Exhibit B-(1)(a)
$70,000,000
System Energy Resources, Inc.
First Mortgage Bonds, 4?% Series due 2007
UNDERWRITING AGREEMENT
September 18, 2002
Barclays Capital Inc.
BNP Paribas Securities Corp.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
The undersigned, System Energy Resources, Inc., an Arkansas
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
$70,000,000 principal amount of the Company's First Mortgage
Bonds, 4?% Series due 2007 (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 a purchase
price of 99.293% 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 June 15, 1977, with The Bank of New York (successor
to United States Trust Company of New York), as Corporate Trustee
(the "Corporate Trustee"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (successor to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇), 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 Twenty-second
Supplemental Indenture, dated as of September 1, 2002 (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
Arkansas 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.
(b) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
3 (File No. 333-06717) for the registration of $695,000,000
aggregate principal amount of the Company's debt securities (at
least $190,000,000 of which remaining unsold must consist of the
Company's unsecured debt securities), including the Bonds, under
the Securities Act of 1933 (the "Securities Act") ($415,000,000
of which debt securities remain unsold before giving effect to
the issuance and sale of the Bonds) 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, 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
securities of the Company 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
securities of the Company other than the Bonds), which are
incorporated or deemed to be incorporated by reference in the
Basic Prospectus pursuant to Item 12 of Form S-3, the term "Basic
Prospectus" as used herein shall also mean such prospectus as so
amended, revised or supplemented and reflecting such
incorporation by reference. 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 securities of the Company 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
Pillsbury Winthrop LLP ("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 securities of the Company 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 securities of the Company
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 has obtained all
material licenses, permits, and other governmental or regulatory
authorizations currently required for the conduct of its
business, and is in all material respects complying therewith,
and the Company is not aware of any fact that would lead it to
believe that any material license, permit or other governmental
or regulatory authorization would not remain in effect or be
renewed in its ordinary course of business.
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
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 September 24, 2002, or at
such other time on the same or such other day as shall be agreed
upon by the Company and Barclays Capital Inc., as representative
of the Underwriters, 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 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 Barclays Capital Inc., as representative of the
Underwriters, 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 of the Bonds, 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 First 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.
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, orders 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 ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional Association,
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, and
counsel for Entergy Arkansas, Inc. ("Entergy Arkansas"), Entergy
Louisiana, Inc. ("Entergy Louisiana"), Entergy Mississippi, Inc.
("Entergy Mississippi") and Entergy New Orleans, Inc. ("Entergy
New Orleans"), respectively, opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A, B, C and D
hereto, respectively, (i) with such changes therein as may be
agreed upon by the Company and the Underwriters with the approval
of Counsel for the Underwriters, and (ii) if the 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 E hereto,
with such changes therein as may be necessary to reflect any
supplementation of the Prospectus on or prior to the Closing
Date.
(f) On or prior to the date this Underwriting Agreement became
effective, the Underwriters shall have received from Deloitte &
Touche 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, 2001, 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, or for changes or decreases as set
forth in such letter, identifying the same and specifying the
amount thereof; and (iv) stating that they have compared specific
dollar amounts, percentages of revenues and earnings and other
financial information pertaining to the Company set forth or
incorporated by reference in the Prospectus to the extent that
such amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and excluding
any questions requiring an interpretation by legal counsel, with
the results obtained from the application of specified readings,
inquiries and other appropriate procedures (which procedures do
not constitute an examination in accordance with generally
accepted auditing standards) set forth in the letter, and found
them to be in agreement.
(g) At the Closing Date, the Underwriters shall have received
(i) 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 (A) the
representations and warranties of the Company contained herein
are true and correct, (B) 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 (C) 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 and (ii) a certificate, dated the Closing Date and
signed by the President, a Vice President, the Treasurer or an
Assistant Treasurer of Entergy Corporation ("Entergy") to the
effect that (A) except as set forth or contemplated in the
Prospectus, as it may then be amended or supplemented, Entergy,
Entergy Arkansas, Entergy Louisiana, Entergy Mississippi and
Entergy New Orleans have obtained all material licenses, permits,
approvals and other governmental or regulatory authorizations
required to enable them to fulfill their obligations to the
Company under the terms of, with respect to Entergy, the Capital
Funds Agreement, dated as of June 21, 1974, as amended, and the
Thirty-fourth Supplementary Capital Funds Agreement and
Assignment, dated as of September 1, 2002 (the "Supplementary
Capital Funds Agreement"), among the Company, the Trustees and
Entergy, and, with respect to Entergy Arkansas, Entergy
Louisiana, Entergy Mississippi and Entergy New Orleans, the
Availability Agreement, dated as of June 21, 1974, as amended,
and the Thirty-fourth Assignment of Availability Agreement,
Consent and Agreement, dated as of September 1, 2002 (the
"Assignment of Availability Agreement"), among the Company, the
Trustees, Entergy Arkansas, Entergy Louisiana, Entergy
Mississippi and Entergy New Orleans, each as described in the
Prospectus and (B) since the most recent date as of which
information is given in the Prospectus, there has not been any
material adverse change in the business, property or financial
condition of Entergy and its subsidiaries considered as a whole.
