Exhibit 1(a)
[Form Underwriting Agreement for First Mortgage Bonds]
Entergy Arkansas, Inc.
$___________________
First Mortgage Bonds
________% Series due _________________
UNDERWRITING AGREEMENT
[ Underwriters ]
[Lead Manager]
[Adress]
The undersigned, Entergy Arkansas, Inc., an Arkansas
corporation (the "Company"), proposes to issue and sell severally
to you, as underwriters (the "Underwriters," which term, when the
context permits, shall also include any underwriters substituted
as hereinafter in Section 11 provided), an aggregate of
$_______________principal amount of the Company's First Mortgage
Bonds, _____% Series due _____________, (the "Bonds"), as
follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the Bonds at 99.65% of the
principal amount thereof, in the principal amount set forth
opposite the name of such Underwriter in Schedule I attached
hereto.
SECTION 2. Description of Bonds. The Bonds shall be issued
under and pursuant to the Company's Mortgage and Deed of Trust,
dated as of October 1, 1944, with Bankers Trust Company
(successor to Morgan Guaranty Trust Company of New York), as
Corporate Trustee, and Stanley Burg (successor to Henry A. Theis,
Herbert E. Twyeffort, Grainger S. Greene and John W. Flaherty)
and (as to property, real or personal, situated or being in
Missouri), Peter D. Van Cleve, successor to The Boatmen's
National Bank of St. Louis (and Marvin A. Mueller), as Co-
Trustees (the "Co-Trustees" 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
____________ Supplemental Indenture, dated as of ______________,
(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 (as defined herein) the form of the Supplemental
Indenture may be amended by mutual agreement between the Company
and the Underwriters.
SECTION 3. Representations and Warranties of the Company.
The Company represents and warrants to the several Underwriters,
and covenants and agrees with the several Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power and authority to
conduct the business that it is described in the Prospectus as
conducting and to own and operate the properties owned and
operated by it in such business and is in good standing and duly
qualified to conduct such business as a foreign corporation in
the states of Missouri and Tennessee.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333-______) for the registration of
$300,000,000 aggregate principal amount of the Company's Debt
Securities and/or the Company's First Mortgage Bonds (the "First
Mortgage Bonds") under the Securities Act of 1933, as amended
(the "Securities Act"), and such registration statement has
become effective. 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 $300,000,000 aggregate principal
amount of the Debt Securities and/or First Mortgage Bonds,
including the Bonds, 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 First 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 (or the most recent
amendment thereto filed prior to the time of effectiveness of
this Underwriting Agreement) became effective and prior to the
time of effectiveness of this Underwriting Agreement (but
excluding documents incorporated therein by reference relating
solely to First Mortgage Bonds other than the Bonds or relating
solely to the Company's Debt Securities), which are incorporated
or deemed to be incorporated by reference in the Basic Prospectus
pursuant to Item 12 of Form S-3, the term "Basic Prospectus" as
used herein shall also mean such prospectus as so amended,
revised or supplemented and reflecting such incorporation by
reference. Such registration statement, in the form in which it
became effective and as it may have been amended by all
amendments thereto as of the time of effectiveness of this
Underwriting Agreement (including, for these purposes, as an
amendment any document incorporated or deemed to be 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 Bonds by a prospectus supplement (a "Prospectus
Supplement") to be filed with 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.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or any supplement to the Prospectus (except any
amendment or supplement relating solely to First Mortgage Bonds
other than the Bonds or relating solely to the Company's Debt
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
incorporated or deemed to be incorporated by reference in the
Prospectus (except documents incorporated by reference relating
solely to First Mortgage Bonds other than the Bonds or relating
solely to the Company's Debt Securities) pursuant to Item 12 of
Form S-3 shall be deemed a supplement to the Prospectus.
(d) The Registration Statement, at the Effective Date
(as defined below) and the Mortgage, at such time, fully
complied, and the Prospectus, when delivered to the Underwriters
for their use in making confirmations of sales of the Bonds 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 or deemed to be 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 (or the
most recent post-effective amendment thereto, but excluding any
post-effective amendment relating solely to First Mortgage Bonds
other than the Bonds or relating solely to the Company's Debt
Securities) 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 (such date is hereinafter referred to as the
"Effective Date"), the Registration Statement 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 Bonds 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 were made, not misleading and, on
said dates and at such times, the documents then incorporated or
deemed to be 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 were made, not misleading. The foregoing representations
and warranties in this paragraph (d) shall not apply to
statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by the
Underwriters or on 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").
