Exhibit B-2(d)
Entergy Mississippi, Inc.
$120,000,000
First Mortgage Bonds,
7 3/4% Series due February 15, 2003
UNDERWRITING AGREEMENT
February 9, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
BNY Capital Markets, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The undersigned, Entergy Mississippi, Inc., a Mississippi
corporation (the "Company"), proposes to issue, and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits, shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $120,000,000 principal amount of the Company's
First Mortgage Bonds, 7 3/4% Series due February 15, 2003 (the
"Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the Bonds at 99.395% of
the principal amount thereof, in the principal amount set forth
opposite the name of such Underwriter in Schedule I attached
hereto.
SECTION 2. Description of Bonds. The Bonds shall be issued
under and pursuant to the Company's Mortgage and Deed of Trust,
dated as of February 1, 1988, with ▇▇▇▇▇▇ Trust Company of New
York, formerly Bank of Montreal Trust Company (successor to The
Chase Manhattan Bank (National Association)), as Corporate
Trustee, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (successor to Z. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇), as Co-Trustee (the "Co-Trustee" and, together with
the Corporate Trustee, the "Trustees"), as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Fifteenth Supplemental Indenture, dated as of
February 1, 2000 (the "Supplemental Indenture"). Said Mortgage
and Deed of Trust as so amended and supplemented is hereinafter
referred to as the "Mortgage." The Bonds and the Supplemental
Indenture shall have the terms and provisions described in the
Prospectus (as defined herein), provided that subsequent to the
date hereof and prior to the Closing Date (as defined herein) the
form of the Supplemental Indenture may be amended by mutual
agreement between the Company and the Underwriters.
SECTION 3. Representations and Warranties of the Company.
The Company represents and warrants to the several Underwriters,
and covenants and agrees with the several Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Mississippi and has the necessary corporate power
and authority to conduct the business that it is described
in the Prospectus as conducting and to own and operate the
properties owned and operated by it in such business and is
in good standing and duly qualified to conduct such business
as a foreign corporation in the State of Arkansas.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 333-64023) for the
registration of $265,000,000 aggregate principal amount of
the Company's General and Refunding Mortgage Bonds (the
"Mortgage Bonds," of which the Bonds constitute one series)
under the Securities Act of 1933 (the "Securities Act") and
such registration statement has become effective. The
Company qualifies for use of Form S-3 for the registration
of the Bonds and the Bonds are registered under the
Securities Act. The combined prospectus forming a part of
such registration statement and relating, pursuant to Rule
429 under the Securities Act, to $300,000,000 aggregate
principal amount of Mortgage Bonds ($175,000,000 of which
remain unissued and unsold before giving effect to the
issuance and sale of the Bonds), including the Bonds, at the
time such registration statement (or the most recent
amendment thereto filed prior to the time of effectiveness
of this Underwriting Agreement) became effective, including
all documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus." In the event that (i) the Basic
Prospectus shall have been amended, revised or supplemented
(but excluding any amendments, revisions or supplements to
the Basic Prospectus relating solely to Mortgage Bonds other
than the Bonds) prior to the time of effectiveness of this
Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the Bonds, or
(ii) the Company shall have filed documents pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") after the time such registration
statement (or the most recent amendment thereto filed prior
to the time of effectiveness of this Underwriting Agreement)
became effective and prior to the time of effectiveness of
this Underwriting Agreement (but excluding documents
incorporated therein by reference relating solely to
Mortgage Bonds other than the Bonds), which are incorporated
or deemed to be incorporated by reference in the Basic
Prospectus pursuant to Item 12 of Form S-3, the term "Basic
Prospectus" as used herein shall also mean such prospectus
as so amended, revised or supplemented and reflecting such
incorporation by reference. Such registration statement in
the form in which it became effective and as it may have
been amended by all amendments thereto as of the time of
effectiveness of this Underwriting Agreement (including, for
these purposes, as an amendment any document incorporated or
deemed to be incorporated by reference in the Basic
Prospectus), and the Basic Prospectus as it shall be
supplemented to reflect the terms of the offering and sale
of the Bonds by a prospectus supplement (a "Prospectus
Supplement") to be filed with the Commission pursuant to
Rule 424(b) under the Securities Act ("Rule 424(b)"), are
hereinafter referred to as the "Registration Statement" and
the "Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file any amendment to the
Registration Statement or any supplement to the Prospectus
(except any amendment or supplement relating solely to
Mortgage Bonds other than the Bonds), and (ii) between the
time of effectiveness of this Underwriting Agreement and the
Closing Date, the Company will not file any document that is
to be incorporated by reference in, or any supplement to,
the Basic Prospectus, in either case, without prior notice
to the Underwriters and to Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ ("Counsel for the Underwriters"), or any such
amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes
of this Underwriting Agreement, any document that is filed
with the Commission after the time of effectiveness of this
Underwriting Agreement and incorporated or deemed to be
incorporated by reference in the Prospectus (except
documents incorporated by reference relating solely to
Mortgage Bonds other than the Bonds) pursuant to Item 12 of
Form S-3 shall be deemed a supplement to the Prospectus.
(d) The Registration Statement, at the Effective Date
(as defined below) and the Mortgage, at such time, fully
complied, and the Prospectus, when delivered to the
Underwriters for their use in making confirmations of sales
of the Bonds and at the Closing Date, as it may then be
amended or supplemented, will fully comply, in all material
respects with the applicable provisions of the Securities
Act, the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations did or
will be deemed to comply therewith. The documents
incorporated or deemed to be incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, on the date
filed with the Commission pursuant to the Exchange Act,
fully complied or will fully comply in all material respects
with the applicable provisions of the Exchange Act and the
rules and regulations of the Commission thereunder or
pursuant to said rules and regulations did or will be deemed
to comply therewith. On the later of (i) the date the
Registration Statement (or the most recent post-effective
amendment thereto, but excluding any post-effective
amendment relating solely to Mortgage Bonds other than the
Bonds) was declared effective by the Commission under the
Securities Act and (ii) the date that the Company's most
recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act (such date is hereinafter
referred to as the "Effective Date"), the Registration
Statement did not or will not, as the case may be, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading. At the time the
Prospectus is delivered to the Underwriters for their use in
making confirmations of sales of the Bonds and at the
Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading
and, on said dates and at such times, the documents then
incorporated or deemed to be incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, when read
together with the Prospectus, or the Prospectus, as it may
then be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading. The foregoing representations and
warranties in this paragraph (d) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by the Underwriters or on behalf of any Underwriter
specifically for use in connection with the preparation of
the Registration Statement or the Prospectus, as they may be
then amended or supplemented, or to any statements in or
omissions from the statements of eligibility of the Trustees
on Form T-1 and Form T-2, as they may then be amended, under
the Trust Indenture Act filed as exhibits to the
Registration Statement (the "Statements of Eligibility").