(h) At the Closing Date, the Underwriters shall have received
duly executed counterparts of (i) the Assignment of Availability
Agreement, (ii) the Supplementary Capital Funds Agreement and
(iii) 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 (as
defined therein) shall have occurred.
(k) Between the date hereof and the Closing Date, no event shall
have occurred with respect to or otherwise affecting the Company,
or Entergy and its various direct and indirect subsidiaries taken
as a whole as it affects the Company, which in the reasonable
opinion of the Underwriters materially impairs the investment
quality of the Bonds.
(l) On or prior to the Closing Date, the Underwriters shall have
received from the Company evidence reasonably satisfactory to the
Underwriters that the Bonds have received ratings of Baa3 or
better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB- or better
from Standard & Poor's Ratings Services.
(m) 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 First Mortgage Bonds in any respect.
(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 Barclays Capital Inc., as representative of 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 orders 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 Barclays Capital
Inc., as representative of the Underwriters. 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, in the case of any
action arising out of the issuance and sale of the Bonds, in any
prior registration statement to which the Basic Prospectus, as a
combined prospectus under Rule 429 of the rules and regulations
of the Commission under the Act, relates), 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
securities of the Company 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 Barclays Capital
Inc., as representative of the Underwriters, 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 a
material disruption in commercial banking or securities
settlement or clearance services in the United States shall have
occurred, (iv) there shall have occurred any outbreak or
escalation of hostilities or any calamity or crisis that, in the
judgment of Barclays Capital Inc., as representative of the
Underwriters, is material and adverse, or (v) any material
adverse change in financial, political or economic conditions in
the United States or elsewhere shall have occurred and (b) in the
case of any of the events specified in clauses (a)(i) through
(v), such event singly or together with any other such event
makes it, in the reasonable judgment of Barclays Capital Inc., as
representative of the Underwriters, impracticable to market the
Bonds. This Underwriting Agreement shall also be subject to
termination, upon notice by Barclays Capital Inc., as
representative of the Underwriters, as provided above, if, in the
judgment of Barclays Capital Inc., as representative of the
Underwriters, 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 securities of the Company 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 Barclays Capital Inc., as representative of the Underwriters,
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 Barclays Capital Inc., as representative of the Underwriters,
at the address set forth at the beginning of this Underwriting
Agreement to the attention of Transaction Management, 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,
System Energy Resources, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
Accepted as of the date first above written:
Barclays Capital Inc.
BNP Paribas Securities Corp.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
By: Barclays Capital Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SCHEDULE I
$70,000,000
System Energy Resources, Inc.
First Mortgage Bonds, 4-7/8% Series due 2007
Name Amount of
Bonds
Barclays Capital Inc. $32,200,000
BNP Paribas Securities Corp. 32,200,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 5,600,000
-----------
Total $70,000,000
===========
EXHIBIT A
[Letterhead of ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇]
September __, 2002
Barclays Capital Inc.
BNP Paribas Securities Corp.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We, together with ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, of New York, New
York, and Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, of Little Rock,
Arkansas, have acted as counsel for System Energy Resources,
Inc., an Arkansas corporation (the "Company"), in connection with
the issuance and sale to each of you, pursuant to the
Underwriting Agreement effective September 18, 2002 (the
"Underwriting Agreement"), between the Company and you, of
$70,000,000 aggregate principal amount of its First Mortgage
Bonds, 4?% Series due 2007 (the "Bonds"), issued pursuant to the
Company's Mortgage and Deed of Trust, dated as of June 15, 1977,
with The Bank of New York (successor to United States Trust
Company of New York), as Corporate Trustee (the "Corporate
Trustee"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (successor to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇), 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, including the Twenty-second
Supplemental Indenture, dated as of September 1, 2002, (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 our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with: (a)
the Company's Amended and Restated Articles of Incorporation and
By-Laws, each as amended; (b) the Underwriting Agreement; (c) the
Mortgage; (d) the Registration Statement and the Prospectus filed
under the Securities Act; (e) the Availability Agreement dated as
of June 21, 1974, as amended (the "Availability Agreement"),
between the Company, Entergy Arkansas, Inc., Entergy Louisiana,
Inc., Entergy Mississippi, Inc. and Entergy New Orleans, Inc.;
(f) the Assignment of Availability Agreement; (g) the Capital
Funds Agreement dated as of June 21, 1974, as amended (the
"Capital Funds Agreement"), between the Company and Entergy
Corporation; (h) the Supplementary Capital Funds Agreement; (i)
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, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement; and (j) the proceedings before and the orders entered
by the Commission under the Holding Company Act relating to the
issuance and sale of the Bonds by the Company and the execution
and delivery by the Company of the Supplemental Indenture, the
Availability Agreement, the Assignment of Availability Agreement,
the Capital Funds Agreement, the Supplementary Capital Funds
Agreement and the Underwriting Agreement. 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 a
specimen 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 Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Arkansas, 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 in
the States of Arkansas and Mississippi.
