Exhibit 1(a)
ENTERGY ARKANSAS,
INC.
$[________]
First Mortgage Bonds,
[___]% Series due [________], [20__]
UNDERWRITING
AGREEMENT
[________], [20__]
[Name(s) of Underwriter(s)]
[Address(es) of Lead Underwriter(s)]
Ladies and Gentlemen:
The undersigned, Entergy Arkansas, Inc., an Arkansas corporation
(the "Company"), proposes to issue and sell severally to the
underwriters set forth in Schedule I attached hereto (the
"Underwriters," which term, when the context permits, shall also
include any underwriters substituted as hereinafter in Section 11
provided), for whom [________] and
[________], are acting as representatives (the "Representatives"),
an aggregate of $[________] principal amount of
the Company's First Mortgage Bonds, [___]% Series due [________],
[20__] (the "Bonds") , in accordance
with the terms set forth in this Underwriting Agreement (this
"Underwriting Agreement").
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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 [___]% of the principal amount thereof, in the principal
amount set forth opposite the name of such Underwriter in
Schedule I attached
hereto.
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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 Deutsche Bank Trust Company Americas
(successor to Guaranty Trust Company of New York), as Corporate
Trustee, and Stanley Burg (successor to Henry A. Theis) and (as to
property, real or personal, situated or being in Missouri), The
Bank of New York Trust Company, National Association (successor to
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
[________], [20__] (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
Disclosure Package (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.
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Representations and Warranties of the
Company . The Company represents and warrants to the
several Underwriters, and covenants and agrees with the several
Underwriters, that:
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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 is
described in the Disclosure Package 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.
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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 $500,000,000 aggregate offering
price of the Company's securities , including the
Bonds , under the
Securities Act of 1933 (the "Securities Act") ( $[_______] of which securities
remain unsold as of the date hereof), 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. At the time of filing such
registration statement and at the date hereof, the Company was not
and is not an "ineligible issuer" (as defined in Rule 405 under the
Securities Act). The prospectus forming
a part of such registration statement, at the time such
registration statement (or the most recent amendment thereto filed
prior to the Applicable Time (as defined below)) initially became effective,
including all documents incorporated by reference therein at that
time pursuant to Item 12 of Form S-3, is hereinafter referred to as
the "Basic Prospectus." In the event that (i) the Basic Prospectus
shall have been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to securities of the Company other than the
Bonds ) prior to the
Applicable Time including without limitation by any preliminary
prospectus supplement relating to the offering
and sale of the Bonds that is deemed to be part of and included in
such registration statement pursuant to Rule 430B(e) under the
Securities Act , or (ii) the Company
shall have filed documents pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") after the
time such registration statement (or the most recent amendment
thereto filed prior to the Applicable Time) became effective and
prior to the Applicable Time (but excluding documents incorporated
therein by reference relating solely to securities of the Company
other than the Bonds
), 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 . The
various parts of such registration
statement , in the
form in which such parts became effective and as such
parts may have been amended by all
amendments thereto as of the Applicable Time (including, for these
purposes, as an amendment, any document incorporated or deemed to
be incorporated by reference in the Basic Prospectus), and including any information omitted from such registration
statement at the time such part of such registration statement
became effective but that is deemed to be part of such registration
statement pursuant to Rule 430B under the Securities Act are
hereinafter referred to as the "Registration Statement." The Basic
Prospectus as it shall be supplemented to reflect the terms of the
offering and sale of the Bonds by a prospectus supplement (dated
the date hereof (together with the Basic Prospectus, the
"Prospectus Supplement")), to be filed with the Commission pursuant
to Rule 424(b) under the Securities Act ("Rule 424(b)") is
hereinafter referred to as the "Prospectus."
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(i) After the Applicable Time and during the
time specified in Section 6( e ) hereof, 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 securities
of the Company other than the Bonds ) or the Disclosure Package
, and (ii) between the Applicable Time 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 Pillsbury
Winthrop Shaw Pittman LLP ("Counsel for the Underwriters"), or any
such amendment or supplement to which the
Underwriters or 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 Applicable Time and incorporated or deemed to
be incorporated by reference in the Prospectus or the Disclosure Package
(except documents incorporated by reference relating solely to
securities of the Company other than the Bonds ) pursuant to Item 12
of Form S-3 shall be deemed a supplement to the Prospectus or the Disclosure Package
.
