execution version
Exhibit B-9(a)
System Energy Resources, Inc.
$284,756,685
Secured Lease Obligation Bonds,
5.129% Series due 2014
PURCHASE AGREEMENT
April 16, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Citigroup Global Markets Inc.
The Royal Bank of Scotland plc
Wedbush ▇▇▇▇▇▇ Securities Inc.
c/oMorgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Each of the undersigned, System Energy Resources, Inc., an
Arkansas corporation (the "Company"), and GG1C Funding
Corporation, a Delaware corporation (the "Funding Corporation"),
hereby confirms its agreement with you, as initial purchasers
(the "Initial Purchasers", which term, when the context permits,
shall also include any initial purchasers substituted as
hereinafter in Section 11 provided), with respect to the proposed
issuance and sale by the Funding Corporation of $284,756,685 in
aggregate principal amount of its Secured Lease Obligation Bonds,
5.129% Series due 2014 (the "Bonds"). The Bonds will be issued
under a Collateral Trust Indenture dated as of May 1, 2004, as
supplemented by Supplemental Indenture No. 1 thereto dated as of
May 1, 2004, among the Funding Corporation, the Company and
Deutsche Bank Trust Company Americas, as trustee (the "Trustee")
(such Collateral Trust Indenture, as so supplemented, the "Trust
Indenture").
The Bonds will be offered and sold without being registered
under the Securities Act of 1933, as amended (the "Securities
Act"), (i) inside the United States only to Qualified
Institutional Buyers (as defined in Rule 144A under the
Securities Act ("Rule 144A")) ("QIBs") in compliance with Rule
144A, (ii) outside the United States only in compliance with
Regulation S under the Securities Act ("Regulation S") and (iii)
to a limited number of Institutional Accredited Investors (as
defined herein). In connection with the offering and resale of
the Bonds, the Company has prepared a preliminary offering
memorandum dated April 14, 2004 (including the documents
incorporated by reference therein as of the date thereof, the
"Preliminary Offering Memorandum") and an offering memorandum
dated the date hereof (including the documents incorporated
therein by reference as of the date hereof, the "Offering
Memorandum"), in each case, setting forth or incorporating by
reference information regarding the Company, the Funding
Corporation and the transactions described herein. The Company
confirms that it has authorized the use of the Preliminary
Offering Memorandum and the Offering Memorandum in connection
with the offering and resale of the Bonds by the Initial
Purchasers in accordance herewith. All references in this
Purchase Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any
document by the Company with the Securities and Exchange
Commission (the "Commission") pursuant to Sections 13, 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date hereof and prior to the
termination of the offering of the Bonds.
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 Funding Corporation shall issue and sell to each of
the Initial Purchasers, and each Initial Purchaser shall purchase
from the Funding Corporation, at the time and place herein
specified, severally and not jointly, the Bonds at a purchase
price of 100% of the principal amount thereof in the principal
amount set forth opposite the name of such Initial Purchaser in
Schedule I attached hereto. The Company is advised by the
Initial Purchasers that the Bonds will be offered on the terms
set forth in the Offering Memorandum as soon as practicable after
this Purchase Agreement is entered into as in the judgment of the
Initial Purchasers is advisable. Concurrently with such
purchase, issuance and sale, the Company will pay, or cause to be
paid, to the Initial Purchasers in immediately available funds a
commission of 0.650% of the principal amount of the Bonds.
Section 2. Description of Bonds
. The Bonds and the Trust Indenture shall have the terms
and provisions described in the Offering Memorandum, provided
that subsequent to the date hereof and prior to the Closing Date
(as defined herein) the form of the Trust Indenture may be
amended by mutual agreement among the Funding Corporation, the
Company and the Initial Purchasers.
Section 3. Representations and Warranties of the Company.
(a) The Company represents and warrants to the several
Initial Purchasers, and covenants and agrees with the several
Initial Purchasers, that:
(i) 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 Offering
Memorandum as conducting and to own and operate the properties
owned and operated by it in such business.
(ii) The Preliminary Offering Memorandum and the Offering
Memorandum have been prepared by the Company for use by the
Initial Purchasers in connection with the offering and resale of
the Bonds. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or
any order asserting that the transactions contemplated by this
Purchase Agreement are subject to the registration requirements
of the Securities Act, has been issued and no proceeding for that
purpose has commenced or is pending or, to the knowledge of the
Company, is contemplated.
(iii) After the time of effectiveness of this Purchase
Agreement and during the time specified in Section 5(b) hereof,
the Company will not amend or supplement the Offering Memorandum
without prior notice to the Initial Purchasers and to Pillsbury
Winthrop LLP ("Counsel for the Initial Purchasers"), or effect
any such amendment or supplement to which Counsel for the Initial
Purchasers shall reasonably object on legal grounds in writing.
