EXHIBIT 1.01
_________ Preferred Securities
Entergy Gulf States Capital I
__% Cumulative Quarterly Income Preferred Securities, Series A
("QUIPS"_)
(liquidation preference $25 per preferred security)
fully and unconditionally guaranteed, as set forth herein, by
Entergy Gulf States, Inc.
UNDERWRITING AGREEMENT
_________ __, 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
[Other Managers]
As representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
The undersigned, Entergy Gulf States Capital I (the
"Trust"), a statutory business trust created under the Business
Trust Act of the State of Delaware (Title 12, Chapter 38 of the
Delaware Code, 12 Del. C. Section 3801 et seq.) (the "Delaware
Act"), proposes to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters," which term, when
the context permits, shall also include any underwriters
substituted as hereinafter in Section 11 provided), for whom you
are acting as representatives (in such capacity, you shall
hereinafter be referred to as the "Representatives"),
______________ of its __% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security), representing undivided beneficial interests in the
assets of the Trust (the "Preferred Securities"), as follows:
__________________________
_ QUIPS is a servicemark of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Trust shall issue
and sell to each of the Underwriters named in Schedule I hereto,
and each Underwriter shall purchase from the Trust at the time
and place herein specified, severally and not jointly, the number
of Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto at a purchase price of $25.00
per Preferred Security.
The Company (as defined herein) (a) agrees to issue the
Company Securities (as defined herein) concurrently with the
issue and sale of the Preferred Securities as contemplated herein
and (b) guarantees the timely performance by the Trust of its
obligations under this Section 1. The Trust agrees to purchase
the Debentures (as defined herein) with the proceeds of the Trust
Securities (as defined herein) as contemplated herein.
Because the proceeds of the sale of the Preferred
Securities, together with the proceeds from the sale by the Trust
to the Company of the Common Securities (as defined herein), will
be used to purchase the Debentures, the Company hereby agrees to
pay on the Closing Date (as defined herein) to ▇▇▇▇▇▇▇, Sachs &
Co., for the accounts of the several Underwriters, as
compensation for their arranging the investment therein of such
proceeds, an amount equal to $_________ per Preferred Security
(or $_____________ in the aggregate).
2. Description of Preferred Securities. The Preferred
Securities will be guaranteed by Entergy Gulf States, Inc., a
Texas corporation (the "Company" and, together with the Trust,
the "Offerors"), with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee") pursuant
to, and to the extent set forth in, the Guarantee Agreement (the
"Guarantee Agreement"), dated as of __________ __, 1997, between
the Company and The Bank of New York, as trustee (the "Guarantee
Trustee"). Under an agreement as to expenses and liabilities
between the Company and the Trust, pursuant to the Trust
Agreement (as defined herein), dated as of __________ __, 1997
(the "Expense Agreement"), the Company will irrevocably and
unconditionally guarantee to each person or entity to whom the
Trust becomes indebted or liable the full payment of any costs,
expenses or liabilities of the Trust, subject to certain
exceptions therein.
The proceeds from the sale of the Preferred Securities
will be combined with the proceeds from the sale by the Trust to
the Company of its common securities representing undivided
beneficial interests in the assets of the Trust (the "Common
Securities" and, together with the Preferred Securities, the
"Trust Securities"), and will be used by the Trust to purchase
$________ aggregate principal amount of __% Junior Subordinated
Deferrable Interest Debentures, Series A, due ________ __, 2046
issued by the Company (the "Debentures" and, together with the
Guarantee, the "Company Securities"). The Trust Securities will
be issued pursuant to the Amended and Restated Trust Agreement of
the Trust, dated as of _________ __, 1997 (the "Trust
Agreement"), among the Company, as depositor, the Administrative
Trustees (as defined herein), The Bank of New York, as property
trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust. The Debentures will be issued pursuant
to an Indenture, dated as of ________ __, 1997, as supplemented
by a certificate of an officer of the Company pursuant to
resolutions of the Board of Directors of the Company (the
"Indenture"), between the Company and The Bank of New York, as
trustee (the "Debenture Trustee"). The Preferred Securities and
the Company Securities are referred to herein as the
"Securities."
3. Representations and Warranties of the Offerors. Each of
the Offerors jointly and severally represents and warrants to the
several Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Texas
and has the necessary corporate power and authority to conduct
the business that it is described in the Prospectus (as defined
herein) as conducting, to own and operate the properties owned
and operated by it in such business, to issue the Company
Securities, to enter into and perform its obligations under this
Underwriting Agreement, the Trust Agreement, the Indenture, the
Guarantee Agreement, the Expense Agreement and the Company
Securities, to purchase, own, and hold the Common Securities
issued by the Trust and to consummate the transactions herein and
therein contemplated.
(b) The Trust has been duly created and is validly
existing as a business trust in good standing under the Delaware
Act, has the power and authority to own its property, to conduct
its business as described in the Prospectus, to issue and sell
the Trust Securities, to enter into and perform its obligations
under this Underwriting Agreement and the Trust Securities and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated by
this Underwriting Agreement and described in the Prospectus; the
Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus, and is not a party to any
action, suit or proceeding of any nature; the Trust is not and
will not be classified as an association taxable as a corporation
for United States federal income tax purposes; and the Trust is
and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(c) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-2 (File Nos. 333-_____ and 333-_____-01) and a related
Preliminary Prospectus for the registration of the Securities
under the Securities Act of 1933, as amended (the "Securities
Act"), and such registration statement, as amended, has become
effective. The Offerors qualify for use of Form S-2 for the
registration of the Securities. Such registration statement, as
amended at the time it (or the most recent post-effective
amendment thereto) became effective, including the information
deemed to be part thereof pursuant to Rule 430A(b) under the
Securities Act, is hereinafter referred to as the "Registration
Statement", and the prospectus constituting a part thereof,
including the documents incorporated by reference therein
pursuant to Item 12 of Form S-2 under the Securities Act, in the
form filed pursuant to Rule 424(b)(1) or (b)(4) under the
Securities Act and as it may thereafter be amended or
supplemented pursuant to Section 6(d) hereof, is hereinafter
referred to as the "Prospectus," except that if any revised
prospectus shall be provided to the Underwriters by the Offerors
for use in connection with the offering of the Securities that
differs from the Prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act), the term "Prospectus"
shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. For purposes
herein, "Preliminary Prospectus" shall mean any preliminary
prospectus included in the Registration Statement prior to the
time the Registration Statement became effective or filed with
the Commission pursuant to Rule 424(a) under the Securities Act.