(2) 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
the same may be limited by the laws of the State of Mississippi,
where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for
therein, which laws do not, in our opinion, make inadequate the
remedies provided by the Mortgage for the realization of the
benefits of such security, and (ii) as the same 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 duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds" and "Description of the Bonds," respectively, 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.
(4) 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
in accordance with their terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, or other similar laws affecting the 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.
(5) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(6) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(7) The issuance and sale by the Company of the Bonds and
the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement (a) will not violate any provision of the Company's
Amended and 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, the Assignment of Availability
Agreement and the Supplementary Capital Funds Agreement) any of
the assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other undertaking
known to us (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 our 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 approvals, authorizations, orders,
licenses, permits, franchises and consents of, and registrations,
declarations and filings with, governmental authorities may be
required to be obtained or made, as the case may be, (1) in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction, (2) in connection with the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station and (3) as
set forth in the exceptions to the opinion set forth in paragraph
(9) below).
(8) 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, when it became effective, 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 by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the date they
were first 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 its effectiveness has been issued and no
proceedings for that purpose are pending or threatened under
Section 8(d) of the Securities Act.
(9) Appropriate orders have been entered by the Commission
under the Holding Company Act authorizing the issuance and sale
of the Bonds and the execution, delivery and (except to the
extent indicated below) performance by the Company of the
Assignment of Availability Agreement and the Supplementary
Capital Funds Agreement; to the best of our knowledge, said
orders are in full force and effect; no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act and the Trust Indenture Act,
which have been duly obtained, or in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Bonds 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 (other than that relating to the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station) by the
Company of its obligations with respect to the Bonds or under the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement, except (1) appropriate orders or the taking of other
action by governmental regulatory authorities having jurisdiction
pursuant to valid statutory enactments as to the issuance by the
Company, and the acquisition by Entergy, of any securities to be
issued by the Company to Entergy pursuant to the Capital Funds
Agreement and the Supplementary Capital Funds Agreement after the
date hereof, and as to the issuance by the Company of any
securities to parties other than Entergy pursuant to the Capital
Funds Agreement and the Supplementary Capital Funds Agreement
after the date hereof and (2) with respect to the Availability
Agreement and the Assignment of Availability Agreement (other
than each respective Section 2.2(b) thereof), in the event that
the Company shall determine to sell capacity and/or energy from
any generating unit pursuant to the terms of the Availability
Agreement or the Assignment of Availability Agreement,
appropriate orders, or the taking of other action, by
governmental regulatory authorities having jurisdiction pursuant
to valid statutory enactments as to the specific terms and
provisions under which such capacity and/or energy shall be made
available.
(10) 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. The description of such properties set forth in the
Mortgage is adequate to constitute the Mortgage a lien thereon.
The recording of the Mortgage in the office of the Chancery Clerk
of Claiborne County, Mississippi, which recording has been 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 Chancery
Clerk of Claiborne County, Mississippi and the Secretary of State
of the State of Arkansas, which filings have been duly effected,
and the filing of continuation statements within six months prior
to the expiration of each five-year period from the date of
original filing with respect to such financing statements, are
the only recordings, filings, rerecordings and refilings required
by law in order to perfect and maintain the lien of the Mortgage
on any of the property described therein as subject thereto; as a
result of the recording and filings referred to above, the
Mortgage creates as security for the Bonds (i) a valid, first
lien on all real property and interests in real property and the
improvements thereon specifically described in the granting
clauses of the Mortgage (and not excepted from the lien of the
Mortgage by the provisions thereof or released under the terms of
the Mortgage) and (ii) a first perfected security interest in all
personal property, interests in personal property and fixtures
specifically described in the granting clauses of the Mortgage
(and not excepted from the lien of the Mortgage by the provisions
thereof or released under the terms of the Mortgage), in each
case subject to no liens, charges or encumbrances, other than
minor defects of the character aforesaid and Excepted
Encumbrances, subject, however, to liens, defects and
encumbrances, if any, existing or placed thereon at the time of
acquisition thereof by the Company; and the provisions of the
Mortgage are effective to extend the lien thereof to all
properties and interests in properties which the Company may
acquire after the date of the Mortgage, which are of the type
referred to in the Mortgage as intended to be mortgaged thereby
when acquired, and the lien of the Mortgage will extend to all
such properties and interests in properties and will constitute a
valid first lien on all such real property and interests therein
and a first perfected security interest in all such personal
property and interests therein (subject, however, to Excepted
Encumbrances, and to liens, defects and encumbrances, if any,
existing or placed thereon at the time of acquisition thereof by
the Company and except as may be limited by bankruptcy law)
without the execution and delivery of any supplemental indenture
or other instrument specifically extending the lien to such real
property or interests therein or the taking of any other action
specifically extending the lien of the Mortgage to such personal
property or interests therein, other than the filing of the
continuation statements within six months prior to the expiration
of each five-year period from the date of original filing with
respect to the financing statements as described above.