(e) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Mortgage or any indenture or
other agreement or instrument to which the Company is now a
party.
(f) Except as set forth or contemplated in the
Prospectus, as it may be then amended or supplemented, the
Company possesses adequate franchises, licenses, permits, and
other rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of others
which could have a material adverse effect on the Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the effectiveness
of this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the Bonds
will be offered to the public at the initial public offering
price specified in the Prospectus Supplement plus accrued
interest thereon, if any, from the Closing Date.
SECTION 5. Time and Place of Closing; Delivery of the
Bonds. Delivery of the Bonds and payment of the purchase price
therefor by wire transfer of immediately available funds shall be
made at the offices of Thelen Reid & Priest LLP, 40 West 57th
Street, New York, New York, at 10:00 A.M., New York time,
on_____________, or at such other time on the same or such other
day as shall be agreed upon by the Company and [Lead Manager.],
or as may be established in accordance with Section 11 hereof.
The hour and date of such delivery and payment are herein called
the "Closing Date."
The Bonds shall be delivered to the Underwriters in book-
entry only 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 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 Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon between the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a conformed copy of the Registration
Statement in the form that it or the most recent post-effective
amendment thereto became effective, certified by an officer of
the Company to be in such form.
(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 the Commission pursuant to and in compliance with Rule
424(b) and will advise [Lead Manager]. 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 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 of which the Company shall be advised
by the Underwriters in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Bonds, 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 make generally available to its
security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve
months beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner, 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 Company will furnish such proper information as may be
lawfully required by, and will otherwise cooperate in qualifying
the Bonds for offer and sale under, the blue sky laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the
Registration Statement and any post-effective amendments thereto,
(ii) the printing, issuance and delivery of the Bonds and the
preparation, execution, printing and recordation of the
Supplemental Indenture, (iii) legal counsel relating to the
qualification of the Bonds under the blue sky laws of various
jurisdictions in an amount not to exceed $3,500, (iv) the
printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, the
preliminary (and any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Bonds 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 Bonds by one or more nationally recognized
statistical rating agencies and (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. 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) The Company will not sell any additional First
Mortgage Bonds without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date and (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Underwriters agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Mortgage and
the rights under the Supplemental Indenture, and the Company will
use its best efforts to cause to be furnished to the Underwriters
a supplemental opinion of counsel for the Company, addressed to
the Underwriters, stating that all such recordings, registrations
and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Bonds
shall be subject to the accuracy on the date hereof and on the
Closing Date of the representations and warranties made herein on
the part of the Company and of any certificates furnished by the
Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) prior to 5:30 P.M., New York
time, on the second business day following the date of this
Underwriting Agreement, or such other time and date as may be
agreed upon by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company, to the effect that no
such stop order has been or is in effect and that no proceedings
for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect orders of the Public
Service Commissions of Arkansas and Tennessee authorizing the
issuance and sale of the Bonds on the terms set forth in, or
contemplated by, this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from Friday, Eldredge & Clark and Thelen Reid & Priest
LLP, opinions, dated the Closing Date, substantially in the forms
set forth in Exhibits A and B hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and the
Underwriters with the approval of Counsel for the Underwriters,
and (ii) if the Prospectus shall be supplemented after being
furnished to the Underwriters for use in offering the Bonds, with
changes therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit C
hereto, with such changes therein as may be necessary to reflect
any supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the date this Underwriting
Agreement became effective, the Underwriters shall have received
from PricewaterhouseCoopers 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 audited 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, 1998 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 audit made in accordance with generally accepted
auditing standards and they would not necessarily reveal matters
of significance with respect to the comments made in such letter
and, accordingly, that the Accountants make no representations as
to the sufficiency of such procedures for the purposes of the
Underwriters), nothing has come to their attention which caused
them to believe that, to the extent applicable, (A) the unaudited
financial statements of the Company (if any) included or
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the
related published rules and regulations thereunder; (B) any
material modifications should be made to said unaudited financial
statements for them to be in conformity with generally accepted
accounting principles; and (C) at a specified date not more than
five days prior to the date of the letter, there was any change
in the capital stock or long-term debt of the Company, or
decrease in its net assets, in each case as compared with amounts
shown in the most recent balance sheet incorporated by reference
in the Prospectus, except in all instances for changes or
decreases which the Prospectus discloses have occurred or may
occur, for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of premium or
discount on long-term debt, for the redemption or purchase of
preferred stock for sinking fund purposes, for any increases in
long-term debt in respect of previously issued pollution control,
solid waste disposal or industrial development revenue bonds, or
for changes or decreases as set forth in such letter, identifying
the same and specifying the amount thereof; and (iv) stating that
they have compared specific dollar amounts, percentages of
revenues and earnings and other financial information pertaining
to the Company (x) set forth in the Prospectus, and (y) set forth
in documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act as specified in Exhibit D hereto, in
each case, to the extent that such amounts, numbers, percentages
and information may be derived from the general accounting
records of the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from
the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (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.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Supplemental
Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
default (or an event which, with the giving of notice or the
passage of time or both, would constitute a default) under the
Mortgage shall have occurred.