(d) After the time of effectiveness of this Underwriting
Agreement and during the time specified in Section 6(d), the
Offerors will not file any amendment to the Registration
Statement or supplement to the Prospectus, without prior notice
to the Underwriters and to Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
("Counsel for the Underwriters"), or any such amendment or
supplement to which said Counsel shall reasonably object on legal
grounds in writing.
(e) The Registration Statement, at the time it became
effective, the Indenture, the Trust Agreement and the Guarantee
Agreement, at such time, and any Preliminary Prospectus, when
delivered to the Underwriters for their use in marketing the
Preferred Securities, fully complied, and the Prospectus, when
delivered to the Underwriters for their use in making
confirmations of sales of the Preferred Securities and at the
Closing Date, as it may then be amended or supplemented, will
fully comply, in all material respects with the applicable
provisions of the Securities Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder or pursuant to said
rules and regulations did or will be deemed to comply therewith.
The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-2, on the date filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), fully complied in all material
respects with the applicable provisions of the Exchange Act and
the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations did or will be deemed to
comply therewith. On the date the Registration Statement was
declared effective by the Commission under the Securities Act,
the Registration Statement did not, and on the date that any post-
effective amendment to the Registration Statement becomes
effective, the Registration Statement, as amended by any such
post-effective amendment, will not contain any 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 any Preliminary Prospectus was
delivered to the Underwriters for their use in marketing the
Preferred Securities, such Preliminary 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 delivered to the
Underwriters for their use in making confirmations of sales of
the Preferred Securities and at the Closing Date, the Prospectus,
as it may then be amended or supplemented, will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not
misleading. The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-2, on the date filed
with the Commission pursuant to the Exchange Act, did 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 (e) shall not apply to statements or omissions made in
reliance upon and in conformity with written information
furnished to the Offerors by the Underwriters or on behalf of any
Underwriter specifically for use in connection with the
preparation of the Registration Statement or the Prospectus, as
they may be then amended or supplemented, or to any statements in
or omissions from the statements of eligibility on Form T-1 of
the Property Trustee, the Guarantee Trustee and the Debenture
Trustee, respectively, as they may be amended, filed as exhibits
to the Registration Statement (the "Form T-1s").
(f) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to
the Company against payment therefor as described in the
Registration Statement and Prospectus, will constitute validly
issued undivided beneficial interests in the assets of the Trust
and will be entitled to the benefits of the Trust Agreement; the
issuance of the Common Securities is not subject to preemptive or
other similar rights; at the Closing Date, all of the Common
Securities will be directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Common Securities will conform to the
description thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Company.
(h) The Trust Agreement has been duly qualified under the
Trust Indenture Act, has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered
by the Company and each of the Administrative Trustees, and
assuming due authorization, execution and delivery of the Trust
Agreement by the Property Trustee and the Delaware Trustee, will
constitute a valid and binding instrument of the Company and the
Administrative Trustees, enforceable against the Company and the
Administrative Trustees in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law); and the Trust Agreement will conform to the
description thereof in the Prospectus.
(i) The Guarantee Agreement has been duly qualified under
the Trust Indenture Act, has been duly authorized by the Company
and, at the Closing Date, will have been duly executed and
delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreement by the
Guarantee Trustee, will constitute a valid and binding instrument
of the Company, enforceable against the Company in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law); and the Guarantee and the
Guarantee Agreement will conform to the descriptions thereof
contained in the Prospectus.
(j) The Preferred Securities have been duly authorized by
the Trust Agreement and, on the Closing Date, will have been duly
executed by an Administrative Trustee and, when issued and
delivered against payment therefor in accordance with the
provisions of this Agreement and the Trust Agreement, will
constitute validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will be entitled to the
benefits of the Trust Agreement; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights;
holders of Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; and the Preferred
Securities will conform to the description thereof contained in
the Prospectus.
(k) The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized by the Company and, at
the Closing Date, will have been duly executed and delivered by
the Company, and assuming due authorization, execution and
delivery of the Indenture by the Debenture Trustee, will
constitute a valid and binding instrument of the Company,
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Indenture will conform
to the description thereof contained in the Prospectus.
(l) The Debentures have been duly authorized and, on the
Closing Date, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture
and delivered against payment therefor by the Trust as described
in the Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance
with their terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law) and will be entitled to the
benefits of the Indenture; and the Debentures will conform to the
description thereof contained in the Prospectus.
(m) The Expense Agreement has been duly authorized by the
Company and, at the Closing Date, will have been duly executed
and delivered by the Company, and will constitute a valid and
binding instrument of the Company, enforceable against the
Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law); and the Expense Agreement will conform to the description
thereof contained in the Prospectus.
(n) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, in their capacities as administrative trustees (the
"Administrative Trustees") under the Trust Agreement, are
employees of the Company and have been duly authorized by the
Company to execute and deliver the Trust Agreement.
(o) The Trust is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(p) The Trust is not in violation of its Certificate of
Trust filed with the State of Delaware on December __, 1996 or
the Trust Agreement; the execution, delivery and performance by
the Company and the Trust of their respective obligations under
this Underwriting Agreement, the Trust Agreement, the Trust
Securities, the Indenture, the Guarantee Agreement, the Company
Securities and the Expense Agreement will not result in a breach
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement
or instrument to which the Company or the Trust is now a party.
(q) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes.
(r) Except as set forth or contemplated in the Prospectus,
as it may then be amended or supplemented, the Company possesses
adequate franchises, licenses, permits, and other rights to
conduct its respective business and operations as now conducted,
without any known conflicts with the rights of others that could
have an adverse effect on the Company.
4. Offering. The Offerors are advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities
as soon after the effectiveness of this Underwriting Agreement as
in their judgment the Underwriters deem advisable. The Offerors
are further advised by the Representatives that the Preferred
Securities will be offered to the public at the initial public
offering price specified in the Prospectus.
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of certificates for the Preferred
Securities and payment of the purchase price therefor by wire
transfer of immediately available funds shall be made at the
offices of ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, at 10:00 A.M., New York time, on ________ __, 1997, or at
such other time on the same or such other day as shall be agreed
upon by the Offerors 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."
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and in such
denominations as the Underwriters shall request not later than
two full business days prior to the Closing Date. The
certificates evidencing the Preferred Securities shall be
delivered to the Representatives through the facilities of The
Depository Trust Company in New York, New York ("DTC") for the
account of the Representatives with any transfer taxes payable in
connection with the transfer of the Preferred Securities duly
paid, against payment of the purchase price therefor.
On the Closing Date, the Company will pay, or cause to
be paid, the compensation payable at such time to the
Underwriters pursuant to Section 1 hereof by wire transfer in
immediately available funds to an account designated by ▇▇▇▇▇▇▇,
Sachs & Co., for the accounts of the several Underwriters.