(e) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Mortgage or any indenture
or other agreement or instrument to which the Company is now
a party.
(f) Except as set forth or contemplated in the
Prospectus, as it may be then amended or supplemented, the
Company possesses adequate franchises, licenses, permits,
and other rights to conduct its business and operations as
now conducted, without any known conflicts with the rights
of others which could have a material adverse effect on the
Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the effectiveness
of this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the Bonds
will be offered to the public at the initial public offering
price specified in the Prospectus Supplement plus accrued
interest thereon, if any, from the Closing Date.
SECTION 5. Time and Place of Closing; Delivery of the
Bonds. Delivery of the Bonds and payment of the purchase price
therefor by wire transfer of immediately available funds shall be
made at the offices of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York time, on
February 15, 2000, or at such other time on the same or such
other day as shall be agreed upon by the Company and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, or as may be established in
accordance with Section 11 hereof. The hour and date of such
delivery and payment are herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in book-
entry only form through the facilities of The Depository Trust
Company in New York, New York. The certificate for the Bonds
shall be in the form of one typewritten global bond in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon between the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a conformed copy of the
Registration Statement in the form that it or the most
recent post-effective amendment thereto became effective,
certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriters may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with the Commission pursuant to and in compliance with Rule
424(b) and will advise ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are
required by law to deliver a prospectus after this
Underwriting Agreement has become effective, if any event
relating to or affecting the Company, or of which the
Company shall be advised by the Underwriters in writing,
shall occur which in the Company's opinion should be set
forth in a supplement or amendment to the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser of the
Bonds, the Company will amend or supplement the Prospectus
by either (i) preparing and filing with the Commission and
furnishing to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments
to the Prospectus, or (ii) making an appropriate filing
pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in
which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 6(d) shall be borne by the
Company until the expiration of nine months from the time of
effectiveness of this Underwriting Agreement, and such
expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, as to meet the requirements of the
last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required by, and will otherwise cooperate in
qualifying the Bonds for offer and sale under, the blue sky
laws of such jurisdictions as the Underwriters may
reasonably designate, provided that the Company shall not be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under
the laws of any jurisdiction, or to meet any other
requirements deemed by the Company to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes (except transfer taxes) in
connection with (i) the preparation and filing of the
Registration Statement and any post-effective amendments
thereto, (ii) the printing, issuance and delivery of the
Bonds and the preparation, execution, printing and
recordation of the Supplemental Indenture, (iii) legal
counsel relating to the qualification of the Bonds under the
blue sky laws of various jurisdictions in an amount not to
exceed $3,500, (iv) the printing and delivery to the
Underwriters of reasonable quantities of copies of the
Registration Statement, the preliminary (and any
supplemental) blue sky survey, any preliminary prospectus
supplement relating to the Bonds and the Prospectus and any
amendment or supplement thereto, except as otherwise
provided in paragraph (d) of this Section 6, (v) the rating
of the Bonds by one or more nationally recognized
statistical rating agencies and (vi) filings or other
notices (if any) with or to, as the case may be, the
National Association of Securities Dealers, Inc. (the
"NASD") in connection with its review of the terms of the
offering. Except as provided above, the Company shall not
be required to pay any expenses of the Underwriters, except
that, if this Underwriting Agreement shall be terminated in
accordance with the provisions of Section 7, 8 or 12 hereof,
the Company will reimburse the Underwriters for (A) the
reasonable fees and expenses of Counsel for the
Underwriters, whose fees and expenses the Underwriters agree
to pay in any other event, and (B) reasonable out-of-pocket
expenses in an aggregate amount not exceeding $15,000,
incurred in contemplation of the performance of this
Underwriting Agreement. The Company shall not in any event
be liable to the Underwriters for damages on account of loss
of anticipated profits.
(h) The Company will not sell any additional Mortgage
Bonds without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date and (ii) the date
of the termination of the fixed price offering restrictions
applicable to the Underwriters. The Underwriters agree to
notify the Company of such termination if it occurs prior to
the Closing Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Mortgage
and the rights under the Supplemental Indenture, and the
Company will use its best efforts to cause to be furnished
to the Underwriters a supplemental opinion of counsel for
the Company, addressed to the Underwriters, stating that all
such recordings, registrations and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Bonds
shall be subject to the accuracy on the date hereof and on the
Closing Date of the representations and warranties made herein on
the part of the Company and of any certificates furnished by the
Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) prior to 5:30 P.M., New
York time, on the second business day following the date of
this Underwriting Agreement, or such other time and date as
may be agreed upon by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Company or the
Underwriters, threatened by, the Commission on the Closing
Date; and the Underwriters shall have received a
certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that no such stop
order has been or is in effect and that no proceedings for
such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order of the Commission under the Public Utility Holding
Company Act of 1935 (the "Holding Company Act") authorizing
the issuance and sale of the Bonds on the terms set forth
in, or contemplated by, this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from ▇▇▇ ▇. ▇▇▇, Senior Counsel-Corporate and
Securities of Entergy Services, Inc., Friday, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP opinions, dated the
Closing Date, substantially in the forms set forth in
Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and the
Underwriters with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for
use in offering the Bonds, with changes therein to reflect
such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters an opinion, dated
the Closing Date, substantially in the form set forth in
Exhibit D hereto, with such changes therein as may be
necessary to reflect any supplementation of the Prospectus
prior to the Closing Date.