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The Registration Statement, as of the latest date as of which any part of the
Registration Statement relating to the Bonds became, or is deemed
to have become, effective under the Securities Act in accordance
with the rules and regulations of the Commission thereunder, the
Mortgage, at such time, and the Basic
Prospectus, when delivered to the Underwriters for their use in
marketing the Bonds, fully complied, and the
Prospectus, at the time it is filed with the Commission pursuant to
Rule 424(b) 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 (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 Basic
Prospectus and 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. No such documents
were filed with the Commission since the Commission's close of
business on the business day immediately prior to the date of this
Underwriting Agreement except as set forth on Part C of Schedule II
hereto or such other documents as were delivered to you prior to
the date of this Underwriting Agreement. The Registration Statement did not ,
as of the latest date as of which any part of the Registration
Statement relating to the Bonds became, or is deemed to have
become, effective under the Securities Act in accordance with the
rules and regulations of the Commission thereunder , 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 that the
Basic Prospectus
was delivered to the
Underwriters for their use in marketing the
Bonds, the Basic Prospectus did 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. At the time the
Prospectus is filed with the Commission pursuant to Rule 424(b)
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 Basic Prospectus and the
Prospectus pursuant to Item 12 of Form S-3, when taken together with the Basic Prospectus and 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 ,
the Basic Prospectus or the Prospectus,
as they may be then amended or supplemented (it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 9(b) hereof), 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").
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The Disclosure Package, and each electronic roadshow, if any,
identified in Part B of Schedule II hereto, when taken together
with the Disclosure Package, do not contain any untrue statement of
a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and the
documents then incorporated or deemed to be incorporated by
reference in the Disclosure Package, when taken together with the
Disclosure Package, do 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 preceding sentence
does not apply to statements in or omissions from the Disclosure
Package 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 Disclosure Package (it being understood and
agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in
Section 9(b) hereof). For purposes hereof,
(i) "Disclosure Package" shall mean (x) the Basic Prospectus as
amended or supplemented immediately prior to [__:__ .m. EST (__:__
.m. Central)] on the date of this Underwriting Agreement (the time
at which the Underwriters and the Company agreed upon the pricing
terms set forth in the final pricing term sheet attached as Annex A
to Schedule II to this Underwriting Agreement) (the "Applicable
Time") and (y) the Free Writing Prospectuses, if any, identified in
Part A of Schedule II hereto, (ii) "Issuer Free Writing Prospectus"
shall mean an issuer free writing prospectus, as defined in Rule
433 under the Securities Act, and (iii) "Free Writing Prospectus"
shall mean a free writing prospectus, as defined in Rule 405 under
the Securities Act.
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Each Issuer Free Writing Prospectus and the
final term sheet prepared and filed pursuant to Section 6(b) hereof
does not include any information that conflicts with the
information contained in the Registration Statement, the Basic
Prospectus or the Prospectus, including any document incorporated
or deemed to be incorporated by reference therein that has not been
superseded or modified. If there occurs an event or development as
a result of which the Disclosure Package would include an untrue
statement of a material fact or would omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will
notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented.
The foregoing two sentences do not apply to statements in or
omissions from the Disclosure Package in reliance upon and in
conformity with written information furnished to the Company by the
Underwriters on behalf of any Underwriter specifically for use in
connection with the preparation of the Disclosure Package (it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 9(b) hereof)
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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.
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Except as set forth in or contemplated by the Disclosure Package ,
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.
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The Company maintains (x) systems of
internal controls and processes sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences;
and (y) disclosure controls and procedures (as defined in Rule
13a-15(e) under the Exchange Act).
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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 .
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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,
875 Third Avenue, New York, New York, at 10:00 A.M., New York time,
on [________], [20__], or at such other time on the same or such other day
as shall be agreed upon by the Company and the Representatives, or
as may be established in accordance with Section 11 hereof. The
hour and date of such delivery and payment are herein called the
"Closing Date."
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.
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Covenants of the Company . The
Company covenants and agrees with the several Underwriters
that:
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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.
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The Company will prepare a final term sheet, containing solely a
description of the final terms of the Bonds and the offering
thereof, in a form approved by the Representatives and will file
such term sheet pursuant to Rule 433(d) under the Securities Act
within the time required by such Rule.
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The Company will deliver to the Underwriters as many copies of the
Prospectus (and any amendments or supplements thereto) and each Issuer Free Writing Prospectus as the Underwriters may reasonably request.