6. Covenants of the Offerors. Each of the Offerors jointly
and severally covenants and agrees with the several Underwriters
that:
(a) Not later than the Closing Date, the Company will
deliver to the Representatives a copy of the Registration
Statement in the form that it became effective or a conformed
copy thereof, certified by an officer of the Company to be in
such form.
(b) The Company will deliver to the Underwriters as many
copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with,
or transmitted for filing to, the Commission pursuant to and in
compliance with Rule 424(b) and will advise the Representatives
promptly of the issuance of any stop order under the Securities
Act with respect to the Registration Statement or the institution
of any proceedings therefor of which either of the Offerors shall
have received notice. Each of the Offerors will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company or the Trust, or of which the Company or
the Trust shall be advised by the Representatives in writing,
shall occur which in the opinion of the Company should be set
forth in a supplement or amendment to the Prospectus in order to
make the Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser of the
Preferred Securities, the Company will amend or supplement the
Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in which
case the Underwriters shall assume the expense of preparing any
such amendment or supplement), the expenses of complying with
this Section 6(d) shall be borne by the Company until the
expiration of nine months from the time of effectiveness of this
Underwriting Agreement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make
generally available to the Trust's security holders, as soon as
practicable, an earning statement (which need not be audited)
covering a period of at least twelve months beginning after the
"effective date of the registration statement" within the meaning
of Rule 158 under the Securities Act, which earning statement
shall be in such form, and be made generally available to
security holders in such a manner, as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the
Offerors will furnish such proper information as may be lawfully
required, and will otherwise cooperate in qualifying the
Preferred Securities and the Debentures for offer and sale, under
the blue sky laws of such jurisdictions as the Representatives
may reasonably designate, provided that the Offerors 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 Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes incident to the performance of each
Offeror's obligations under this Underwriting Agreement
including, but not limited to, (i) the preparation and filing of
the Registration Statement and any post-effective amendment
thereto, (ii) the printing, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters,
(iii) legal counsel relating to the qualification of the
Preferred Securities and the Debentures under the blue sky laws
of various jurisdictions, in an amount not to exceed $6,000, (iv)
the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, the
preliminary (or any supplemental) blue sky survey, any
Preliminary Prospectus and the Prospectus and any amendment or
supplement thereto, except as otherwise provided in paragraph (d)
of this Section 6, (v) the rating of the Preferred Securities and
the Debentures by one or more nationally recognized statistical
rating agencies, (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, and (vii) the listing of the Preferred
Securities and, if applicable, the Debentures on the New York
Stock Exchange (the "NYSE") and the registration thereof under
the Exchange Act in accordance with Section 6(i) hereof. 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 incurred in contemplation of the
performance of this Underwriting Agreement. The Company shall
not in any event be liable to the Underwriters for damages on
account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to
sell or otherwise dispose of any Preferred Securities, any other
beneficial interests in the assets of the Trust, or any preferred
securities or any other securities of the Trust or the Company
that are substantially similar to the Preferred Securities,
including any guarantee of such securities, or any securities
convertible into or exchangeable for or that represent the right
to receive securities, preferred securities or any such
substantially similar securities of either the Trust or the
Company, except for the Trust Securities and the Guarantee,
without the consent of the Representatives until the earlier to
occur of (i) thirty (30) days after the Closing Date and (ii) the
date of the termination of the trading restrictions on the
Preferred Securities, as determined by the Underwriters. The
Representatives agree to notify the Offerors of such termination
if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the
Preferred Securities to be duly authorized for listing on the
NYSE, subject to notice of issuance, and to be registered under
the Exchange Act; if the Preferred Securities are exchanged for
Debentures, the Company will use its best efforts to have the
Debentures listed on the exchange or other organization on which
the Preferred Securities were then listed, and to have the
Debentures registered under the Exchange Act.
7. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Preferred
Securities 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 Offerors and of any certificates
furnished by the Offerors on the Closing Date and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Offerors and the
Representatives.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Offerors 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 and an authorized
representative of the Trust, to the effect that no such stop
order has been or is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company or
the Trust, as the case may be, threatened by the Commission.
(c) At the Closing Date, there shall have been issued and
there shall be in full force and effect an order of the
Commission under the Public Utility Holding Company Act of 1935,
as amended (the "1935 Act"), authorizing the issuance and sale of
the Securities.
(d) At the Closing Date, the Underwriters shall have
received from ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Attorney -
Corporate and Securities of Entergy Services, Inc., and ▇▇▇▇ &
Priest LLP, opinions, dated the Closing Date, substantially in
the forms set forth in Exhibits A and B hereto, respectively,
(i) with such changes therein as may be agreed upon by the
Offerors and the Representatives, with the approval of Counsel
for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for use in
offering the Preferred Securities, with changes therein to
reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware
counsel for the Company and the Trust, an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit C
hereto (i) with such changes therein as may be agreed upon by the
Offerors and the Representatives, with the approval of Counsel
for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for use in
offering the Preferred Securities, with changes therein to
reflect such supplementation.
(f) 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 Prospectus prior to the Closing Date.
(g) On or prior to the effective date of this Underwriting
Agreement, the Underwriters shall have received from Coopers &
▇▇▇▇▇▇▇ L.L.P., the Company's independent certified public
accountants (the "Accountants"), a letter dated the date hereof
and addressed to the Underwriters to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ 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 examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations thereunder; (B) any
material modifications should be made to said unaudited financial
statements for them to be in conformity with generally accepted
accounting principles; and (C) at a specified date not more than
five days prior to the date of the letter, there was any change
in the capital stock or long-term debt of the Company, or
decrease in its net assets, in each case as compared with amounts
shown in the most recent balance sheet incorporated by reference
in the Prospectus, except in all instances for changes or
decreases which the Prospectus discloses have occurred or may
occur, for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of premium or
discount on long-term debt, for the redemption or purchase of
preferred stock for sinking fund purposes, for any increases in
long-term debt in respect of previously issued pollution control,
solid waste disposal or industrial development revenue bonds, or
for changes or decreases as set forth in such letter, identifying
the same and specifying the amount thereof; and (iv) stating that
they have compared specific dollar amounts, percentages of
revenues and earnings and other financial information pertaining
to the Company set forth in the Prospectus to the extent that
such amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and excluding
any questions requiring an interpretation by legal counsel, with
the results obtained from the application of specified readings,
inquiries and other appropriate procedures (which procedures do
not constitute an examination in accordance with generally
accepted auditing standards) set forth in the letter, and found
them to be in agreement.