(11) The filing of Uniform Commercial Code financing
statements in the offices of the Secretary of State of the State
of Mississippi and the Secretary of State of the State of
Arkansas, which has been duly effected, and the filing of
continuation statements within six months prior to the expiration
of each five-year period from the date of original filing with
respect to such financing statements, are the only recordings,
filings, rerecordings or refilings in the State of Mississippi
and the State of Arkansas required by law in order to perfect and
maintain in favor of the Trustees (a) the security interest
created by the Supplementary Capital Funds Agreement in the
Company's right, title and interest in and to the Company's
rights to receive moneys described in clause (x) of Section 5.1
thereof and the Collateral described in Section 5.1 thereof or
(b) the security interest created by the Assignment of
Availability Agreement in the Company's right, title and interest
in and to the Collateral described in Section 1.1 thereof.
(12) (a) The Supplementary Capital Funds Agreement creates
in favor of the Trustees a perfected security interest in the
Company's right, title and interest in and to the Company's
rights to receive the moneys described in clause (x) of Section
5.1 thereof; the Supplementary Capital Funds Agreement creates in
favor of the Trustees a perfected security interest in the
Company's right, title and interest in and to the Collateral
described in Section 5.1 thereof pari passu with the security
interest of each Additional Assignee under an Additional
Supplementary Agreement (as such terms are defined in the
Supplementary Capital Funds Agreement) in such Collateral; and
(b) the Assignment of Availability Agreement creates in favor of
the Trustees a perfected security interest in the Company's
right, title and interest in and to the Collateral described in
Section 1.1 thereof pari passu with the security interest of each
Additional Assignee under an Additional Assignment (as such terms
are defined in the Assignment of Availability Agreement) in such
Collateral.
(13) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement and the Prospectus and which are not disclosed and
properly described therein as required are pending or, to our
knowledge, threatened; and we do not know of any contracts or
other documents of the Company of a character required to be
filed as exhibits to the Registration Statement which are not so
filed, or any contracts or other documents of the Company of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein as
required; the descriptions in the Registration Statement and
Prospectus of statutes, legal and government proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown. Except as disclosed in the
Prospectus, there is no action, suit, proceeding or investigation
pending against or affecting the Company or any of its assets the
result of which would, in our opinion, have a materially adverse
effect on the issuance and sale of the Bonds in accordance with
the Underwriting Agreement.
In passing upon the forms of the Registration Statement and
the Prospectus, we necessarily assume the correctness and
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 incorporated by
reference in the Registration Statement. Neither our examination
of the Registration Statement and the Prospectus nor our
discussions disclosed 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 the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the Statements of
Eligibility or as to the information contained in the Prospectus
under the caption "Book-Entry Securities. "
With respect to the opinions set forth in paragraphs (2) and
(4) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
As to matters set forth in paragraphs (10) and (11) above
and with respect to the maintaining of the security interests
created by the Supplementary Capital Funds Agreement and the
Assignment of Availability Agreement referred to in paragraph
(12) above, we have assumed that there will be no change in the
identity or location of the Company. We have examined the
portions of the information contained in the Registration
Statement that are stated therein to have been made on our
authority, and we believe such information to be correct. We are
members of the Mississippi Bar and do not hold ourselves out as
experts on the laws of any other state. We have examined the
opinions of even date herewith rendered to you by ▇▇▇▇▇▇ ▇▇▇▇ &
Priest LLP and Pillsbury Winthrop LLP, and we concur in the
conclusions expressed therein insofar as they involve questions
of Mississippi law. As to all matters of Arkansas and New York
law, we have relied, in the case of Arkansas law, upon the
opinion of even date herewith addressed to us by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, LLP of Little Rock, Arkansas, and, in the case of New
York law, upon the opinion of even date herewith addressed to you
by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP of New York, New York.
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
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and Pillsbury Winthrop LLP may rely on
this opinion as to all matters of Mississippi law in rendering
their opinions required to be delivered under the Underwriting
Agreement.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇ CHILD & ▇▇▇▇▇▇▇
Professional Association
BY:
EXHIBIT B
[Letterhead of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP]
September __, 2002
Barclays Capital Inc.