(f) On or prior to the date this Underwriting
Agreement became effective, the Underwriters shall have
received from PricewaterhouseCoopers LLP, the Company's
independent certified public accountants (the
"Accountants"), a letter dated the date hereof and addressed
to the Underwriters to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii)
in their opinion, the financial statements and financial
statement schedules audited by them and included or
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the applicable published rules and regulations thereunder;
(iii) on the basis of performing the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the latest
unaudited financial statements, if any, included or
incorporated by reference in the Prospectus, a reading of
the latest available interim unaudited financial statements
of the Company, the minutes of the meetings of the Board of
Directors of the Company, the Executive Committee thereof,
if any, and the stockholder of the Company, since December
31, 1998 to a specified date not more than five days prior
to the date of such letter, and inquiries of officers of the
Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures
do not constitute an audit made in accordance with generally
accepted auditing standards and they would not necessarily
reveal matters of significance with respect to the comments
made in such letter and, accordingly, that the Accountants
make no representations as to the sufficiency of such
procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe
that, to the extent applicable, (A) the unaudited financial
statements of the Company (if any) included or incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder; (B)
any material modifications should be made to said unaudited
financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a
specified date not more than five days prior to the date of
the letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for any increases in
long-term debt in respect of previously issued pollution
control, solid waste disposal or industrial development
revenue bonds, or for changes or decreases as set forth in
such letter, identifying the same and specifying the amount
thereof; and (iv) stating that they have compared specific
dollar amounts, percentages of revenues and earnings and
other financial information pertaining to the Company (x)
set forth in the Prospectus, and (y) set forth in documents
filed by the Company pursuant to Section 13, 14 or 15(d) of
the Exchange Act as specified in Exhibit E hereto, in each
case, to the extent that such amounts, numbers, percentages
and information may be derived from the general accounting
records of the Company, and excluding any questions
requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings,
inquiries and other appropriate procedures (which procedures
do not constitute an examination in accordance with
generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by
the President, a Vice President, the Treasurer or an
Assistant Treasurer of the Company, to the effect that (i)
the representations and warranties of the Company contained
herein are true and correct, (ii) the Company has performed
and complied with all agreements and conditions in this
Underwriting Agreement to be performed or complied with by
the Company at or prior to the Closing Date and (iii) since
the most recent date as of which information is given in the
Prospectus, as it may then be amended or supplemented, there
has not been any material adverse change in the business,
property or financial condition of the Company and there has
not been any material transaction entered into by the
Company, other than transactions in the ordinary course of
business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended
or supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Supplemental
Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date, the statements contained in the letter
delivered pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
default (or an event which, with the giving of notice or the
passage of time or both, would constitute a default) under
the Mortgage shall have occurred.
(k) Prior to the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated shall have received from the Company evidence
reasonably satisfactory to it that the Bonds have received
ratings of Baa2 from ▇▇▇▇▇'▇ Investors Service, Inc. and
BBB+ from Standard & Poor's Ratings Services.
(l) Between the date hereof and the Closing Date,
neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard &
Poor's Ratings Services shall have lowered its rating of any
of the Company's outstanding Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(n) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(o) The Company shall furnish the Underwriters with
additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section 7 shall
not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the
Closing Date.
(b) At the Closing Date, there shall have been issued
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds an
order of the Commission under the Holding Company Act
authorizing the issuance and sale of the Bonds on the terms
set forth in, or contemplated by, this Underwriting
Agreement.
In case any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated. Any such termination shall be without
liability of any party to any other party, except as otherwise
provided in paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages or liabilities,
joint or several, to which each Underwriter or any or all of
them may become subject under the Securities Act or any
other statute or common law and shall reimburse each
Underwriter and any such controlling person for any legal or
other expenses (including to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as
amended or supplemented, or the omission or alleged omission
to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or upon any untrue statement or alleged untrue
statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is
filed with the Commission pursuant to Rule 424(b)), or in
the Prospectus, as each may be amended or supplemented, or
the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any
such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made
in reliance upon and in conformity with information
furnished herein or in writing to the Company by such
Underwriter specifically for use in connection with the
preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is
filed with the Commission pursuant to Rule 424(b)) or the
Prospectus or any amendment or supplement to any thereof or
arising out of, or based upon, statements in or omissions
from the Statements of Eligibility; and provided further,
that the indemnity agreement contained in this subsection
shall not inure to the benefit of any Underwriter or to the
benefit of any person controlling such Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Bonds to
any person in respect of the Basic Prospectus or the
Prospectus as supplemented or amended, furnished by such
Underwriter to a person to whom any of the Bonds were sold
(excluding in both cases, however, any document then
incorporated or deemed to be incorporated by reference
therein), insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied
prior to the consummation of such sale in the Prospectus, or
any amendment or supplement thereto, furnished on a timely
basis by the Company to the Underwriters pursuant to Section
6(d) hereof, respectively, unless a copy of the Prospectus
(in the case of such a statement or omission made in the
Basic Prospectus) or such amendment or supplement (in the
case of such a statement or omission made in the Prospectus)
(excluding, however, any amendment or supplement to the
Basic Prospectus relating to any Mortgage Bonds other than
the Bonds and any document then incorporated or deemed to be
incorporated by reference in the Prospectus or such
amendment or supplement) is furnished by such Underwriter to
such person (i) with or prior to the written confirmation of
the sale involved or (ii) as soon as available after such
written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each
person who controls the foregoing within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each of
them for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or
are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or upon any untrue statement or
alleged untrue statement of a material fact contained in the
Basic Prospectus (if used prior to the date the Prospectus
is filed with the Commission pursuant to Rule 424(b)), or in
the Prospectus, as amended or supplemented, or the omission
or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, in each case, if, but only if, such statement or
omission was made in reliance upon and in conformity with
information furnished herein or in writing to the Company by
such Underwriter specifically for use in connection with the
preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is
filed with the Commission pursuant to Rule 424(b)) or the
Prospectus, or any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto),
against any party in respect of which indemnity may be
sought pursuant to any of the preceding paragraphs, such
party (hereinafter called the indemnified party) shall
promptly notify the party or parties against whom indemnity
shall be sought hereunder (hereinafter called the
indemnifying party) in writing, and the indemnifying party
shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction
with any other indemnifying party) the defense thereof,
including the employment of counsel reasonably satisfactory
to the indemnified party and the payment of all fees and
expenses. If the indemnifying party shall elect not to
assume the defense of any such action, the indemnifying
party shall reimburse the indemnified party for the
reasonable fees and expenses of any counsel retained by such
indemnified party. Such indemnified party shall have the
right to employ separate counsel in any such action in which
the defense has been assumed by the indemnifying party and
participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has
been specifically authorized by the indemnifying party or
(ii) the named parties to any such action (including any
impleaded parties) include each of such indemnified party
and the indemnifying party and such indemnified party shall
have been advised by such counsel that a conflict of
interest between the indemnifying party and such indemnified
party may arise and for this reason it is not desirable for
the same counsel to represent both the indemnifying party
and the indemnified party (it being understood, however,
that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local
counsel retained by such indemnified party in its reasonable
judgment)). The indemnified party shall be reimbursed for
all such fees and expenses as they are incurred. The
indemnifying party shall not be liable for any settlement of
any such action effected without its consent, but if any
such action is settled with the consent of the indemnifying
party or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify
and hold harmless the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of
any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been
a party and indemnity has or could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such action, suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable
to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Bonds
or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions
which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total
proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to
the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus.