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, (ii) the Company has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Company at or prior to
the Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the Company
and there has not been any material transaction entered into by
the Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
(i) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by an
authorized representative of the Trust, to the effect that (i)
the representations and warranties of the Trust contained herein
are true and correct, (ii) the Trust has performed and complied
with all agreements and conditions in this Underwriting Agreement
to be performed or complied with by the Trust 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 Trust and
there has not been any material transaction entered into by the
Trust, 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.
(j) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture.
(k) 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(g) hereof.
(l) Between the date hereof and the Closing Date, no event
shall have occurred with respect to or otherwise affecting the
Company or the Trust that, in the reasonable opinion of the
Representatives, materially impairs the investment quality of the
Preferred Securities.
(m) Between the date hereof and the Closing Date neither
▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's shall have
lowered its rating of any of the Company's outstanding debt
securities in any respect.
(n) On or prior to the Closing Date, the Underwriters shall
have received from the Company evidence reasonably satisfactory
to ▇▇▇▇▇▇▇, Sachs & Co. that ▇▇▇▇▇'▇ Investors Service, Inc. and
Standard & Poor's have publicly assigned to the Preferred
Securities ratings of ___ and ___, respectively, which ratings
shall be in full force and effect on the Closing Date.
(o) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE and (ii) the Company's registration
statement on Form 8-A relating to the Preferred Securities shall
have become effective under the Exchange Act.
(p) All legal matters in connection with the issuance and
sale of the Preferred Securities shall be satisfactory in form
and substance to Counsel for the Underwriters.
(q) The Offerors will furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Offerors. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
8. Conditions of Obligations of the Offerors. The
obligations of the Offerors hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(b) At the Closing Date, there shall have been issued and
there shall be in full force and effect an order of the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities.
In case any of the conditions specified in this Section
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Offerors 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 (g) of Section 6 and in Section 10.
9. Indemnification.
(a) The Offerors 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 any Preliminary
Prospectus, or in the Prospectus, as each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Offerors by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement to any thereof or arising out of, or based upon,
statements in or omissions from the Form T-1s; 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 any Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Preferred
Securities to any person in respect of any Preliminary Prospectus
or the Prospectus as supplemented or amended, furnished by any
Underwriter to a person to whom any of the Preferred Securities
were sold (excluding in both cases, however, any document then
incorporated by reference therein), insofar as such indemnity
relates to any untrue or misleading statement or omission made in
any Preliminary Prospectus or the Prospectus but eliminated or
remedied prior to the consummation of such sale in the
Prospectus, or any amendment or supplement thereto furnished on a
timely basis by the Offerors to the Underwriters pursuant to
Section 6(d) hereof, respectively, unless a copy of the
Prospectus (in the case of such a statement or omission made in
any Preliminary Prospectus) or such amendment or supplement (in
the case of such a statement or omission made in the Prospectus)
(excluding, however, any document then incorporated by reference
in the Prospectus or such amendment or supplement) is furnished
by such Underwriter to such person (i) with or prior to the
written confirmation of the sale involved or (ii) as soon as
available after such written confirmation (if it is made
available to the Underwriters prior to settlement of such sale).
(b) The Company shall indemnify, defend and hold harmless
the Trust against any and all losses, claims, damages or
liabilities that may become due from the Trust under Section 9(a)
hereof.
(c) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, 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 any Preliminary Prospectus or in the
Prospectus, as each may be amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
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 Offerors by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto.
(d) In case any action shall be brought, based upon the
Registration Statement, any Preliminary Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) If the indemnification provided for under subsections
(a), (b), (c) or (d) in this Section 9 is unavailable to any
extent to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Offerors and the
Underwriters from the offering of the Preferred Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Offerors on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors
on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the
offering (after deducting underwriting discounts and commissions
but before deducting expenses) to the Offerors bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Offerors on
the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by any of the
Underwriters and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(e) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(e), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(e) are several in
proportion to their respective underwriting obligations and not
joint. The obligations of the Company under this Section 9 shall
be in addition to any liability which the Company may otherwise
have.
10.Survival of Certain Representations and Obligations. Any
other provision of this Underwriting Agreement to the contrary
notwithstanding, (a) the indemnity and contribution agreements
contained in Section 9 of, and the representations and warranties
and other agreements of the Offerors contained in, this
Underwriting Agreement shall remain operative and in full force
and effect regardless of (i) any investigation made by or on
behalf of any Underwriter or by or on behalf of the Offerors or
its directors or officers, or any of the other persons referred
to in Section 9 hereof and (ii) acceptance of and payment for the
Preferred Securities and (b) the indemnity and contribution
agreements contained in Section 9 shall remain operative and in
full force and effect regardless of any termination of this
Underwriting Agreement.
11. Default of Underwriters. If any Underwriter shall fail
or refuse (otherwise than for some reason sufficient to justify,
in accordance with the terms hereof, the cancellation or
termination of its obligations hereunder) to purchase and pay for
the Preferred Securities that it has agreed to purchase and pay
for hereunder, and the number of Preferred Securities that such
defaulting Underwriter agreed but failed or refused to purchase
is not more than one-tenth of the number of the Preferred
Securities, the other Underwriters shall be obligated to purchase
the Preferred Securities that such defaulting Underwriter agreed
but failed or refused to purchase; provided that in no event
shall the number of Preferred Securities that any Underwriter has
agreed to purchase pursuant to Schedule I hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth
of such number of Preferred Securities without written consent of
such Underwriter. If any Underwriter shall fail or refuse to
purchase Preferred Securities and the number of Preferred
Securities with respect to which such default occurs is more than
one-tenth of the number of the Preferred Securities, the Offerors
shall have the right (a) to require the non-defaulting
Underwriters to purchase and pay for the respective number of
Preferred Securities that it had severally agreed to purchase
hereunder, and, in addition, the number of Preferred Securities
that the defaulting Underwriter shall have so failed to purchase
up to an amount thereof equal to one-ninth of the respective
number of Preferred Securities that such non-defaulting
Underwriters have otherwise agreed to purchase hereunder, and/or
(b) to procure one or more others, members of the NASD (or, if
not members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who agree
in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
number of Preferred Securities that such defaulting Underwriter
had agreed to purchase, or that portion thereof that the
remaining Underwriters shall not be obligated to purchase
pursuant to the foregoing clause (a). In the event the Offerors
shall exercise its rights under clause (a) and/or (b) above, the
Offerors shall give written notice thereof to the Representatives
within 24 hours (excluding any Saturday, Sunday, or legal
holiday) of the time when the Offerors learn of the failure or
refusal of any Underwriter to purchase and pay for its respective
number of Preferred Securities, and thereupon the Closing Date
shall be postponed for such period, not exceeding three business
days, as the Offerors shall determine. In the event the Offerors
shall be entitled to but shall not elect (within the time period
specified above) to exercise its rights under clause (a) and/or
(b), the Offerors shall be deemed to have elected to terminate
this Underwriting Agreement. In the absence of such election by
the Offerors, this Underwriting Agreement will, unless otherwise
agreed by the Offerors and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
12. Termination. This Underwriting Agreement shall be
subject to termination by notice given by written notice from the
Representatives to the Offerors if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading of the Preferred Securities or trading in
securities generally shall have been suspended or materially
limited on the NYSE by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the NYSE by The New York Stock Exchange, Inc., the Commission
or other governmental authority, (iii) a general moratorium on
commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of
hostilities or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and (b) in the case
of any of the events specified in clauses (a)(i) through (iv),
such event singly or together with any other such event makes it,
in the reasonable judgment of the Representatives, impracticable
to market the Preferred Securities. This Underwriting Agreement
shall also be subject to termination, upon notice by the
Representatives as provided above, if, in the judgment of the
Representatives, the subject matter of any amendment or
supplement (prepared by the Offerors) to the Prospectus (except
for information relating solely to the manner of public offering
of the Preferred Securities or to the activity of the
Underwriters or to the terms of any series of securities of the
Offerors other than the Preferred Securities) filed or issued
after the effectiveness of this Underwriting Agreement by the
Offerors shall have materially impaired the marketability of the
Preferred Securities. Any termination hereof, pursuant to this
Section 12, shall be without liability of any party to any other
party, except as otherwise provided in paragraph (g) of Section 6
and in Section 10.