BNP Paribas Securities Corp.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We, together with ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional
Association, of Jackson, Mississippi, and Friday, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, LLP, of Little Rock, Arkansas, have acted as counsel for
System Energy Resources, Inc., an Arkansas corporation (the
"Company"), in connection with the issuance and sale to each of
you pursuant to the Underwriting Agreement effective September
18, 2002 (the "Underwriting Agreement"), between the Company and
you, of $70,000,000 aggregate principal amount of its First
Mortgage Bonds, 4?% Series due 2007 (the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
June 15, 1977, with The Bank of New York (successor to United
States Trust Company of New York), as Corporate Trustee (the
"Corporate Trustee"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (successor to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇), 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, including
the Twenty-second Supplemental Indenture, dated as of September
1, 2002, (the "Supplemental Indenture") (the Mortgage and Deed of
Trust as so amended and supplemented being hereinafter referred
to as the "Mortgage"). We have also acted as counsel to Entergy
Corporation, a Delaware corporation ("Entergy"), in connection
with the participation by Entergy in certain transactions related
to the issuance and sale of the Bonds by the Company. 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 our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with: (a)
the Company's Amended and Restated Articles of Incorporation and
By-Laws, each as amended, and Entergy's Certificate of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Mortgage; (d) the Registration Statement and
the Prospectus filed under the Securities Act; (e) the
Availability Agreement dated as of June 21, 1974, as amended (the
"Availability Agreement"), between the Company, Entergy Arkansas,
Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc. and
Entergy New Orleans, Inc.; (f) the Assignment of Availability
Agreement; (g) the Capital Funds Agreement dated as of June 21,
1974, as amended (the "Capital Funds Agreement"), between the
Company and Entergy; (h) the Supplementary Capital Funds
Agreement; (i) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
the Company, the execution and delivery by the Company of the
Supplemental Indenture, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement, the Supplementary Capital Funds Agreement and the
Underwriting Agreement and the execution and delivery by Entergy
of the Capital Funds Agreement and the Supplementary Capital
Funds Agreement; and (j) the proceedings before and orders
entered by the Commission under the Holding Company Act relating
to the issuance and sale of the Bonds by the Company, the
execution and delivery by the Company of the Supplemental
Indenture, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement and the execution and delivery by Entergy of the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement. 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 a specimen 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 as may
be limited by (i) the laws of the State of Mississippi, where the
property covered thereby is located, affecting the remedies for
the enforcement of the security purported to be provided therein
and (ii) applicable 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 is duly qualified under the Trust
Indenture Act, and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds" and "Description of the Bonds," respectively, insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(3) The 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
in accordance with their terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting the 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.
(4) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(5) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(6) Entergy is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Delaware and has due corporate power and authority to conduct its
business and to own and operate the properties owned and operated
by it in such business.
(7) The Capital Funds Agreement and the Supplementary
Capital Funds Agreement have been duly authorized, executed and
delivered by Entergy and constitute legal, valid and binding
obligations of Entergy enforceable against Entergy in accordance
with their respective 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).
(8) The issuance and sale by the Company of the Bonds, the
execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement and the execution, delivery and performance by Entergy
of the Capital Funds Agreement and the Supplementary Capital
Funds Agreement (a) will not violate any provision of the
Company's Amended and Restated Articles of Incorporation or By-
laws, each as amended, or Entergy's Certificate 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, the
Assignment of Availability Agreement and the Supplementary
Capital Funds Agreement) any of the assets of the Company or
Entergy pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having made
due inquiry with respect thereto) to which the Company or Entergy
is a party or which purports to be binding upon the Company or
Entergy or upon any of their respective assets, and (c) will not
violate any provision of any law or regulation applicable to the
Company or Entergy or, to the best of our 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 approvals,
authorizations, orders, licenses, permits, franchises and
consents of, and registrations, declarations and filings with,
governmental authorities may be required to be obtained or made,
as the case may be, (1) in connection or compliance with the
provisions of the securities or blue sky laws of any
jurisdiction, (2) in connection with the construction,
acquisition, ownership, operation and maintenance of the Grand
Gulf Nuclear Electric Generating Station and (3) as set forth in
the exceptions to the opinion set forth in paragraph (10) below).
(9) 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, when it became effective, 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 said
Securities Act.
(10) Appropriate orders have been entered by the Commission
under the Holding Company Act authorizing the issuance and sale
of the Bonds, the execution, delivery and (except to the extent
indicated below) performance by the Company of the Assignment of
Availability Agreement and the Supplementary Capital Funds
Agreement and the execution, delivery and (except to the extent
indicated below) performance by Entergy of the Supplementary
Capital Funds Agreement; to the best of our knowledge, said
orders are in full force and effect; no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act and the Trust Indenture Act,
which have been duly obtained, or in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Bonds 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 (other than that relating to the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station) by the
Company of its obligations with respect to the Bonds or under the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement or the performance by Entergy of its obligations under
the Capital Funds Agreement and the Supplementary Capital Funds
Agreement, except (1) appropriate orders or the taking of other
action by governmental regulatory authorities having jurisdiction
pursuant to valid statutory enactments as to the issuance by the
Company, and the acquisition by Entergy, of any securities to be
issued by the Company to Entergy pursuant to the Capital Funds
Agreement and the Supplementary Capital Funds Agreement after the
date hereof, and as to the issuance by the Company of any
securities to parties other than Entergy pursuant to the Capital
Funds Agreement and the Supplementary Capital Funds Agreement
after the date hereof and (2) with respect to the Availability
Agreement and the Assignment of Availability Agreement (other
than each respective Section 2.2(b) thereof), in the event that
the Company shall determine to sell capacity and/or energy from
any generating unit pursuant to the terms of the Availability
Agreement or the Assignment of Availability Agreement,
appropriate orders, or the taking of other action, by
governmental regulatory authorities having jurisdiction pursuant
to valid statutory enactments as to the specific terms and
provisions under which such capacity and/or energy shall be made
available.
In passing upon the forms of the Registration Statement and
the Prospectus, we necessarily assume the correctness and
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 (2) 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 "Book-Entry Securities."