The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and
such parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by
any other method of allocation which does not take account
of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable
to an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Bonds underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and
not joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If any Underwriter
shall fail or refuse (otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder) to purchase and pay
for the principal amount of Bonds that it has agreed to purchase
and pay for hereunder, and the aggregate principal amount of
Bonds that such defaulting Underwriter agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Bonds, the other Underwriters shall be
obligated to purchase the Bonds that such defaulting Underwriter
agreed but failed or refused to purchase; provided that in no
event shall the principal amount of Bonds that such Underwriter
has agreed to purchase pursuant to Schedule I hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth
of such principal amount of Bonds without written consent of such
Underwriter. If such Underwriter shall fail or refuse to
purchase Bonds and the aggregate principal amount of Bonds with
respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Bonds, the Company shall
have the right (a) to require the non-defaulting Underwriters to
purchase and pay for the respective principal amount of Bonds
that they had severally agreed to purchase hereunder, and, in
addition, the principal amount of Bonds that the defaulting
Underwriter shall have so failed to purchase up to a principal
amount thereof equal to one-ninth of the respective principal
amount of Bonds that such non-defaulting Underwriters have
otherwise agreed to purchase hereunder, and/or (b) to procure one
or more other members of the NASD (or, if not members of the
NASD, who are foreign banks, dealers or institutions not
registered under the Exchange Act and who agree in making sales
to comply with the NASD's Rules of Fair Practice), to purchase,
upon the terms herein set forth, the principal amount of Bonds
that such defaulting Underwriter had agreed to purchase, or that
portion thereof that the remaining Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a). In
the event the Company shall exercise its rights under clause (a)
and/or (b) above, the Company shall give written notice thereof
to the Underwriters within 24 hours (excluding any Saturday,
Sunday, or legal holiday) of the time when the Company learns of
the failure or refusal of any Underwriter to purchase and pay for
its respective principal amount of Bonds, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriters, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement shall
be subject to termination by written notice from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended on the New
York Stock Exchange by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the New York Stock Exchange by The New York Stock Exchange,
Inc., the Commission or other governmental authority, (iii) a
general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the judgment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, impracticable to
market the Bonds. This Underwriting Agreement shall also be
subject to termination, upon notice by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated as provided above, if, in the judgment of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, the subject matter of any amendment
or supplement (prepared by the Company) to the Prospectus (except
for information relating solely to the manner of public offering
of the Bonds or to the activity of the Underwriters or to the
terms of any series of Mortgage Bonds other than the Bonds) filed
or issued after the effectiveness of this Underwriting Agreement
by the Company shall have materially impaired the marketability
of the Bonds. Any termination hereof, pursuant to this Section
12, shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10.
SECTION 13. Miscellaneous. THE RIGHTS AND DUTIES OF THE
PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. This Underwriting Agreement shall
become effective when a fully executed copy thereof is delivered
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated by the Company. This
Underwriting Agreement may be executed in any number of separate
counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which, taken
together, shall constitute but one and the same agreement. This
Underwriting Agreement shall inure to the benefit of each of the
Company, the Underwriters and, with respect to the provisions of
Section 9, each director, officer and other persons referred to
in Section 9, and their respective successors. Should any part
of this Underwriting Agreement for any reason be declared
invalid, such declaration shall not affect the validity of any
remaining portion, which remaining portion shall remain in full
force and effect as if this Underwriting Agreement had been
executed with the invalid portion thereof eliminated. Nothing
herein is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of any provision in this
Underwriting Agreement. The term "successor" as used in this
Underwriting Agreement shall not include any purchaser, as such
purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated at the address set
forth at the beginning of this Underwriting Agreement to the
attention of ▇▇▇▇▇ ▇▇▇▇▇▇ or, if to the Company, 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.
Very truly yours,
Entergy Mississippi, Inc.
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
.
Accepted as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
BNY Capital Markets, Inc.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
Name:
Title:
SCHEDULE I
Entergy Mississippi, Inc.
