Exhibit 1.01
Entergy Arkansas,
Inc.
$[ ],000,000
First Mortgage Bonds,
[ ]% Series due [ ], 20[ ]
UNDERWRITING
AGREEMENT
[ ], 20[ ]
[Name(s) of Underwriters(s)]
c/o [Name(s) of
Representatives(s)]
[
Address(es) of Representative(s) ]
Ladies and Gentlemen:
The undersigned, Entergy Arkansas, Inc.,
an Arkansas corporation (the "Company"), proposes to issue and sell
to the several underwriters set forth on 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 $[ ],000,000 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").
-
- 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 on
Schedule I attached hereto.
-
- 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 Mellon 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.
- Representations and
Warranties of the Company .
The Company
represents and warrants to the several Underwriters, and covenants
and agrees with the several Underwriters, that:
-
-
- 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 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.
- 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
First Mortgage Bonds, including the Bonds
, under the Securities Act of 1933 (the
"Securities Act") ( [all] of which First Mortgage Bonds remain unsold as of the date
hereof), and such registration statement[, as amended,] 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 First
Mortgage Bonds 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 First Mortgage Bonds 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, as
so amended, 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, 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."
- (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 or the Disclosure Package
(except any amendment or supplement relating solely to First
Mortgage Bonds of the Company other than the Bonds ) , 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 First Mortgage Bonds 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
, as the case may be.
- 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
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").
- 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 [ ] p.m. New York time ([ ] p.m. Central time)
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 term sheet attached as Annex A to Schedule II
hereto) (the "Applicable Time"), (y) the Free Writing Prospectuses,
if any, identified in Part A of Schedule II hereto and (z) any
additional information, if any, identified in Part D 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.
- 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)
- 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.
- 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.
- 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).
- 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 plus accrued interest
thereon, if any, from the Closing Date
.
-
- Time and Place of
Closing; Delivery of the Bonds . Delivery of the Bonds and
payment to the Company of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New
York, New York 10178, 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.
-
- Covenants of the
Company .
The Company
covenants and agrees with the several Underwriters that:
-
-
- 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.
-
-
- 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.
- 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.
- 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.
- 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 or the Disclosure Package
is delivered (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under
the Securities Act) 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.
- 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.
- 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.
- 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 or any other documents
required to perfect the lien thereunder, (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, any 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
Financial Industry Regulatory Authority ("FINRA") 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 the (A)
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.
- The Company will not sell
any additional first mortgage bonds without the consent of the
Representatives until after 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.
- 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.
- 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) hereof; 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
- Conditions of the 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:
-
-
- 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) hereof 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 under the
Securities Act.
- 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, authorized to act for 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.
- 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.
- At the Closing Date,
the Underwriters shall have received from Friday, Eldredge &
Clark, LLP, Edna M. Chism, Esq., Assistant
General Counsel of Entergy Services, Inc., and Morgan, Lewis
& Bockius 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.
- 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.
- 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, 2008 to a specified date not more than
five days prior to the date of such letter, and inquiries of
officers of the Company who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance with
generally accepted auditing standards and they would not
necessarily reveal matters of significance with respect to the
comments made in such letter and, accordingly, that the Accountants
make no representations as to the sufficiency of such procedures
for the purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the 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
five days prior to
the date of the letter, there was any 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 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 amortization of premium
or discount 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 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 the Company's 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.
- 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.
- At the Closing Date, the
Underwriters shall have received duly executed counterparts of the
Supplemental Indenture.
- At the Closing Date, the Underwriters shall
have received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
- 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.
- 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.
- 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.
- 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 .
- 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.
- 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.
-
- Conditions of the
Company's Obligations .
The
obligations of the Company hereunder shall be subject to the
following conditions:
-
-
- 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.
- 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.
-
-
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, 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; 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 Section 9(a) 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 entry into
the contract of sale of the Bonds with such person, 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.
-
-
- Each Underwriter
shall severally, but not jointly, 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 (i) the last
paragraph of the cover page of the Prospectus regarding delivery of
the Bonds and (ii) the [ ] paragraph, [ ] paragraph and [ ]
paragraph under the caption "Underwriting" in the Prospectus
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.
- 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 two
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
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one
separate firm of attorneys for such indemnified party (plus any
local counsel retained by such indemnified party in its reasonable
judgment)). The indemnified party shall be reimbursed for all such
fees and expenses as they are incurred. The indemnifying party
shall not be liable for any settlement of any such action effected
without its consent, but if any such action is settled with the
consent of the indemnifying party or if there be a final judgment
for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending o
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