13. Miscellaneous. THE RIGHTS AND DUTIES OF THE PARTIES TO
THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. This Underwriting Agreement shall become
effective when a fully executed copy thereof is delivered to the
Offerors and to the Representatives. This Underwriting Agreement
may be executed in any number of separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an
original and all of which, taken together, shall constitute but
one and the same agreement. This Underwriting Agreement shall
inure to the benefit of each of the Offerors, the Underwriters
and, with respect to the provisions of Section 9, each director,
officer and other person referred to in Section 9, and their
respective successors. Should any part of this Underwriting
Agreement for any reason be declared invalid, such declaration
shall not affect the validity of any remaining portion, which
remaining portion shall remain in full force and effect as if
this Underwriting Agreement had been executed with the invalid
portion thereof eliminated. Nothing herein is intended or shall
be construed to give to any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of
any provision in this Underwriting Agreement. The term
"successor" as used in this Underwriting Agreement shall not
include any purchaser, as such purchaser, of any Preferred
Securities from the Underwriters.
14. Notices. All communications hereunder shall be in writing
and, if to the Underwriters, shall be mailed or delivered to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at the address set forth at the beginning of
this Underwriting Agreement (to the attention of its General
Counsel) or, if to the Offerors, shall be mailed or delivered to
it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer, or, if to Entergy Services, Inc., shall be mailed or
delivered to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasurer.
If the foregoing is in accordance with your
understanding, please sign and return to us counterparts of this
Underwriting Agreement, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Underwriting Agreement
and such acceptance hereof, shall constitute a binding agreement
among each of the Underwriters, the Company and the Trust. It is
understood that your acceptance of this Underwriting Agreement on
behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and the Trust
for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Entergy Gulf States, Inc.
By:
Name:
Title:
Entergy Gulf States Capital I
By: Entergy Gulf States, Inc.,
as Depositor
By:
Name:
Title:
Accepted as of the date first above written:
▇▇▇▇▇▇▇, Sachs & Co.
[Other Managers]
As representatives of the other several
Underwriters named in Schedule I hereto
By:
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
SCHEDULE I
Entergy Gulf States Capital I
__% Cumulative Quarterly Income Preferred Securities, Series A
Number of
Underwriter Preferred
Securities
▇▇▇▇▇▇▇, Sachs & Co.
_________
Total
EXHIBIT A
[Letterhead of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.]
_________ __,1997
▇▇▇▇▇▇▇, Sachs & Co.
[Other Managers]
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I, together with ▇▇▇▇ & Priest LLP, of New York, New
York, and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Wilmington, Delaware,
have acted as counsel for Entergy Gulf States, Inc., a Texas
corporation (the "Company"), and Entergy Gulf States Capital I, a
statutory business trust organized under the laws of the State of
Delaware (the "Trust"), in connection with the issuance and sale
by the Trust to the several Underwriters pursuant to the
Underwriting Agreement, effective _________ __, 1997 (the
"Underwriting Agreement"), among the Company, the Trust and you,
as the representatives of the several Underwriters, of
___________ __% Cumulative Quarterly Income Preferred Securities,
Series A (liquidation preference $25 per preferred security) (the
"Preferred Securities"), guaranteed to the extent the Trust has
funds by the Company. This opinion is rendered to you at the
request of the Company and the Trust. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
In my capacity as such counsel, I have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and Bylaws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Expense Agreement; (g) the
Registration Statement and Prospectus filed under the Securities
Act; (h) the records of various corporate proceedings relating to
the authorization, issuance and sale of the Company Securities
and the execution and delivery by the Company of the Indenture,
the Underwriting Agreement, the Trust Agreement, the Expense
Agreement and the Guarantee Agreement; and (i) the proceedings
before and the order entered by the Commission under the 1935 Act
relating to the issuance and sale of the Securities. I have also
examined or caused to be examined such other documents and have
satisfied myself as to such other matters as I have deemed
necessary in order to render this opinion. In such examination,
I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, and
the conformity to the originals of the documents submitted to me
as certified or photostatic copies. I have not examined the
Debentures, except a specimen thereof, and I have relied upon a
certificate of the Debenture Trustee as to the authentication and
delivery thereof.
In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to me as
copies. In making my examination of documents and instruments
executed or to be executed by persons other than the Company and
the Trust, I have assumed that each such other person had the
requisite power and authority to enter into and perform fully its
obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof by
such person, and the due execution and delivery by or on behalf
of such person of each such document and instrument. In the case
of any such other person that is not a natural person, I have
also assumed, insofar as it is relevant to the opinions set forth
below, that each such other person is duly organized, validly
existing and in good standing under the laws of the jurisdiction
in which such other person was created, and is duly qualified and
in good standing in each other jurisdiction where the failure to
be so qualified could reasonably be expected to have a material
effect upon the ability of such other person to execute, deliver
and/or perform such other person's obligations under any such
document or instrument. I have further assumed that each
document, instrument, agreement, record and certificate reviewed
by me for purposes of rendering the opinions expressed below has
not been amended by oral agreement, conduct or course of dealing
of the parties thereto, although I have no knowledge of any facts
or circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, I have relied upon certificates and
representations of officers of the Company and the Trust
(including but not limited to those contained in the Underwriting
Agreement, the Indenture, the Trust Agreement, the Expense
Agreement and the Guarantee Agreement and certificates delivered
at the closing of the sale of the Preferred Securities) and
appropriate public officials without independent verification of
such matters except as otherwise described herein.
