Exhibit 1(a)
Entergy Mississippi,
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 Mississippi, Inc., a Mississippi
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
February 1, 1988, with The Bank of New York (successor to Bank of
Montreal Trust Company), as Corporate Trustee (the "Corporate
Trustee"), and Stephen J. Giurlando (successor to Z. George
Klodnicki), as Co-Trustee (the "Co-Trustee" and, together with the
Corporate Trustee, the "Trustees"), as heretofore amended and
supplemented by all indentures amendatory thereof and supplemental
thereto, and as it will be further amended and supplemented by the
[_________] 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 Mississippi and has
the necessary corporate power and authority to conduct the business
that it 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 State of Arkansas.
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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 $300,000,000 aggregate
offering price of the Company's securities, including the Bonds,
under the Securities Act of 1933 (the "Securities Act")
($[_________] 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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As of the date of the financial statements filed with the Company's
most recent Quarterly Report on Form 10-Q or Annual Report on Form
10-K, each of the Company and Entergy Corporation ("Entergy") had
common equity of at least thirty percent (30%) of "total
capitalization" (within the meaning of the order of the Commission
(Release No. 35-27787) under the Public Utility Holding Company Act
of 1935 (the "Holding Company Act") authorizing the issuance and
sale of the Bonds) (the "Holding Company Act Order").
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All outstanding securities of each of the Company and Entergy that
are rated are "rated 'investment grade'" (within the meaning of the
Holding Company Act Order) by any nationally recognized statistical
rating organization as that term is used in paragraphs
(c)(2)(vi)(E), (F) and (H) of Rule 15c3-1 under the Exchange
Act.
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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, the Holding Company Act Order shall be in full
force and effect, to the extent legally required for 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
[__________], Esq., Senior Counsel-Corporate and Securities of
Entergy Services, Inc., Wise Carter Child & Caraway,
Professional Association, Friday, Eldredge & Clark, LLP, and
Thelen Reid & Priest LLP opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A, B, C and D
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 E 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 F 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 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 least [____]
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, the Holding Company Act Order shall be in full
force and effect, to the extent legally required for 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 Disclosure Package.
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In case any action shall be brought, based upon the Registration
Statement, the Basic Prospectus, the Prospectus, any Issuer Free
Writing Prospectus or the Disclosure Package, against any party in
respect of which indemnity may be sought pursuant to either 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 of any such action 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 sub
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