(k) Prior to the Closing Date, [Lead Manger] shall
have received from the Company evidence reasonably satisfactory
to [Lead Manager] that the Bonds have received ratings of Baa2 or
better from Moody's Investors Service, Inc. and BBB+ or better
from Standard & Poor's Ratings Services.
(l) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Services shall have lowered its rating of any of the
Company's outstanding First Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company, which, in the reasonable opinion of the
Underwriters, materially impairs the investment quality of the
Bonds.
(n) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and substance
to Counsel for the Underwriters.
(o) The Company shall furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7 shall
not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) At the Closing Date, there shall have been issued
and 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 Bonds on the terms set forth in, or
contemplated by, this Underwriting Agreement.
In case any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to Salomon Smith
Barney Inc. 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 Company shall
indemnify, defend and hold harmless each Underwriter and each
person who controls each Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which each Underwriter or any
or all of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each Underwriter
and any such controlling person for any legal or other expenses
(including to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon
an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as amended or
supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary 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 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
Company by such Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424(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 Statements of
Eligibility; 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 such
Underwriter on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the
Bonds to any person in respect of the Basic Prospectus or the
Prospectus as supplemented or amended, furnished by such
Underwriter to a person to whom any of the Bonds were sold
(excluding in both cases, however, any document then incorporated
or deemed to be incorporated by reference therein), insofar as
such indemnity relates to any untrue or misleading statement or
omission made in the Basic Prospectus or the Prospectus but
eliminated or remedied prior to the consummation of such sale in
the Prospectus, or any amendment or supplement thereto, furnished
on a timely basis by the Company to the Underwriters pursuant to
Section 6(d) hereof, respectively, unless a copy of the
Prospectus (in the case of such a statement or omission made in
the Basic Prospectus) or such amendment or supplement (in the
case of such a statement or omission made in the Prospectus)
(excluding, however, any amendment or supplement to the Basic
Prospectus relating to any First Mortgage Bonds other than the
Bonds or to shares of Preferred Stock and any document then
incorporated or deemed to be incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act 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 the Commission pursuant to Rule
424(b)), or in the Prospectus, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
in each case, if, but only if, such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with the Commission pursuant to
Rule 424(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment)).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and such
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any Underwriter
shall fail or refuse (otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder) to purchase and pay
for the principal amount of Bonds that it has agreed to purchase
and pay for hereunder, and the aggregate principal amount of
Bonds that such defaulting Underwriter agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Bonds, the other Underwriters shall be
obligated to purchase the Bonds that such defaulting Underwriter
agreed but failed or refused to purchase; provided that in no
event shall the principal amount of Bonds that such Underwriter
has agreed to purchase pursuant to Schedule I hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth
of such principal amount of Bonds without written consent of such
Underwriter. If such Underwriter shall fail or refuse to
purchase Bonds and the aggregate principal amount of Bonds with
respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Bonds, the Company shall
have the right (a) to require the non-defaulting Underwriters to
purchase and pay for the respective principal amount of Bonds
that they had severally agreed to purchase hereunder, 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 of the respective principal
amount of Bonds that such non-defaulting Underwriters have
otherwise agreed to purchase hereunder, and/or (b) to procure one
or more other 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 Underwriters within 24 hours (excluding any Saturday,
Sunday, or legal holiday) of the time when the Company learns of
the failure or refusal of any Underwriter to purchase and pay for
its respective principal amount of Bonds, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriters, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement shall