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The Company will cause the Prospectus to be
filed with the Commission pursuant to and in compliance with Rule
424(b) (without reliance on Rule 424(b)(8) under
the Securities Act) and will advise the
Representatives ,
promptly of the issuance of any stop order under the Securities Act
with respect to the Registration Statement , any
Issuer Free Writing Prospectus, the Basic Prospectus or the
Prospectus or the institution of any
proceedings therefor or pursuant to Section 8A
of the Securities Act 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.
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During such period of time as the
Underwriters are required by law to deliver a prospectus (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act)
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
or the Disclosure Package in order to make the Prospectus or the Disclosure Package
not misleading in the light of the circumstances when it is
delivered (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the
Securities Act) to a purchaser of the
Bonds , the Company
will amend or supplement the Prospectus or the
Disclosure Package 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 the Disclosure Package , 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 or the Disclosure
Package , 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 (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 under the
Securities Act) or the Disclosure Package 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( e )
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.
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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.
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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.
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The Company will, except as herein
provided, pay all fees, expenses and taxes (except transfer taxes)
in connection with the offering of the Bonds,
including with respect to (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, the Basic
Prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendment or supplement
thereto, except as otherwise provided in paragraph (e) 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.
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The Company will not sell any additional first
mortgage bonds without the consent of the Representatives 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.
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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.
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The Company agrees that, unless it has
obtained or will obtain, as the case may be, the prior written
consent of the Representatives, and each Underwriter, severally and
not jointly, agrees with the Company that, unless it has obtained
or will obtain, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating
to the Bonds that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing
Prospectus required to be filed by the Company with the Commission
or retained by the Company under Rule 433 under the Securities Act,
other than the final term sheet prepared and filed pursuant to
Section 6(b) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses identified in Parts A and B of Schedule
II hereto and any electronic road show identified in Part B of
Schedule II hereto. Any such Free Writing Prospectus consented to
by the Representatives or the Company is hereinafter referred to as
a "Permitted Free Writing Prospectus." The Company agrees that (x)
it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus and
(y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 under the Securities Act
applicable to any Permitted Free Writing Prospectus, including, if
applicable, in respect of timely filing with the Commission,
legending and record keeping.
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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:
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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 . ; and the final term sheet
contemplated by Section 6(b) hereto and any other material required
to be filed by the Company pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule
433.
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No stop order suspending the effectiveness
of the Registration Statement , or preventing or
suspending the use of the Basic Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, shall be
in effect at or prior to the Closing Date; no proceedings for such
purpose or pursuant to Section 8A of the
Securities Act against the Company or relating to the offering of
the Bonds 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 , as of the Closing Date, no
such stop order has been or is in effect and that no proceedings
for such purposes
are pending before or, to the knowledge of the Company, threatened
by the Commission.
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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 , one or more orders
of the Arkansas Public Service Commission and the Tennessee
Regulatory Authority authorizing the issuance and sale of the
Bonds on the terms
set forth in, or contemplated by, this Underwriting Agreement.
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At the Closing Date, the Underwriters shall
have received from Friday, Eldredge & Clark, LLP, [________] , Esq., Senior
Counsel - Corporate and Securities of Entergy Services, Inc., and
Thelen 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 Underwriters with the approval of Counsel
for the Underwriters, and (ii) if the Disclosure
Package or the Prospectus shall be
supplemented after being furnished to the Underwriters for use in
offering the Bonds ,
prior to the Closing Date , with changes
therein to reflect such supplementation.
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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 D
hereto, with such changes therein as may be necessary to reflect
any supplementation of the Disclosure Package or
the Prospectus prior to the Closing
Date.
