to you pursuant to the
Underwriting Agreement, effective , 1997 (the "Underwriting
Agreement"), between the Company and you, of $ aggregate principal
amount of its General and Refunding Mortgage Bonds, % Series
due (the "Bonds") issued pursuant to the Company's Mortgage and
Deed of Trust, dated as of February 1, 1988 with Bank of Montreal Trust Company
as Corporate Trust and Mark F. McLaughlin (successor to Z. George Klodnicki) as
Co-Trustee (the "Co-Trustee" and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the Eleventh Supplemental Indenture,
dated as of , 1997 (the "Supplemental Indenture") (the Mortgage
and Deed of Trust as so amended and supplemented being hereinafter referred to
as the "Mortgage"). This opinion is being rendered to you at the request of the
Company. Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the 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 Mortgage; (d) the Registration Statement and the
Prospectus; (e) the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and the execution
and delivery by the Company of the Supplemental Indenture and the Underwriting
Agreement; and (f) the proceedings before and the order entered by the
Commission under the 1935 Act relating to the issuance and sale of the Bonds by
the Company. We have also examined or caused to be examined such other documents
and have satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to the originals of the documents
submitted to us as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a certificate of the
Corporate Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions and qualifications
set forth below, we are of the opinion that:
(1) The Mortgage has been duly 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 (i) as the same may be limited by the laws of the
States of Mississippi, Arkansas and Wyoming, where the property covered
thereby is located, affecting the remedies for the enforcement of the
security provided for therein, and (ii) as the same may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law) and is
qualified under the Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge, threatened by the
Commission.
(2) The Bonds have been duly and validly authorized by all necessary
corporate action on the part of the Company and are legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and
C-1
other 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 benefit of the security afforded by the Mortgage.
(3) The statements made in the Prospectus and the Prospectus
Supplement under the captions "Description of the New G&R Bonds," insofar
as they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such documents in
all material respects.
(4) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(5) 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 Effective Date, and the
Prospectus, at the time it was 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 Statements of Eligibility, 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 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.
(6) An appropriate order has been entered by the Commission under the
1935 Act authorizing the issuance and sale of the Bonds by the Company; to
the best of our knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of any governmental
body (other than under the Securities Act or the Trust Indenture Act, which
have been duly obtained, or in connection or compliance with the provisions
of the securities or blue sky laws of any jurisdiction) is legally required
to permit the issuance and sale of the Bonds by the Company pursuant to the
Underwriting Agreement; and no further approval, authorization, consent or
other order of any governmental body is legally required to permit the
performance by the Company of its obligations with respect to the Bonds or
under the Mortgage and the Underwriting Agreement.
In passing upon the forms of the Registration Statement and the Prospectus,
we necessarily assume the correctness, completeness and fairness of the
statements made by the Company and information included or incorporated by
reference in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate to us and as
set forth in paragraph (3) above. In connection with the preparation by the
Company of the Registration Statement and the Prospectus, we have had
discussions with certain officers, employees and representatives of the Company
and Entergy Services, Inc., with other counsel for the Company, and with the
independent certified public accountants of the Company who examined certain of
the financial statements included or incorporated by reference in the
Registration Statement. Our examination of the Registration Statement and the
Prospectus and our discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at the Effective
Date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time 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 Statements
of
C-2
Eligibility or as to the information contained in the Prospectus Supplement
under the caption "Description of the New G&R Bonds -- Book-Entry New G&R
Bonds."
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 Mississippi and Wyoming
law, we have relied upon the opinion of even date herewith addressed to you by
Wise Carter Child & Caraway, Professional Association, and as to all matters of
Arkansas law, we have relied upon the opinion of even date herewith addressed to
you by Friday, Eldredge & Clark, special counsel to the Company. We have not
examined into and are not passing upon matters relating to incorporation of the
Company, titles to property, franchises or the lien of the Mortgage.
The opinion set forth above is solely for 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
Wise Carter Child & Caraway, Professional Association and Friday, Eldredge &
Clark may rely on this opinion as to all matters of New York law in rendering
their respective opinions required to be delivered under the Underwriting
Agreement.
Very truly yours,
REID & PRIEST LLP
C-3
EXHIBIT D
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
<TABLE>
<CAPTION>
CAPTION PAGE ITEMS
------- ---- -----
<S> <C> <C>
Annual Report on Form 10-K for the year
ended December 31, 1996
"SELECTED FINANCIAL DATA - FIVE YEAR 103 The amounts of electric operating
COMPARISON" revenues (by source) for the twelve
month periods ended December 31, 1996
and 1995.
Quarterly Report on Form 10-Q for the
period ended March 31, 1997
"SELECTED OPERATING RESULTS" 44 The amounts of electric operating
revenues (by source) for the three month
periods ended March 31, 1997 and 1996.
</TABLE>
D-1