be subject to termination by written notice from [Lead Manager ]
to the Company, if (a) after the execution and delivery of this
Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended on the New York Stock
Exchange by The New York Stock Exchange, Inc., the Commission or
other governmental authority, (ii) minimum or maximum ranges for
prices shall have been generally established on the New York
Stock Exchange by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (iii) a general
moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the judgment of [Lead Manager], 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 [Lead
Manager], impracticable to market the Bonds. This Underwriting
Agreement shall also be subject to termination, upon notice by
[Lead Manager] as provided above, if, in the judgment of [Lead
Manager]., the subject matter of any amendment or supplement
(prepared by the Company) to the Prospectus (except for
information relating solely to the manner of public offering of
the Bonds or to the activity of the Underwriters or to the terms
of any series of First Mortgage Bonds other than the Bonds or to
shares of Preferred Stock) filed or issued after the
effectiveness of this Underwriting Agreement by the Company shall
have materially impaired the marketability of the Bonds. 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. THE RIGHTS AND DUTIES OF THE
PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, 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 Salomon Smith Barney Inc. by the Company. This Underwriting
Agreement may be executed in any number of separate counterparts,
each of which, when so executed and delivered, shall be deemed to
be an original and all of which, taken together, shall constitute
but one and the same agreement. This Underwriting Agreement
shall inure to the benefit of each of the Company, the
Underwriters and, with respect to the provisions of Section 9,
each director, officer and other persons referred to in
Section 9, and their respective successors. Should any part of
this Underwriting Agreement for any reason be declared invalid,
such declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of
any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to [Lead Manager] at the address set forth at the
beginning of this Underwriting Agreement to ___________________,
if to the Company, 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:
Accepted as of the date first above written:
[ Underwriters]
By:
By:
Name:
Title:
<PAGE>
SCHEDULE I
Entergy Arkansas, Inc.
$__________ First Mortgage Bonds
______% Series due ________________
Name of Underwriters Principal Amount of Bonds
TOTAL $
<PAGE>
EXHIBIT A
[Letterhead of Friday, Eldredge & Clark]
[ DATE ]
[ Underwriters ]
[ Address ]
Ladies and Gentlemen:
We, together with Thelen Reid & Priest LLP, of New York, New
York, have acted as counsel for Entergy Arkansas, Inc., an
Arkansas corporation (the "Company"), in connection with the
issuance and sale to you, pursuant to the Underwriting Agreement
effective ______________ (the "Underwriting Agreement"), between
the Company and you, of $___________ aggregate principal amount
of its First Mortgage Bonds_____% Series due _____________ (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of October 1, 1944, with Bankers Trust Company
(successor to Morgan Guaranty Trust Company of New York), as
Corporate Trustee (the "Corporate Trustee"), and Stanley Burg
(successor to Henry A. Theis, Herbert E. Twyeffort, Grainger S.
Greene and John W. Flaherty) and (as to property, real or
personal, situated or being in Missouri), Peter D. Van Cleve,
successor to The Boatmen's National Bank of St. Louis (and
Marvin A. Mueller), as Co-Trustees (the "Co-Trustees" 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 _____________ Supplemental
Indenture, dated as of _____________(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 orders entered by the Public Service Commissions
of Arkansas and Tennessee 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 and the authenticity of the originals of such latter
documents. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Corporate
Trustee as to the authentication and delivery thereof.
Based on 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 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 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 states of Missouri and Tennessee.
(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. The description of
such properties set forth in the Mortgage is adequate to
constitute the Mortgage as a lien thereon; and, subject to
paragraph (3) hereof, the Mortgage, subject only to such
minor defects and Excepted Encumbrances, constitutes a
valid, direct and first mortgage lien upon said properties,
which include substantially all of the permanent physical
properties and franchises of the Company (other than those
expressly excepted in the Mortgage). All permanent physical
properties and franchises (other than those expressly
excepted in the Mortgage) acquired by the Company after the
date of the Supplemental Indenture will, upon such
acquisition, become subject to the lien of the Mortgage,
subject, however, to such Excepted Encumbrances and to
liens, if any, existing or placed thereon at the time of the
acquisition thereof by the Company and except as may be
limited by bankruptcy law.