We have examined the portions of the information contained
in the Registration Statement that are stated therein to have
been made on our authority, and we believe such information to be
correct. We are members of the New York Bar. This opinion is
limited to the law of the States of New York, Arkansas and
Mississippi, the General Corporation Law of the State of Delaware
and the federal law of the United States of America. As to all
matters of Arkansas and Mississippi law, we have relied upon the
below-named opinions of counsel to the extent that such opinions
state an opinion with regard to the matters covered by this
opinion. As to matters of Arkansas law relating to the Company,
we have, with your consent, relied upon an opinion of even date
herewith addressed to us of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP of
Little Rock, Arkansas that has been delivered to you pursuant to
the Underwriting Agreement. As to matters of Mississippi law
related to the Company, we have, with your consent, relied upon
the opinion of even date herewith of ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇,
Professional Association, of Jackson, Mississippi, that has been
delivered to you pursuant to the Underwriting Agreement.
We have not examined into and are not passing upon matters
relating to incorporation of the Company, titles to property, the
lien of the Mortgage, the priority of the security interests
intended to be created by the Supplementary Capital Funds
Agreement and the Assignment of Availability Agreement, or the
filing of any document with respect to the Capital Funds
Agreement, Supplementary Capital Funds Agreement, the
Availability Agreement and the Assignment of Availability
Agreement.
With respect to the opinions set forth in paragraphs (1) and
(3) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
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 ▇▇▇▇
▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional Association, may rely on
this opinion as to all matters of New York law in rendering their
opinion related to the Company required to be delivered under the
Underwriting Agreement.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
EXHIBIT C
(Letterhead of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP)
September __, 2002
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇,
Professional Association
Heritage Building
P.O. Box 651
Jackson, Mississippi 39205
Pillsbury Winthrop LLP
One Battery Park Plaza
New York, New York 10004
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc., an Arkansas corporation (the "Company"), in
connection with the issuance and sale by it, pursuant to the
Underwriting Agreement, effective September 18, 2002 (the
"Underwriting Agreement") between the Company and the
underwriters named therein of $70,000,000 aggregate principal
amount of its First Mortgage Bonds, 4?% Series due 2007 (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of June 15, 1977, with The Bank of New York
(successor to United States Trust Company of New York), as
Corporate Trustee (the "Corporate Trustee"), and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (successor to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇), 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,
including the Twenty-second Supplemental Indenture, dated as of
September 1, 2002, with respect to the Bonds (the "Supplemental
Indenture") (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage").
We have also acted as counsel to Entergy Arkansas, Inc., an
Arkansas corporation, in certain transactions related to the
issuance and sale of the Bonds by 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 Amended and 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 Availability Agreement dated as of June 21, 1974, as amended
(the "Availability Agreement"), between the Company, Entergy
Arkansas, Inc., Entergy Louisiana, Inc., Entergy Mississippi,
Inc. and Entergy New Orleans, Inc.; (f) the Assignment of
Availability Agreement; (g) the Capital Funds Agreement dated as
of June 21, 1974, as amended (the "Capital Funds Agreement"),
between the Company and Entergy Corporation ("Entergy"); (h) the
Supplementary Capital Funds Agreement; and (i) 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, the
Availability Agreement, the Assignment of Availability Agreement,
the Capital Funds Agreement, the Supplementary Capital Funds
Agreement and the Underwriting Agreement. 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 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 a
specimen 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 Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Arkansas and is duly qualified to conduct its business in such
State.
(2) 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 (i) as the same may be limited by the laws of the State of
Mississippi, where the property is located, affecting the
remedies for the enforcement of the security provided therein and
(ii) as the same 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).
(3) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(4) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(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
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 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 office of
the Secretary of State of the State of Arkansas as described on
Schedule A attached hereto, which filing has been duly effected,
and the filing of continuation statements within six months prior
to the expiration of each five year period from the date of
original filing with respect to such financing statements, are
the only recordings, filings, rerecordings and refilings in the
State of Arkansas required by law in order to perfect and
maintain the lien of the Mortgage on any of the personal property
and fixtures described therein as subject thereto; as a result of
the recording and filings referred to above, the Mortgage creates
as security for the Bonds a first perfected security interest in
all personal property, interests in personal property and
fixtures specifically described in the granting clauses of the
Mortgage (and not excepted from the lien of the Mortgage by the
provisions thereof or released under the terms of the Mortgage),
in each case subject to no liens, charges or encumbrances, other
than 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 and Excepted
Encumbrances, subject, however, to liens, defects and
encumbrances, if any, existing or placed thereon at the time of
acquisition thereof by the Company. Assuming that the provisions
of the Mortgage are effective to extend the lien thereof to all
properties and interests in properties which the Company may
acquire after the date of the Mortgage and which are of the type
referred to in the Mortgage as intended to be mortgaged thereby
when acquired, and that the lien of the Mortgage will extend to
all such properties and interests in properties, the lien of the
Mortgage will constitute a valid first perfected security
interest in all such personal property and interests therein
(subject, however, to Excepted Encumbrances, and to liens,
defects and encumbrances, if any, existing or placed thereon at
the time of acquisition thereof by the Company and except as may
be limited by bankruptcy law) without the execution and delivery
of any supplemental indenture or other instrument specifically
extending the lien of the Mortgage to such personal property or
interests therein, other than the filing of the continuation
statements within six months prior to the expiration of each five
year period from the date of original filing with respect to the
financing statements as described above.