Whenever my opinions herein with respect to the
existence or absence of facts are stated to be to my knowledge or
awareness, I intend to signify that no information has come to my
attention or the attention of any other attorneys acting for or
on behalf of the Company or the Trust or any of its affiliates
that have participated in the negotiation of the transactions
contemplated by the Underwriting Agreement, the Indenture, the
Trust Agreement, the Expense Agreement and the Guarantee
Agreement, in the preparation of the Registration Statement and
the Prospectus or in the preparation of this opinion letter that
would give me, or them, actual knowledge that would contradict
such opinions. However, except to the extent necessary in order
to give the opinions hereinafter expressed, neither I nor they
have undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to
knowledge of the existence or absence of such facts (except to
the extent necessary in order to give the opinions hereinafter
expressed) should be assumed.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, I am of the opinion that:
(1) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Texas, has due corporate power and authority to conduct the
business that it is described as conducting in the Prospectus, to
own and operate the properties owned and operated by it in such
business, to issue the Company Securities, to enter into and
perform its obligations under the Underwriting Agreement, the
Trust Agreement, the Indenture, the Expense Agreement, the
Guarantee Agreement and the Company Securities, to purchase, own,
and hold the Common Securities issued by the Trust and to
consummate the transactions therein contemplated, and is duly
qualified to conduct such business in the States of Texas and
Louisiana.
(2) The statements made in the Prospectus under the
captions "Risk Factors and Issues Facing the Company", "Entergy
Gulf States Capital I", "Description of Preferred Securities",
"Description of Guarantee", "Description of the Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the Guarantee"
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(3) The Debentures have been duly and validly authorized by
all necessary corporate action on the part of the Company, and
are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits provided by the Indenture.
(4) The Indenture has been duly and validly authorized by
all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to my knowledge, threatened by the Commission.
(5) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to my knowledge,
threatened by the Commission.
(6) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(7) The Trust Agreement has been duly authorized, executed
and delivered by the Company; the Underwriting Agreement has been
duly authorized, executed and delivered by the Company on behalf
of itself and as depositor under the Trust Agreement; and the
Preferred Securities have been duly executed and delivered by an
Administrative Trustee.
(8) The Trust Agreement is duly qualified under the Trust
Indenture Act, and no proceedings to suspend such qualification
have been instituted or, to my knowledge, threatened by the
Commission.
(9) The issuance and sale by the Company of the Company
Securities and the execution, delivery and performance by the
Company of the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement and the Guarantee Agreement (a)
will not violate any provision of the Company's Restated Articles
of Incorporation or Bylaws, each as amended, (b) will not violate
any provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance on
or security interest in any of the assets of the Company pursuant
to the provisions of, any mortgage, indenture, contract,
agreement or other undertaking known to me (having made due
inquiry with respect thereto) to which the Company is a party or
which purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of my
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction).
(10) Except in each case as to the financial statements and
other financial data included or incorporated by reference
therein, upon which we do not pass, the Registration Statement,
at the time it became effective, and the Prospectus, as of its
date, complied as to form in all material respects with the
applicable requirements of the Securities Act and (except with
respect to the Form T-1s, upon which we do not pass) the Trust
Indenture Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; with respect to the documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-2, such documents or portions thereof, on the date they
were filed with the Commission, complied as to form in all
material respects with the applicable provisions of the Exchange
Act and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act, and, to the best of my knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(11) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Securities; to the best of my knowledge, said order is in
full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than
orders of the Commission under the Securities Act, the Exchange
Act and the Trust Indenture Act, which have been duly obtained,
or in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities; and
no further approval, authorization, consent or other order of any
governmental body is legally required to permit the performance
by the Trust of its obligations with respect to the Preferred
Securities, or by the Company of its obligations with respect to
the Company Securities or under the Indenture, the Underwriting
Agreement, the Trust Agreement, the Expense Agreement or the
Guarantee Agreement.
(12) All of the issued and outstanding Common Securities of
the Trust are owned of record by the Company.
In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, I
have had discussions with certain of the officers and
representatives of the Company and the Trust, with other counsel
for the Company and the Trust, and with the independent certified
public accountants of the Company who examined certain of the
financial statements included or incorporated by reference in the
Registration Statement. My examination of the Registration
Statement and the Prospectus and such discussions did not
disclose to me any information which gives me reason to believe
that (i) the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus, as of its date and at the date hereof, contained
or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and (ii) the documents
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-2, on the date filed with the Commission pursuant to
the Exchange Act, contained any untrue statement of a material
fact or omitted 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. I do not express any
opinion or belief as to the financial statements or other
financial data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the Form T-1s or
as to the information contained in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations."
I have examined the opinions of even date herewith
rendered to you by ▇▇▇▇ & Priest LLP and Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, and concur in the conclusions expressed therein
insofar as they involve questions of Texas and Louisiana law.
I am a member of the Texas Bar and the Louisiana Bar
and do not hold myself out as an expert on the laws of any other
state. As to all matters of New York law, I have relied, with
your approval, upon the opinion of even date herewith addressed
to you by ▇▇▇▇ & Priest LLP of New York, New York, and, as to all
matters of Delaware law, I have relied, with your approval, upon
the opinion of even date herewith addressed to you by ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., of Wilmington, Delaware.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without my prior written
consent, except that ▇▇▇▇ & Priest LLP and Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely on this opinion as to all matters of
Texas and Louisiana law in rendering their opinions required to
be delivered under the Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of ▇▇▇▇ & Priest LLP]
________ __, 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
[Other Managers]
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We, together with ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General
Attorney - Corporate and Securities of Entergy Services, Inc.,
and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Wilmington, Delaware, have
acted as counsel for Entergy Gulf States Inc., a Texas
corporation (the "Company"), and Entergy Gulf States Capital I, a
statutory business trust organized under the laws of the State of
Delaware (the "Trust"), in connection with the issuance and sale
by the Trust to the several Underwriters pursuant to the
Underwriting Agreement, effective ______ __, 1997 (the
"Underwriting Agreement"), among the Company, the Trust and you,
as the representatives of the several Underwriters, of __________
__% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per preferred security) (the
"Preferred Securities"), guaranteed to the extent the Trust has
funds by the Company. This opinion is rendered to you at the
request of the Company and the Trust. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and Bylaws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Trust Agreement; (e) the
Guarantee Agreement; (f) the Expense Agreement; (g) the
Registration Statement and Prospectus filed under the Securities
Act; (h) the records of various corporate proceedings relating to
the authorization, issuance and sale of the Company Securities
and the execution and delivery by the Company of the Indenture,
the Underwriting Agreement, the Trust Agreement, the Expense
Agreement and the Guarantee Agreement; and (i) the proceedings
before and the order entered by the Commission under the 1935 Act
relating to the issuance and sale of the Securities. We have
also examined or caused to be examined such other documents and
have satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to the originals of the documents submitted to
us as certified or photostatic copies. We have not examined the
Debentures, except a specimen thereof, and we have relied upon a
certificate of the Debenture Trustee as to the authentication and
delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(13) The Indenture has been duly and validly authorized by
all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and is duly qualified under the Trust Indenture Act,
and no proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the Commission.