$120,000,000 First Mortgage Bonds,
7 _% Series due February 15, 2003
Name of Underwriters Principal
Amount of Bonds
Morgan ▇▇▇▇▇▇▇ & Co. Incorporate $ 72,000,000
ABN AMRO Incorporated 24,000,000
BNY Capital Markets, Inc. 24,000,000
TOTAL $120,000,000
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
February 15, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
BNY Capital Markets, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I, together with ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, of New York, New
York, and Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ of Little Rock, Arkansas, have
acted as counsel for Entergy Mississippi, Inc., a Mississippi
corporation (the "Company"), in connection with the issuance and
sale to you, pursuant to the Underwriting Agreement effective
February [ ], 2000 (the "Underwriting Agreement"), between the
Company and you, of $120,000,000 aggregate principal amount of
its First Mortgage Bonds, 7 3/4% Series due February 15, 2003 (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of February 1, 1988, with ▇▇▇▇▇▇ Trust Company of
New York, formerly Bank of Montreal Trust Company (successor to
The Chase Manhattan Bank (National Association)), as Corporate
Trustee (the "Corporate Trustee") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (as
successor to Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) as Co-Trustee, as heretofore
amended and supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Fifteenth Supplemental Indenture, dated as of
February 1, 2000 (the "Supplemental Indenture") (the Mortgage and
Deed of Trust as so amended and supplemented being hereinafter
referred to as the "Mortgage"). This opinion is rendered to you
at the request of the Company. Capitalized terms used herein and
not otherwise defined have the meanings ascribed to such terms in
the Underwriting Agreement.
In my capacity as such counsel, I have either participated
in the preparation of or have examined and am familiar with: (a)
the Company's Restated Articles of Incorporation and By-laws,
each as amended; (b) the Underwriting Agreement; (c) the
Mortgage; (d) the Registration Statement and the Prospectus; (e)
the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and
the execution and delivery by the Company of the Supplemental
Indenture and the Underwriting Agreement; and (f) the proceedings
before and the order entered by the Commission under the Holding
Company Act relating to the issuance and sale of the Bonds by the
Company. 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. I have not examined the Bonds, except specimens
thereof, and I have relied upon a certificate of the Corporate
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, the conformity
with the originals of all documents submitted to me as copies and
the authenticity of the originals of such latter documents. In
making my examination of documents and instruments executed or to
be executed by persons other than the Company, 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 (including but not limited to those
contained in the Underwriting Agreement and the Mortgage and
certificates delivered at the closing of the sale of the Bonds)
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 any of its affiliates that have participated in
the negotiation of the transactions contemplated by the
Underwriting Agreement and the Mortgage, 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.
In rendering the opinion set forth in paragraph (2) below, I
have relied upon reports and/or opinions by counsel who
historically acted on behalf of the Company in real estate
transactions and transactions involving the Mortgage and in whom
I have confidence, title reports prepared in connection with the
procurement of title insurance policies on certain property of
the Company, and information from officers of the Company
responsible for the acquisition of real property and maintenance
of records with respect thereto, which I believe to be
satisfactory in form and scope and which I have no reason to
believe are inaccurate in any material respect. I have not, for
purposes of rendering such opinion, conducted an independent
examination or investigation of official title records (or
abstracts thereof) with respect to property (i) acquired by the
Company prior to the date of the most recent report and/or
opinions of counsel, (ii) as to which title insurance has been
obtained or (iii) the aggregate purchase price of which was not
material.
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 Mississippi, has due corporate power and
authority to conduct the business that it is described as
conducting in the Prospectus and to own and operate the
properties owned and operated by it in such business and is
duly qualified to conduct such business as a foreign
corporation in the State of Arkansas.
(2) The Company has good and sufficient title to
the properties described as owned by it in and as subject to
the lien of the Mortgage (except properties released under
the terms of the Mortgage), subject only to Excepted
Encumbrances (as defined in the Mortgage) and to minor
defects and encumbrances customarily found in properties of
like size and character that do not materially impair the
use of such properties by the Company. All permanent
physical properties and franchises (other than those
expressly excepted in the Mortgage) acquired by the Company
after the date of the Supplemental Indenture will, upon such
acquisition, become subject to the lien of the Mortgage,
subject, however, to such Excepted Encumbrances and to
liens, if any, existing or placed thereon at the time of the
acquisition thereof by the Company and except as may be
limited by bankruptcy law.
(3) The Mortgage constitutes a valid, direct and
first mortgage lien on all of the Mortgaged and Pledged
Property (as defined in the Mortgage), subject only to minor
defects of the character aforesaid and Excepted
Encumbrances. The description of the Mortgaged and Pledged
Property set forth in the Mortgage is adequate to constitute
the Mortgage as a lien on the Mortgaged and Pledged
Property. The filing for recording of the Mortgage in the
offices of the Chancery Clerks of each County in Mississippi
in which the Company holds real property, and the recording
of the Mortgage in the office of the Circuit Clerk of
Independence County, Arkansas, which filings or recordings
will be duly effected, and the filing of Uniform Commercial
Code financing statements covering the personal property and
fixtures described in the Mortgage as subject to the lien
thereof in the offices of the Secretary of State of the
State of Mississippi, the Secretary of State of the State of
Arkansas, and the Secretary of State of the State of
Wyoming, which filings will be duly effected, are the only
recordings, filings, rerecordings and refilings required by
law in order to protect and maintain the lien of the
Mortgage on any of the property described therein and
subject thereto.
(4) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of
the Company, has been duly and validly executed and
delivered by the Company, is a legal, valid and binding
instrument of the Company enforceable against the Company in
accordance with its terms, except (i) as may be limited by
the laws of the States of Mississippi, Arkansas and Wyoming,
where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for
therein, which laws do not, in my opinion, make inadequate
remedies necessary for the realization of the benefits of
such security, and (ii) as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and by general
equitable principles (whether considered in a proceeding in
equity or at law) and is qualified under the Trust Indenture
Act, and no proceedings to suspend such qualification have
been instituted or, to my knowledge, threatened by the
Commission.
(5) The Bonds have been duly and validly
authorized by all necessary corporate action on the part of
the Company and are legal, valid and binding obligations of
the Company enforceable against the Company in accordance
with their terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and by general
equitable principles (whether considered in a proceeding in
equity or at law) and are entitled to the benefit of the
security afforded by the Mortgage.
(6) The statements made in the Prospectus under
the captions "Description of the New Bonds," insofar as they
purport to constitute summaries of the documents referred to
therein, or of the benefits purported to be afforded by such
documents (including, without limitation, the lien of the
Mortgage), constitute accurate summaries of the terms of
such documents and of such benefits in all material
respects.
(7) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(8) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which I do not pass, the
Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Statements of
Eligibility upon which I do not pass) the Trust Indenture
Act, and the applicable instructions, rules and regulations
of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Exchange
Act, and incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date filed with
the Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
Registration Statement has become, and on the date hereof
is, effective under the Securities Act; and, to the best of
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.