(7) The filing of Uniform Commercial Code financing
statements in the office of the Secretary of State of the State
of Arkansas as described on Schedule A attached hereto, which has
been duly effected, and the filing of continuation statements
within six months prior to the expiration of each five year
period from the date of original filing with respect to such
financing statements, are the only recordings, filings,
rerecordings or refilings in the State of Arkansas required by
law in order to perfect and maintain in favor of the Trustees (a)
the security interest created by the Supplementary Capital Funds
Agreement in the Company's right, title and interest in and to
the Company's rights to receive moneys described in clause (x) of
Section 5.1 thereof and the Collateral described in Section 5.1
thereof or (b) the security interest created by the Assignment of
Availability Agreement in the Company's right, title and interest
in and to the Collateral described in Section 1.1 thereof.
(8) The issuance and sale by the Company of the Bonds and
the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement (a) will not violate any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, and (b) will not violate any provision of any law or
regulation of the State of Arkansas or any subdivision thereof
applicable to the Company or, to the best of our knowledge
(having made due inquiry with respect thereto), any provision of
any order, writ, judgment or decree of any governmental
instrumentality of the State of Arkansas or any subdivision
thereof applicable to the Company.
(9) No approval, authorization, order, license, permit,
franchise or consent of or registration, declaration or filing
with any Arkansas governmental authority is required in
connection with the issuance and sale of the Bonds or the
execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and the Underwriting
Agreement.
With respect to the opinions set forth in paragraphs (2) and
(5) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
With respect to the opinion set forth in paragraph (6)
above, we have not examined the status of the Company's title to
the personal property and fixtures described as being subject to
the lien of the Mortgage and we have assumed that such property
exists and that the Company has sufficient rights therein for the
lien of the Mortgage to attach. We express no opinion in
paragraph (6) with respect to any personal property of a type (i)
represented by certificate of title, (ii) constituting
trademarks, copyrights, patents or other intellectual property,
or (iii) in which a security interest cannot be perfected solely
by the filing of financing statements under the Uniform
Commercial Code in effect in the State of Arkansas on the date of
this opinion letter.
In connection with the opinions set forth in paragraphs (6)
and (7) above, we have assumed, with respect to any financing
statement described on Schedule A attached hereto which is filed
as an "initial financing statement" (as that term is contemplated
in Section 9-706 of the Uniform Commercial Code in effect in the
State of Arkansas as of the date of this opinion letter) and
which serves the purpose of continuing the effectiveness of a
financing statement filed before June 30, 2001 (a "Pre-Effective
Date Financing Statement") that any such Pre-Effective Date
Financing Statement was properly filed in the appropriate
jurisdiction and serves to perfect a security interest in the
collateral described in such Pre-Effective Date Financing
Statement and that such Pre-Effective Date Financing Statement
has not been rendered ineffective as of the date of this opinion
letter.
Also with respect to the opinions set forth in paragraph (6)
and (7) and with respect to the maintaining of the security
interests created by the Mortgage, the Supplementary Capital
Funds Agreement and the Assignment of Availability Agreement as
referred to therein, we have assumed that there will be no change
in the identity or location of the Company.
Since we have acted herein only as Arkansas counsel for the
Company, the opinions set forth herein relate only to matters
governed by the laws of the State of Arkansas. You may rely upon
this opinion in rendering your respective opinions required to be
delivered under the Underwriting Agreement, and the underwriters
to whom your respective opinions are addressed may rely upon this
opinion in connection with the Underwriting Agreement and the
transactions contemplated thereunder as though it were addressed
and delivered to such underwriters. This opinion may not be
relied upon in any other manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
FRIDAY, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
EXHIBIT D
[Letterhead of System Operating Company Counsel]
September __, 2002
Barclays Capital Inc.
BNP Paribas Securities Corp.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for ___________, a ___________
corporation (the "Company"), in connection with the transactions
contemplated by the Underwriting Agreement, effective September
18, 2002 (the "Underwriting Agreement"), between System Energy
Resources, Inc. ("System Energy") and you, relating to the
issuance and sale to you of $70,000,000 aggregate principal
amount of its First Mortgage Bonds, 4?% Series due 2007 (the
"Bonds"). 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 our capacity as such counsel, we have either participated
in the preparation of or have reviewed: (a) the Availability
Agreement dated as of June 21, 1974, as amended (the
"Availability Agreement"), among System Energy, the Company and
[insert other system operating companies]; (b) the Assignment of
Availability Agreement; (c) the records of various corporate
proceedings relating to the Company's participation in the
Availability Agreement and the Assignment of Availability
Agreement; (d) the proceedings before and orders entered by the
Commission under the Holding Company Act relating to the
Company's participation in the Availability Agreement and the
Assignment of Availability Agreement; and (e) the Registration
Statement and Prospectus filed under the Securities Act. 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 also examined such
other matters as we have deemed necessary in order to render this
opinion.