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On or prior to the date this Underwriting
Agreement became effective, the Underwriters shall have received
from Deloitte & Touche LLP, the Company's independent
registered public accountants (the "Accountants"), a letter dated
the date hereof and addressed to the Underwriters to the effect
that (i) they are independent registered 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 Registration Statement, the Disclosure
Package and 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. 100, Interim
Financial Information , on the latest unaudited financial
statements, if any, included or incorporated by reference in the
Registration Statement, the Disclosure Package
and 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, other committees thereof specified therein and the stockholder of the Company, since December
31, [____] to a specified date not more than three business 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
Registration Statement, the Disclosure Package
and 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; (C) at the date of the
latest available balance sheet read by the Accountants and at a
subsequent specified date not more than
three business days
prior to the date of the letter, there was any change in the
capital stock of the Company, increase in long-term debt of the
Company, or decrease in its net current assets or stockholders'
equity, in each case as compared with amounts shown in the most
recent balance sheet incorporated by reference in the Registration Statement, the Disclosure Package and
the Prospectus, except in all instances
for changes , increases or decreases which the
Registration Statement, the Disclosure Package or 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
on long-term debt, 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 , increases or decreases as set
forth in such letter, identifying the same and specifying the
amount thereof; and (D) for the period from the closing date of the
most recent income statement incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus
to the closing date of the latest available income statement read
by the Accountants, there were any decreases, as compared to the
corresponding period in the preceding year, in operating revenues,
operating income or net income, except in all instances for
decreases that the Registration Statement, the Disclosure Package
or the Prospectus discloses have occurred or may occur 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 Registration Statement, the Disclosure Package and
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 E hereto, in each case,
to the extent that such amounts, numbers, percentages and
information may be derived from the general accounting records of
the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in
such letter, and
found them to be in agreement.
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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) as of the Closing
Date, 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.
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At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Supplemental
Indenture.
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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 three business days prior to the Closing Date, the statements
contained in the letter delivered pursuant to Section 7(f)
hereof.
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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 (as defined therein) shall have occurred.
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On or prior to the Closing Date, the Underwriters shall have
received from the Company evidence reasonably satisfactory to the
Underwriters that the Bonds have received ratings of at least [___] from Moody's Investors
Service, Inc. and at l east [___] from Standard & Poor's Ratings Services.
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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.
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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
Representatives ,
materially impairs the investment quality of the Bonds .
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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.
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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
Representatives at any time on or prior to the
Closing Date 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 6
and in Section 10 hereof.
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Conditions of Company's Obligations
. The obligations of the Company hereunder shall be subject
to the following conditions:
-
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No stop order suspending the effectiveness
of the Registration Statement or preventing or
suspending the use of the Basic Prospectus, the Prospectus or any
Issuer Free Writing Prospectus shall be
in effect at or prior to the Closing Date, and no proceedings for
that purpose or pursuant to Section 8A of the
Securities Act against the Company or relating to the offering of
the Bonds shall be pending before, or
threatened by, the Commission on the Closing Date.
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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 , orders of the
Arkansas Public Service Commission and the Tennessee Regulatory
Authority 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 at any time on or prior to the Closing
Date upon notice thereof to the
Representatives. Any such termination shall be without liability of
any party to any other party, except as otherwise provided in
paragraph ( h ) of
Section 6 and in Section 10 hereof.
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Indemnification . 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
, the Prospectus, or any Issuer Free Writing
Prospectus or the information contained in the final term sheet
required to be prepared and filed
pursuant to Section 6(b) hereof , as each may be amended or supplemented, in the Disclosure Package 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
, the Prospectus
or any Issuer Free Writing Prospectus or any amendment or supplement to any
thereof or the Disclosure Package (it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 9(b) hereof) 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 any Issuer
Free Writing Prospectus , each as may be then supplemented or
amended, furnished by such Underwriter to a person to whom any of
the Bonds were sold
(excluding in all
cases, however, any document then incorporated by reference
therein), insofar as such indemnity relates to any untrue or
misleading statement or omission made in such
Basic Prospectus or Issuer Free Writing Prospectus, if a copy of a
supplement or amendment to such Basic Prospectus, or Issuer Free
Writing Prospectus (excluding in all cases, however, any
document then incorporated by reference therein)
(i) is furnished on a timely basis by
the Company to the Underwriter, (ii) is required to have been
conveyed to such person by or on behalf of such Underwriter, at or
prior to the Applicable Time, but was not so conveyed (which
conveyance may be oral (if permitted by law) or written) by or on
behalf of such Underwriter and (iii) would have cured the defect
giving rise to such loss, claim, damage, liability, expense or
action .
-
-
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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 , the Prospectus or any Issuer Free
Writing Prospectus, or any amendment or supplement thereto, or in
the Disclosure Package 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 , the Prospectus
or any Issuer Free Writing Prospectus, or any amendment or
supplement thereto or the Disclosure Package. The Company
acknowledges that the statements set forth in [_______________] in
the Prospectus Supplement constitute the only information furnished
in writing by or on behalf of the several Underwriters for
inclusion in the Registration Statement, the Basic Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and the Dis
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