(9) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the
issuance and sale of the Bonds by the Company; 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 under the Securities Act
or the Trust Indenture Act, which have been duly obtained,
or in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement; and no
further approval, authorization, consent or other order of
any governmental body is legally required to permit the
performance by the Company of its obligations with respect
to the Bonds or under the Mortgage and the Underwriting
Agreement.
(10) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Mortgage (a)
will not violate any provision of the Company's Restated
Articles of Incorporation or By-laws, each as amended, (b)
will not violate any provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
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).
In connection with the preparation by the Company of the
Registration Statement and the Prospectus, I have had discussions
with certain of the officers, employees, and representatives of
the Company and Entergy Services, Inc., with other counsel for
the Company, and with the independent certified public
accountants of the Company who audited certain of the financial
statements included or incorporated by reference in the
Registration Statement. My examination of the Registration
Statement and the Prospectus and the above-mentioned discussions
did not disclose to me any information which gives me reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time it was filed with the Commission pursuant
to Rule 424(b) and at the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. I do not express any opinion or belief as
to (i) the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus, (ii) the Statements of Eligibility
or (iii) the information contained in the Prospectus under the
caption "Description of the New Bonds-Book-Entry System G&R
Bonds."
I have examined the portions of the information contained in
the Registration Statement that are stated therein to have been
made on my authority, and I believe such information to be
correct. 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 Mississippi and
Wyoming law.
I am a member of the Mississippi and Louisiana Bars and, for
purposes of this opinion, do not hold myself out as an expert on
the laws of any jurisdiction other than the State of Mississippi
and the United States of America. As to all matters of Arkansas,
Wyoming and New York law, I have relied, with your approval, in
the case of Arkansas law, upon the opinion of even date herewith
addressed to me and to you of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, in the
case of Wyoming law, upon the opinion of even date herewith
addressed to me and to the Company of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, of
Cheyenne, Wyoming (a copy of which has been furnished to you),
and, in the case of New York law, upon the opinion of even date
herewith addressed to you of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP.
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 Mississippi and
Wyoming law in rendering their opinions required to be delivered
under the Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇]
February 15, 2000
▇▇▇ ▇. ▇▇▇
Senior Counsel-Corporate and Securities
Entergy Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
BNY Capital Markets, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We, together with ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, of New York, New
York, and ▇▇▇ ▇. ▇▇▇, Senior Counsel-Corporate and Securities of
Entergy Services, Inc., have acted as counsel for Entergy
Mississippi, Inc., a Mississippi corporation (the "Company"), in
connection with the issuance and sale, pursuant to the
Underwriting Agreement effective February [ ], 2000 (the
"Underwriting Agreement"), by the Company, of $120,000,000
aggregate principal amount of its First Mortgage Bonds, 7 3/4%
Series due February 15, 2003 (the "Bonds"), issued pursuant to
the Company's Mortgage and Deed of Trust, dated as of February 1,
1988, with ▇▇▇▇▇▇ Trust Company of New York, formerly Bank of
Montreal Trust Company (successor to The Chase Manhattan Bank
(National Association)), as Corporate Trustee, and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ (as successor to Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), as Co-Trustee,
as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto, and as it will be
further amended and supplemented by the Fifteenth Supplemental
Indenture, dated as of February 1, 2000 (the "Supplemental
Indenture") (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage").
We have examined such documents, records and certificates and
have reviewed such questions of law as we have deemed necessary
and appropriate for the purpose of this opinion. This opinion is
rendered to you at the request of the Company. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
In order to render this opinion, we have assumed that the
Company does not own any real or personal property or other
facilities in the State of Arkansas, except for an undivided
twenty-five percent (25%) ownership interest in the Independence
Steam Electric Station at Newark, Arkansas, and that the Company
does not maintain any service territory or serve any retail
customers in the State of Arkansas. We have also assumed that
the issuance and sale of the Bonds have had significant contacts
with the State of New York.
Based upon the foregoing and subject to the foregoing and to
the further exceptions and qualifications set forth below, we are
of the opinion that:
(1) The Company is duly qualified to conduct the
business that it is described as conducting in the Prospectus as
a foreign corporation and is in good standing under the laws of
the State of Arkansas and holds adequate and subsisting
franchises, certificates of public convenience and necessity,
licenses and permits to permit it to conduct its business as
presently conducted in Arkansas.
(2) The courts of Arkansas will enforce any provision
in the Mortgage, the Bonds and the Underwriting Agreement,
stipulating that the laws of the State of New York shall govern
the Mortgage, the Bonds and the Underwriting Agreement, except to
the extent that the validity or perfection of the lien of the
Mortgage, or remedies thereunder, are governed by the laws of a
jurisdiction other than the State of New York, except, with
respect to enforcement of the Mortgage, as the same may be
limited by the laws of the State of Arkansas affecting the
remedies for the enforcement of the security provided for
therein, which laws do not, in our opinion, make inadequate
remedies necessary for the realization of the benefits of such
security.
(3) There are no authorizations, approvals, consents
or orders of any governmental authority in the State of Arkansas
(other than in connection or compliance with the provisions of
the securities or "blue sky" laws as to which no opinion is
expressed herein) legally required for the execution, delivery
and performance by the Company of the Underwriting Agreement or
to permit the issuance and sale by the Company of the Bonds
pursuant to the Underwriting Agreement.
(4) Substantially all physical properties located in
the State of Arkansas (other than those expressly excepted) which
have been or hereafter may be acquired by the Company have been
or, upon such acquisition, will become subject to the lien of the
Mortgage, subject, however, to Excepted Encumbrances (as defined
in the Mortgage) and to liens, defects, and encumbrances, if any,
existing or placed thereon at the time of the acquisition thereof
by the Company and except as may be limited by bankruptcy law.