(3) It will be necessary to record the
Supplemental Indenture in the offices of the Secretaries of
State of Arkansas, Missouri and Wyoming and the offices of
the Clerk and Ex-Officio Recorder for the Counties in the
State of Arkansas, the Recorder of Deeds for the Counties in
the State of Missouri and the County Registrar for the
Counties in the State of Tennessee, respectively, in which
the Company owns property, to include the Supplemental
Indenture in the lien of the Mortgage before the liens
created by the Supplemental Indenture become effective as to
and enforceable against third parties. However, all
permanent physical properties and franchises of the Company
(other than those expressly excepted in the Mortgage)
presently owned by the Company are subject to the lien of
the Mortgage, subject to minor defects and Excepted
Encumbrances of the character referred to in paragraph (2)
hereof.
(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 may be limited by
the laws of the States of Arkansas, Missouri, Tennessee 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 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 (whether 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 may be 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 (whether 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 under
the captions "Description of the New 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 filed with 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 or deemed to be 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.
(9) Appropriate orders have been entered by the
Public Service Commissions of Arkansas and Tennessee
authorizing the issuance and sale of the Bonds by the
Company; to the best of our knowledge, said orders are in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
under the Securities Act 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 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 audited 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 it was filed with 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 (i)
the financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus, (ii) the Statements of Eligibility
or (iii) the information contained in the Prospectus under the
caption "Description of the New Bonds--Book-Entry New 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 Thelen Reid & Priest LLP and Winthrop,
Stimson, Putnam & Roberts, and concur in the conclusions
expressed therein insofar as they involve questions of Arkansas
and Tennessee law.
We are members of the Arkansas 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 Arkansas and the United
States of America. With respect to the opinions set forth herein
as to matters affected by Tennessee law, you are advised that our
opinions are based upon our consultation with attorneys licensed
in Tennessee and Tennessee regulatory officials. 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 Thelen Reid
& Priest LLP.
With respect to the opinions set forth in paragraphs (4) and
(5) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
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
Thelen Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts
may rely on this opinion as to all matters of Arkansas and
Tennessee law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT B
[Letterhead of Thelen Reid & Priest LLP]
[ DATE ]
[ Unerwriters ]
[Address ]
Ladies and Gentlemen:
We, together with Friday, Eldredge & Clark, have acted as
counsel for Entergy Arkansas, Inc., an Arkansas corporation (the
"Company"), in connection with the issuance and sale to you
pursuant to the Underwriting Agreement, effective ______________
(the "Underwriting Agreement"), between the Company and you, of
$___________ aggregate principal amount of its First Mortgage
Bonds, ______% Series due ______________ (the "Bonds") issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
October 1, 1944, with Bankers Trust Company (successor to Morgan
Guaranty Trust Company of New York), as Corporate Trustee (the
"Corporate Trustee"), and Stanley Burg (successor to Henry A.
Theis, Herbert E. Twyeffort, Grainger S. Greene and John W.
Flaherty) and (as to property, real or personal, situated or
being in Missouri), Peter D. Van Cleve, successor to The
Boatmen's National Bank of St. Louis (and Marvin A. Mueller), as
Co-Trustees (the "Co-Trustees" 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____________, dated as of __________________(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 orders entered by the Public Service Commissions
of Arkansas and Tennessee 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 and the authenticity of the originals of such latter
documents. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the 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 may be limited by
the laws of the States of Arkansas, Missouri, Tennessee and
Wyoming, where the property covered thereby is located,
affecting the remedies for the enforcement of the security
provided for therein, and (ii) as may be 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 (whether 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 may be 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 (whether 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 under
the captions "Description of the New 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 filed with 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 or deemed to be 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) Appropriate orders have been issued by the
Public Service Commissions of Arkansas and Tennessee
authorizing the issuance and sale of the Bonds by the
Company; to the best of our knowledge, said orders are in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
under the Securities Act 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 audited 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 it was filed with
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 (i) the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, (ii)
the Statements of Eligibility or (iii) the information contained
in the Prospectus under the caption "Description of the New Bonds-
-Book-Entry New Bonds."
We are members of the New York Bar and, for the purposes of
this opinion, do not hold ourselves out as experts on the laws of
any other jurisdiction other than the State of New York and the
United States of America. As to all matters of Arkansas and
Tennessee law, we have relied upon the opinion of even date
herewith addressed to you by Friday, Eldredge & Clark, counsel
for 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.
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
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 may rely on this opinion as to all
matters of New York law in rendering its opinion required to be
delivered under the Underwriting Agreement.