(14) The Debentures have been duly and validly authorized by
all necessary corporate action on the part of the Company, and
are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits provided by the Indenture.
(15) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(16) The Expense Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(17) The Trust Agreement is duly qualified under the Trust
Indenture Act, and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(18) The statements made in the Prospectus under the
captions "Risk Factors and Issues Facing the Company", "Entergy
Gulf States Capital I", "Description of Preferred Securities",
"Description of Guarantee", "Description of the Junior
Subordinated Debentures" and "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the Guarantee"
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(19) The statements made in the Prospectus under the caption
"Certain United States Federal Income Tax Considerations"
constitute a fair and accurate summary of the matters addressed
therein, based upon current law and the assumptions stated or
referred to therein.
(20) The Trust is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(21) Except in each case as to the financial statements and
other financial data included or incorporated by reference
therein, upon which we do not pass, the Registration Statement,
at the time it became effective, and the Prospectus, as of its
date, complied as to form in all material respects with the
applicable requirements of the Securities Act and (except with
respect to the Form T-1s, upon which we do not pass) the Trust
Indenture Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; with respect to the documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-2, such documents or portions thereof, on the date they
were filed with the Commission, complied as to form in all
material respects with the applicable provisions of the Exchange
Act and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(22) An appropriate order has been entered by the Commission
under the 1935 Act authorizing the issuance and sale of the
Securities; to the best of our knowledge, said order is in full
force and effect; no further approval, authorization, consent or
other order of any governmental body (other than orders of the
Commission under the Securities Act, the Exchange Act and the
Trust Indenture Act, which have been duly obtained, or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the issuance and sale of the Securities; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the performance by the Trust of its
obligations with respect to the Preferred Securities, or by the
Company of its obligations with respect to the Company Securities
or under the Indenture, the Underwriting Agreement, the Trust
Agreement, the Expense Agreement or the Guarantee Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and the Trust and information included or incorporated by
reference in the Registration Statement and the Prospectus and
take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraphs (6) and
(7) above. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
have had discussions with certain officers and representatives of
the Company and the Trust, with other counsel for the Company and
the Trust, and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and the
Prospectus and such discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, as of its date and at the date hereof, contained or
contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial data
included or incorporated by reference in the Registration
Statement or the Prospectus or as to the Form T-1s.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Texas and Louisiana law, we have, with your
consent, relied upon the opinion of even date herewith of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Attorney - Corporate and
Securities of Entergy Services, Inc., and, as to all matters of
Delaware law, we have, with your consent, relied upon the opinion
of even date herewith of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel for the Offerors.
We have not examined into and are not passing upon matters
relating to the incorporation of the Company.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and it may not be relied upon in any manner by any
other person or for any other purpose, without our prior written
consent, except that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Attorney -
Corporate and Securities of Entergy Services, Inc., may rely on
this opinion as to all matters of New York law in rendering their
opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
▇▇▇▇ & PRIEST LLP
EXHIBIT C
[Letterhead of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.]
________ __, 1997
▇▇▇▇▇▇▇, Sachs & Co.
[Other Managers]
As representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special Delaware counsel for Entergy
Gulf States Inc., a Texas corporation (the "Company"), and
Entergy Gulf States Capital I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(b) The Certificate of Trust of the Trust, dated as of
December __, 1996 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on December __, 1996;
(c)
(c) The Trust Agreement of the Trust, dated as of December
__, 1996 among the Company, as depositor, and the trustees of the
Trust named therein;
(d) The Amended and Restated Trust Agreement of the Trust,
dated as of _______ __, 1997 (including Exhibits A, B and D
thereto) (the "Trust Agreement"), among the Company, as
depositor, The Bank of New York, as property trustee, The Bank of
New York (Delaware), as Delaware trustee, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ (each, an "Administrative
Trustee" and collectively, the "Administrative Trustees") and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust;
(e) The Underwriting Agreement, dated ______ __, 1997 (the
"Underwriting Agreement"), among the Trust, the Company and you,
as Representatives of the several underwriters named in Schedule
I to the Underwriting Agreement;
(f) The Prospectus, dated _______ __, 1997 (the
"Prospectus"), relating to ___________ __% Cumulative Quarterly
Income Preferred Securities, Series A, of the Trust representing
preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"); and
(g) A Certificate of Good Standing for the Trust, dated
_______ __, 1997, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents,
the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph (1) below, the due
creation, due organization or due formation, as the case may be,
and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of each natural person who is a party to the
documents examined by us, (iv) except to the extent provided in
paragraph (2) below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent provided in paragraph (9) below, that
each of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Security is to be
issued by the Trust (the "Preferred Security Holders") of a
Preferred Securities Certificate for the Preferred Security and
the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement, and as described in the
Prospectus and the Prospectus Supplement, (vii) that the
Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement, and as
described in the Prospectus, (viii) the receipt by the Person
(the "Common Security Holder") to whom a __% Common Security of
the Trust representing common undivided beneficial interests in
the assets of the Trust (each, a "Common Security" and
collectively, the "Common Securities") (the Preferred Securities
and the Common Securities being hereinafter collectively referred
to as the "Trust Securities") is to be issued by the Trust of a
Common Securities Certificate for the Common Security and the
payment for the Common Security acquired by it, in accordance
with the Trust Agreement, and as described in the Prospectus, and
(ix) that the Common Securities are issued and sold to the Common
Security Holder in accordance with the Trust Agreement, and as
described in the Prospectus. We have not participated in the
preparation of the Prospectus and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
(1) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act, and all filings required under the Delaware Business
Trust Act with respect to the creation and valid existence of the
Trust as a business trust have been made.