(5) The Company has good and sufficient legal right,
title and interest in and to the Mortgaged and Pledged Property
(as defined in the Mortgage) located in the State of Arkansas
free and clear of any lien or encumbrance except for the lien of
the Mortgage and for Excepted Encumbrances (as defined in the
Mortgage), and except for minor defects and encumbrances
customarily found in physical properties of like size and
character which do not, in our opinion, materially impair the use
of such properties affected thereby in the conduct of the
business of the Company. Our opinion in the first sentence of
this paragraph (5) is subject to the following:
We have, with your consent, performed the following
procedures and relied upon the following:
(a) a Limited Title Search performed by Independence County
Abstract Company, Inc., covering the period from September 10,
1981 to February [ ], 2000; (b) a review by Independence
County Abstract Company, Inc. of the Grantor/Grantee indices of
volumes in the real estate records of Independence County,
Arkansas in which transactions that would affect the Company's
title to its property located in such County would be recorded;
(c) a review of the Plaintiff/Defendant indices of official
records of the Circuit Court and Chancery Court of Independence
County, Arkansas and of the United States District Court for the
Eastern District of the State of Arkansas, in each case for civil
suits currently pending therein; and (d) a certificate of the
Secretary of State of the State of Arkansas reflecting the
results of a search of the records maintained by such official
pursuant to Act 375 of the Acts of Arkansas of 1965 (the Arkansas
Transmitting Utility Act).
(6) The description of the Mortgaged and Pledged
Property (as defined in the Mortgage) which is located in the
State of Arkansas, as set forth in the Mortgage, is adequate to
constitute a lien on such Mortgaged and Pledged Property. The
recording of the Mortgage among the land records in the office of
the Circuit Clerk of Independence County, Arkansas, which
recording will be duly effected, and the filing of Uniform
Commercial Code financing statements covering the personal
property and fixtures described in the Mortgage subject to the
lien thereof in the office of the Secretary of State of the State
of Arkansas, which filing will be duly effected, are the only
recordings, filings, re-recordings or refilings required by
Arkansas law in order to protect and maintain the lien of the
Mortgage on any Arkansas property described therein and subject
thereto.
We are members of the Arkansas Bar, and we express no
opinion on the laws of any jurisdiction other than the State of
Arkansas.
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 may
not be relied upon in any manner by any other person or for any
other purpose, without our prior written consent, except that
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
may rely on this opinion as to all matters of Arkansas law in
rendering their opinions required to be delivered under the
Underwriting Agreement.
Sincerely,
FRIDAY, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
EXHIBIT C
[Letterhead of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP]
February 15, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
BNY Capital Markets, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We, together with Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇,
Senior Counsel-Corporate and Securities of Entergy Services,
Inc., have acted as counsel for Entergy Mississippi, Inc., a
Mississippi corporation (the "Company"), in connection with the
issuance and sale to you pursuant to the Underwriting Agreement,
effective February [ ], 2000 (the "Underwriting Agreement"),
between the Company and you, of $120,000,000 aggregate principal
amount of its First Mortgage Bonds, 7 3/4% Series due February15,
2003 (the "Bonds"), issued pursuant to the Company's Mortgage and
Deed of Trust, dated as of February 1, 1988, with ▇▇▇▇▇▇ Trust
Company of New York, formerly Bank of Montreal Trust Company
(successor to The Chase Manhattan Bank (National Association)),
as Corporate Trustee (the "Corporate Trustee"), and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ (successor to Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), as Co-Trustee, as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, and as it will be further
amended and supplemented by the Fifteenth Supplemental Indenture,
dated as of February 1, 2000 (the "Supplemental Indenture") (the
Mortgage and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"). This opinion is
being rendered to you at the request of the Company. Capitalized
terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Underwriting Agreement.
In our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with:
(a) the Company's Restated Articles of Incorporation and By-Laws,
each as amended; (b) the Underwriting Agreement; (c) the
Mortgage; (d) the Registration Statement and the Prospectus; (e)
the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Company and
the execution and delivery by the Company of the Supplemental
Indenture and the Underwriting Agreement; and (f) the proceedings
before and the order entered by the Commission under the Holding
Company Act relating to the issuance and sale of the Bonds by the
Company. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies and
the authenticity of the originals of such latter documents. We
have not examined the Bonds, except specimens thereof, and we
have relied upon a certificate of the Corporate Trustee as to the
authentication and delivery thereof.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with
its terms, except (i) as may be limited by the laws of the
States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
and (ii) as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been
instituted or, to our knowledge, threatened by the
Commission.
(2) The Bonds have been duly and validly authorized by
all necessary corporate action on the part of the Company
and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles
(whether considered in a proceeding in equity or at law) and
are entitled to the benefit of the security afforded by the
Mortgage.
(3) The statements made in the Prospectus under the
captions "Description of the New Bonds," insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the
Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Statements of
Eligibility, upon which we do not pass) the Trust Indenture
Act, and the applicable instructions, rules and regulations
of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Exchange
Act, and incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date filed with
the Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
Registration Statement has become, and on the date hereof
is, effective under the Securities Act; and, to the best of
our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose are pending or threatened under
Section 8(d) of the Securities Act.
(6) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the
issuance and sale of the Bonds by the Company; 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 under the Securities Act
or the Trust Indenture Act, which have been duly obtained,
or in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement; and no
further approval, authorization, consent or other order of
any governmental body is legally required to permit the
performance by the Company of its obligations with respect
to the Bonds or under the Mortgage and the Underwriting
Agreement.
In passing upon the forms of the Registration Statement and
the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain
officers, employees and representatives of the Company and
Entergy Services, Inc., with other counsel for the Company, and
with the independent certified public accountants of the Company
who audited certain of the financial statements included or
incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at
the Effective Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424(b) and at the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to (i) the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus, (ii)
the Statements of Eligibility or (iii) the information contained
in the Prospectus under the caption "Description of the New
Bonds-Book-Entry System G&R Bonds."
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
other jurisdiction other than the State of New York and the
United States of America. As to all matters of Mississippi and
Wyoming law, we have relied upon the opinion of even date
herewith addressed to you by ▇▇▇ ▇. ▇▇▇, Senior Counsel-Corporate
and Securities of Entergy Services, Inc., and as to all matters
of Arkansas law, we have relied upon the opinion of even date
herewith addressed to you by Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special
counsel to the Company. We have not examined into and are not
passing upon matters relating to incorporation of the Company,
titles to property, franchises or the lien of the Mortgage.