Very truly yours,
THELEN REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[ DATE ]
[ Underwriters ]
[ Address ]
New York, New York 10048
Ladies and Gentlemen:
We have acted as counsel for you as the several underwriters
of $_____________ aggregate principal amount of First Mortgage
Bonds, ______% Series due _______________ (the "Bonds"), issued
by Entergy Arkansas, Inc., an Arkansas corporation (the
"Company"), under the Company's Mortgage and Deed of Trust, dated
as of October 1, 1944, with Bankers Trust Company (successor to
Morgan Guaranty Trust Company of New York), as Corporate Trustee
(the "Corporate Trustee"), and Stanley Burg (successor to Henry
A. Theis, Herbert E. Twyeffort, Grainger S. Greene and John W.
Flaherty) and (as to property, real or personal, situated or
being in Missouri) Peter D. Van Cleve, successor to The Boatmen's
National Bank of St. Louis (and Marvin A. Mueller), as Co-
Trustees (the "Co-Trustees" and, together with the Corporate
Trustees, 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
____________ Supplemental Indenture, dated as of _______________
(the Mortgage and Deed of Trust as so amended and supplemented
being hereinafter referred to as the "Mortgage"), pursuant to the
Underwriting Agreement between you and the Company effective
_______________ (the "Underwriting Agreement").
We are members of the New York Bar and, for purposes of this
opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by Friday,
Eldredge & Clark, counsel for the Company, as to all matters of
Arkansas and Tennessee law related to this opinion. We have
reviewed said opinion and believe that it is satisfactory. We
have also reviewed the opinion of Reid & Priest LLP required by
Section 7(d) of the Underwriting Agreement, and we believe said
opinion to be satisfactory.
We have reviewed, and have relied as to matters of fact
material to this opinion upon, the documents delivered to you at
the closing of the transactions contemplated by the Underwriting
Agreement, and we have reviewed such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to render this opinion. As to
such matters of fact material to this opinion, we have relied
upon representations and certifications of the Company in such
documents and in the Underwriting Agreement, and upon statements
in the Registration Statement. In such review, we have assumed
the genuineness of all signatures, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals and the
correctness of all statements of fact contained in all such
original documents. We have not examined the Bonds, except
specimens thereof, and we have relied upon a certificate of the
Corporate Trustee as to the authentication and delivery thereof
and as to the authorization, execution and delivery of the
Supplemental Indenture. We have not examined into, and are
expressing no opinion or belief as to matters relating to,
incorporation of the Company, titles to property, franchises or
the lien of the Mortgage. 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 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, and is a legal, valid and binding
instrument of the Company enforceable against the Company in
accordance with its terms, except as limited by (i) the laws
of the States of Arkansas, Missouri, Tennessee and Wyoming,
where the property covered thereby is located, affecting the
remedies for the enforcement of the security purported to be
provided for therein, (ii) bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and general equitable principles (whether considered
in a proceeding in equity or at law), and (iii) an implied
covenant of reasonableness, good faith and fair dealing;
and, to the best of our knowledge, the Mortgage is qualified
under the Trust Indenture Act, and no proceedings to suspend
such qualification have been instituted or 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 bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
by an implied covenant of reasonableness, good faith and
fair dealing and are entitled to the benefit of the security
purported to be afforded by the Mortgage.
(3) The statements made in the Prospectus under
the captions "Description of the New 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) Appropriate orders have been issued by the
Public Service Commissions of Arkansas and Tennessee
authorizing the issuance and sale of the Bonds by the
Company, and to the best of our knowledge, such orders are
in full force and effect; and no further approval,
authorization, consent or other order of any governmental
body (other than under the Securities Act or the Trust
Indenture Act, which, to the best of our knowledge, has been
duly obtained, or in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Bonds by the Company pursuant to the
Underwriting Agreement.
(6) Except in each case as to the financial
statements and other financial or statistical data included
or incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed with 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 or deemed to be 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. 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 the statements made by
the Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain
officers, employees and representatives of the Company and
Entergy Services, Inc., with counsel for the Company and with
your representatives. Our review of the Registration Statement
and the Prospectus and the above-mentioned 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 filed with 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 (i) the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus or (ii) the Statements of Eligibility.
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that (i) the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities, and (ii) Section 42 of the Mortgage
provides that the Company will promptly record and file the
Supplemental Indenture in such manner and in such places, as may
be required by law in order to fully preserve and protect the
security of the bondholders and all rights of the Trustees.
This opinion is solely for your benefit 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
<PAGE>
EXHIBIT D
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
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