Subject to the foregoing, we are 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
_________ and has the corporate power and authority to conduct
its business in the State(s) of __________ and to own and operate
the properties owned and operated by it in such business.
(2) The Availability Agreement and the Assignment of
Availability Agreement have been duly authorized, executed and
delivered by the Company and constitute legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or by other similar laws affecting the enforcement
of mortgagees' and other creditors' rights and general equitable
principles (whether considered in a proceeding in equity or at
law).
(3) Appropriate orders have been entered by the Commission
under the Holding Company Act authorizing the Company's
participation in the Availability Agreement and the Assignment of
Availability Agreement; to the best of our knowledge, such orders
are in full force and effect; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the execution, delivery and
performance by the Company of the Availability Agreement and the
Assignment of Availability Agreement, except (other than with
respect to Section 2.2(b) of the Assignment of Availability
Agreement) in the event that System Energy shall determine to
sell capacity and/or energy from any generating unit under the
terms of the Availability Agreement or the Assignment of
Availability Agreement, appropriate orders, or the taking of
other action, by governmental regulatory authorities having
jurisdiction pursuant to valid statutory enactments as to the
specific terms and provisions under which capacity and/or energy
shall be made available.
(4) The execution, delivery and performance by the Company
of the Availability Agreement and the Assignment of Availability
Agreement (a) will not violate any provision of the Company's
[charter name] or By-laws, each as amended, (b) will not violate
any provision of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance on or
security interest in any of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to us (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 our
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 as
set forth in the exceptions to the opinion set forth in paragraph
(3) above).
We have examined the portions of the information contained
or incorporated by reference in the Registration Statement which
are stated therein to have been made on our authority, and we
believe such information to be correct.
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.
Very truly yours,
[SYSTEM OPERATING COMPANY COUNSEL]
EXHIBIT E
[Letterhead of Pillsbury Winthrop LLP]
September __, 2002
Barclays Capital Inc.
BNP Paribas Securities Corp.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for you as the several underwriters
of $70,000,000 aggregate principal amount of First Mortgage
Bonds, 4?% Series due 2007 (the "Bonds"), issued by System Energy
Resources, Inc., an Arkansas corporation (the "Company"), under
the Company's Mortgage and Deed of Trust, dated as of June 15,
1977, with The Bank of New York (successor to United States Trust
Company of New York), as Corporate Trustee (the "Corporate
Trustee"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (successor to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇), 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 Twenty-second Supplemental
Indenture (the "Supplemental Indenture"), dated as of September
1, 2002 (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 September 18, 2002 (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 and the General Corporation Law of the State of
Delaware. We have, with your consent, relied upon opinions of
even date herewith addressed to you (or upon which it is stated
that you may rely) of (i) Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, (ii)
▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional Association, and (iii)
[System Operating Company Counsel] as to the matters covered in
such opinions relating to Arkansas, Mississippi and Louisiana
law. We have reviewed said opinions and believe that they are
satisfactory. We have also reviewed the opinion of ▇▇▇▇▇▇ ▇▇▇▇ &
Priest LLP required by Section 7(d) of the Underwriting
Agreement, and we believe said opinion to be satisfactory.
We have 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 and the Prospectus. 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 a specimen 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 into, and are
expressing no opinion or belief as to, matters relating to titles
to property, franchises or the lien purported to be created by
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, is a
legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except as may
be limited by (i) the laws of the State of Mississippi, where the
property covered thereby is located, affecting the remedies for
the enforcement of the security purported to be provided 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) by 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 statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of the New
Bonds" and "Description of the Bonds," respectively, insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(3) The Bonds are legal, valid and binding obligations of
the Company enforceable in accordance with their terms, except as
may be limited by 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 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.
(4) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(5) The Assignment of Availability Agreement has been duly
authorized, executed and delivered by the Company, Entergy
Arkansas, Inc., Entergy Louisiana, Inc., Entergy Mississippi,
Inc. and Entergy New Orleans, Inc.; the Supplementary Capital
Funds Agreement has been duly authorized, executed and delivered
by the Company and Entergy Corporation.
(6) Appropriate orders have been issued 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 orders are 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, 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.
(7) 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, when it became effective, 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; and, to the best of our knowledge, the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Securities Act.
In passing upon the form of the Registration Statement and
the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the 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 (2) hereof. 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, with your
representatives 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 review of the Registration Statement
and the Prospectus, and such discussions did not disclose to us
any information that gives us reason to believe that the
Registration Statement, at the 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 belief as to (i) the financial statements
or other financial or statistical data included or incorporated
by reference in the Registration Statement or Prospectus or (ii)
the Statements of Eligibility.
With respect to the opinions set forth in paragraphs (1) and
(3) above, we call your attention to the fact that the provisions
of the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
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,
PILLSBURY WINTHROP LLP