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 ▇▇▇
▇. ▇▇▇, Senior Counsel-Corporate and Securities of Entergy
Services, Inc., may rely on this opinion as to all matters of New
York law in rendering her opinion required to be delivered under
the Underwriting Agreement.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
EXHIBIT D
[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
February 15, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
BNY Capital Markets, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for you as the several underwriters
of $120,000,000 aggregate principal amount of First Mortgage
Bonds, 7 3/4% Series due February 15, 2003 (the "Bonds"), issued by
Entergy Mississippi, Inc., a Mississippi corporation (the
"Company"), under the Company's Mortgage and Deed of Trust, dated
as of February 1, 1988, with ▇▇▇▇▇▇ Trust Company of New York,
formerly Bank of Montreal Trust Company (successor to The Chase
Manhattan Bank (National Association)), as Corporate Trustee (the
"Corporate Trustee"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (successor to Z.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), as Co-Trustee, as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, and as it will be further amended and
supplemented by the Fifteenth Supplemental Indenture, dated as of
February 1, 2000 (the Mortgage and Deed of Trust as so amended
and supplemented being hereinafter referred to as the
"Mortgage"), pursuant to the Underwriting Agreement between you
and the Company effective February [ ], 2000 (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
opinions of even date herewith addressed to you of Friday,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, as to all matters of
Arkansas law related to this opinion and by ▇▇▇ ▇. ▇▇▇, Senior
Counsel-Corporate and Securities of Entergy Services, Inc., as to
all matters of Mississippi and Wyoming law related to this
opinion. We have also reviewed said opinions, and the opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇▇, Wyoming counsel to the Company, as to certain
matters of Wyoming law (upon which you are permitted to rely),
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 reviewed, and have relied as to matters of fact
material to this opinion upon, the documents delivered to you at
the closing of the transactions contemplated by the Underwriting
Agreement, and we have reviewed such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to render this opinion. As to
such matters of fact material to this opinion, we have relied
upon representations and certifications of the Company in such
documents and in the Underwriting Agreement, and upon statements
in the Registration Statement. In such review, we have assumed
the genuineness of all signatures, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals and the
correctness of all statements of fact contained in all such
original documents. We have not examined the Bonds, except
specimens thereof, and we have relied upon a certificate of the
Corporate Trustee as to the authentication and delivery thereof
and as to the authorization, execution and delivery of the
Supplemental Indenture. We have not examined, and are expressing
no opinion or belief as to matters relating to, incorporation of
the Company, titles to property, franchises or the lien of the
Mortgage. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, and is a legal, valid and binding instrument of
the Company enforceable against the Company in accordance
with its terms, except as limited by (i) the laws of the
States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security purported to be provided
for therein, (ii) bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (whether considered in a
proceeding in equity or at law), and (iii) an implied
covenant of reasonableness, good faith and fair dealing;
and, to the best of our knowledge, the Mortgage is qualified
under the Trust Indenture Act and no proceedings to suspend
such qualification have been instituted or threatened by the
Commission.
(2) The Bonds have been duly and validly authorized by
all necessary corporate action on the part of the Company
and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and general equitable principles (whether considered
in a proceeding in equity or at law) and by an implied
covenant of reasonableness, good faith and fair dealing and
are entitled to the benefit of the security purported to be
afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions "Description of the New Bonds," insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) An appropriate order has been entered by the
Commission under the Holding Company Act, authorizing the
issuance and sale of the Bonds by the Company, 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 under the
Securities Act or the Trust Indenture Act, which, to the
best of our knowledge, has been duly obtained, or in
connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or
incorporated by reference therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b), complied as to form in all material
respects with the applicable requirements of the Securities
Act and (except with respect to the Statements of
Eligibility, upon which we do not pass) the Trust Indenture
Act, and the applicable instructions, rules and regulations
of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Exchange
Act, and incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
such documents or portions thereof, on the date filed with
the Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith. To
the best of our knowledge, the Registration Statement has
become, and on the date hereof is, effective under the
Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement and
the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of the statements made by
the Company and information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain
officers, employees and representatives of the Company and
Entergy Services, Inc., with counsel for the Company and with
your representatives. Our review of the Registration Statement
and the Prospectus and the above-mentioned discussions did not
disclose to us any information that gives us reason to believe
that the Registration Statement, at the Effective Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, at
the time filed with the Commission pursuant to Rule 424(b) and at
the date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to (i) the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus or (ii) the Statements of Eligibility.
With respect to the opinions set forth in paragraphs (1) and
(2) above, we call your attention to the fact that Section 9.08
of the Mortgage provides that the Company will promptly record
and file the Supplemental Indenture in such manner and in such
places, as may be required by law in order to fully preserve and
protect the security of the bondholders and all rights of the
Corporate Trustee.
This opinion is solely for your benefit in connection with
the Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose, without our prior written
consent.
Very truly yours,
WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
EXHIBIT E
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS
PURSUANT TO SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT
FOR INCLUSION IN THE LETTER OF THE ACCOUNTANTS
REFERRED TO THEREIN
Caption Page Item
Annual Report on Form 10-K
for the year ended
December 31, 1998
"SELECTED FINANCIAL DATA 109 The amounts of electric
- FIVE-YEAR COMPARISON" operating revenues (by
source) for the twelve month
periods ended December 31,
1998, 1997 and 1996
Quarterly Report on Form
10-Q for the quarterly
period ended March 31,
1999
"SELECTED OPERATING 52 The amounts of electric
RESULTS" operating revenues (by
source) for the three month
periods ended March 31, 1999
and 1998
Quarterly Report on Form
10-Q for the quarterly
period ended June 30,
1999
"SELECTED OPERATING 56 The amounts of electric
RESULTS" operating revenues (by
source) for the three and
six month periods ended June
30, 1999 and 1998
Quarterly Report on Form
10-Q for the quarterly
period ended September
30, 1999
"SELECTED OPERATING 60 The amounts of electric
RESULTS" operating revenues (by
source) for the three and
nine month periods ended
September 30, 1999 and 1998