(2) Under the Trust Agreement and the Delaware Business
Trust Act, the Trust has the trust power and authority (i) to own
property and conduct its business, all as described in the
Prospectus, (ii) to issue and sell the Trust Securities in
accordance with the Trust Agreement, and as described in the
Prospectus, and to perform its other obligations under the Trust
Agreement, the Underwriting Agreement and the Trust Securities,
(iii) to execute and deliver the Underwriting Agreement, and (iv)
to consummate the transactions contemplated by the Underwriting
Agreement.
(3) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Administrative Trustees, and is
enforceable against the Company and the Administrative Trustees,
in accordance with its terms.
(4) The Common Securities have been duly authorized by the
Trust Agreement and are duly and validly issued undivided
beneficial interests in the assets of the Trust.
(5) The Preferred Securities have been duly authorized by
the Trust Agreement and are duly and validly issued and, subject
to the qualifications set forth in paragraph (6) below, fully
paid and nonassessable undivided beneficial interests in the
assets of the Trust.
(6) The Preferred Security Holders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State
of Delaware. We note that the Preferred Security Holders may be
obligated, pursuant to the Trust Agreement, (i) to provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Preferred Securities Certificates and the issuance of replacement
Preferred Securities Certificates, and (ii) to provide security
or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the
Trust Agreement.
(7) Under the Trust Agreement and the Delaware Business
Trust Act, the issuance of the Trust Securities is not subject to
preemptive rights.
(8) The issuance and sale by the Trust of the Trust
Securities and the execution, delivery and performance by the
Trust of the Underwriting Agreement and the consummation of the
transactions contemplated by the Underwriting Agreement do not
violate (a) the Certificate or the Trust Agreement or (b) any
applicable Delaware law, rule or regulation.
(9) Under the Trust Agreement and the Delaware Business
Trust Act, (i) the issuance and sale by the Trust of the Trust
Securities and the execution and delivery by the Trust of the
Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust and (ii) assuming
the due authorization, execution and delivery of the Underwriting
Agreement by the Company as depositor under the Trust Agreement
on behalf of the Trust and of the Preferred Securities
Certificates for the Preferred Securities by an Administrative
Trustee on behalf of the Trust, the Underwriting Agreement and
the Preferred Securities Certificates have been duly executed and
delivered by the Trust.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent transfer
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at
law) and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to the reliance upon this opinion as
to matters of Delaware law by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General
Attorney - Corporate and Securities of Entergy Services, Inc.,
▇▇▇▇ & Priest LLP, and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, as if
it were addressed to each of them, in rendering their opinions to
you of even date herewith. Except as stated above, without our
prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.
EXHIBIT D
[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
__________ __, 1997
▇▇▇▇▇▇▇, Sachs & Co.
[Other Managers]
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of ___________ __% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities"), issued by Entergy Gulf
States Capital I, a statutory business trust organized under the
laws of the State of Delaware (the "Trust"), pursuant to the
agreement among you, as the representatives of the several
Underwriters, Entergy Gulf States, Inc., a Texas corporation (the
"Company"), and the Trust effective ______ __, 1997 (the
"Underwriting Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon (i)
an opinion of even date herewith addressed to you of ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq., General Attorney - Corporate and Securities of
Entergy Services, Inc., and the Trust, as to the matters covered
in such opinion relating to Texas and Louisiana law and (ii) an
opinion of even date herewith addressed to you of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Company
and the Trust, as to the matters covered in such opinion relating
to Delaware law. We have reviewed said opinions and believe that
they are satisfactory. We have also reviewed the opinion of ▇▇▇▇
& Priest LLP required by Section 7(d) of the Underwriting
Agreement, and we believe said opinion to be satisfactory.
We have also reviewed such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and the Trust and statements in
the Registration Statement. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, and the correctness of all statements of fact
contained in all such original or copied documents. We have not
examined the certificates representing the Preferred Securities
or the Debentures except in each case for specimens thereof, and
we have relied upon a certificate of an Administrative Trustee as
to the execution and delivery of the Preferred Securities and a
certificate of the Debenture Trustee as to the authentication and
delivery of the Debentures. Capitalized terms used herein and
not otherwise defined have the meanings ascribed to such terms in
the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(10) The Preferred Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and fully paid
and nonassessable undivided beneficial interests in the assets of
the Trust. The holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
holders of the Preferred Securities may be obligated, pursuant to
the Trust Agreement, (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities
certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
(11)
(11) The Indenture has been duly and validly authorized by all
necessary corporate action on the part of the Company, has been
duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at
law), and, to the best of our knowledge, the Indenture is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or threatened by
the Commission.
(12) The statements made in the Prospectus under the captions
"Description of Preferred Securities", "Description of
Guarantee", "Description of the Junior Subordinated Debentures",
"Relationship Among the Preferred Securities, the Junior
Subordinated Debentures and the Guarantee" and "Underwriting",
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(13) The Debentures have been duly and validly authorized by
all necessary corporate action on the part of the Company, and
are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting creditors' rights and general
equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law), and are entitled
to the benefits provided by the Indenture.
(14) The Guarantee Agreement has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or
at law), and, to the best of our knowledge, the Guarantee
Agreement is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted or
threatened by the Commission.
(15) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(16) An appropriate order has been issued by the Commission
under the 1935 Act authorizing the issuance and sale of the
Securities, and to the best of our knowledge, such order is in
full force and effect; and no further approval, authorization,
consent or other order of any governmental body (other than
orders of the Commission under the Securities Act, the Exchange
Act and the Trust Indenture Act, which have been duly obtained,
or in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Securities.
(17) Except in each case as to the financial statements and
other financial data included or incorporated by reference
therein, upon which we do not pass, the Registration Statement,
at the time it became effective, and the Prospectus, as of its
date, complied as to form in all material respects with the
applicable requirements of the Securities Act and (except with
respect to the Form T-1s, upon which we do not pass) the Trust
Indenture Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; with respect to the documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-2, such documents or portions thereof, on the date they
were filed with the Commission, complied as to form in all
material respects with the applicable provisions of the Exchange
Act and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, to the best of
our knowledge, the Registration Statement has become, and on the
date hereof is, effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the Trust and the information included or
incorporated by reference in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
hereof. In connection with the preparation by the Company and
the Trust of the Registration Statement and the Prospectus, we
had discussions with certain officers, employees and
representatives of the Company, the Trust and Entergy Services,
Inc., with counsel for the Company and the Trust, and with your
representatives. Our review of the Registration Statement and
the Prospectus, and such discussions, did not disclose to us any
information that gives us reason to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date and
at the date hereof, contained or contains any untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial data included or incorporated by
reference in the Registration Statement or Prospectus, as to the
Form T-1s or as to the information contained in the Prospectus
under the caption "Certain United States Federal Income Tax
Considerations."
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