(iv) The Preliminary Offering Memorandum, as of its date, did not
and the Offering Memorandum, as of the date hereof, does not, and
at the Closing Date, 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, except that this representation
and warranty shall not apply to statements or omissions made in
reliance upon and in conformity with written information
furnished to the Company by any Initial Purchaser or on its
behalf specifically for use in connection with the preparation of
the Preliminary Offering Memorandum or the Offering Memorandum,
as it may be then amended or supplemented. The documents
incorporated or deemed to be incorporated by reference into the
Preliminary Offering Memorandum or the Offering Memorandum, on
the date filed with the Commission pursuant to the Exchange Act,
fully complied or will 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,
and no such documents incorporated or deemed to be incorporated
by reference into the Preliminary Offering Memorandum or the
Offering Memorandum, on such dates, contained or will contain,
respectively, 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.
(v) Each of (A) the Participation Agreements and the Leases
(each, as defined in the Offering Memorandum), (B) the Purchase
Documents, the Plant Agreements, the Ground Leases and the
Assignment and Assumption Agreements (each, as defined in the
Participation Agreements), (C) the Trust Indenture, (D) this
Purchase Agreement and (E) the Refunding Agreements Nos. 1-B and
2-B dated as of April 1, 2004, among the Funding Corporation,
GG1B Funding Corporation, the Company, the Owner Participant
named therein, Wachovia Bank, National Association, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Deutsche Bank Trust Company Americas and ▇▇▇▇▇▇▇ ▇▇▇▇
(the "Refunding Agreements") (the documents described in clauses
(A) through (E) above, as they each may be amended or
supplemented as of the Closing Date, being collectively referred
to herein as the "Transaction Documents") has been or, as of the
Closing Date, will be, duly authorized, executed and delivered by
the Company.
(vi) The issuance and sale of the Bonds and the fulfillment of
the terms of this Purchase Agreement will not result in a breach
of any of the terms or provisions of, or constitute a default
under, the Trust Indenture or any indenture or other agreement or
instrument to which the Company is now a party.
(vii) Except as set forth or contemplated in the Offering
Memorandum, as it may be then amended or supplemented, the
Company possesses adequate franchises, licenses, permits, and
other rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of others
that could have a material adverse effect on the Company.
(viii) The Company maintains (x) systems of internal controls
and processes sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general
or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted
only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and
(y) disclosure controls and procedures (as defined in Rule 13a-
15(e) promulgated under the Exchange Act).
(ix) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act ("Regulation D"))
has directly, or through any agent (provided that no
representation is made as to the Initial Purchasers or any person
acting on behalf of the Initial Purchasers) (x) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect
of any security (as defined in the Securities Act) that is or
could be integrated with the offering and sale of the Bonds in a
manner that would require the registration of the Bonds under the
Securities Act, (y) engaged in any form of general solicitation
or general advertising (within the meaning of Rule 502(c) of
Regulation D) in connection with the offering of the Bonds, or
acted in any manner involving a public offering of the Bonds
within the meaning of Section 4(2) of the Securities Act or (z)
engaged in any directed selling efforts (as defined in Regulation
S) with respect to the Bonds.
(x) The Bonds are eligible for resale pursuant to Rule 144A, and
at the Closing Date, such Bonds will not be of the same class
(within the meaning of Rule 144A(d)(3) under the Securities Act)
as securities listed on a national securities exchange registered
under Section 6 of the Exchange Act or quoted in a United States
automated inter-dealer quotation system.
(xi) Assuming the accuracy of the representations of the Initial
Purchasers contained herein, and compliance by the Initial
Purchasers with their agreements hereunder, the offer, sale and
delivery of the Bonds to the Initial Purchasers and the initial
resales of the Bonds by the Initial Purchasers, each in the
manner contemplated by this Purchase Agreement, do not require
registration of the Bonds under the Securities Act or
qualification of the Trust Indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(xii) Except as permitted by the Securities Act, the Company
has not distributed and, prior to the later to occur of the
Closing Date and completion of the distribution of the Bonds,
will not distribute any offering material in connection with the
offering and sale of the Bonds other than the Preliminary
Offering Memorandum and the Offering Memorandum.
(xiii) It is not necessary for the Funding Corporation to
register as an investment company pursuant to the Investment
Company Act of 1940 in order to participate in the transactions
contemplated by the Offering Memorandum.
(b) The Funding Corporation represents and warrants to the
several Initial Purchasers, and covenants and agrees with the
Initial Purchasers, that:
(i) Each of the Participation Agreements, the Refunding
Agreements, this Purchase Agreement, the Trust Indenture and the
Bonds has been or, as of the Closing Date, will be duly
authorized, executed and delivered by the Funding Corporation.
(ii) Neither the Funding Corporation nor any affiliate (as
defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")) has directly, or through any agent (provided
that no representation is made as to the Initial Purchasers or
any person acting on behalf of the Initial Purchasers) (x) sold,
offered for sale, solicited offers to buy or otherwise negotiated
in respect of any security (as defined in the Securities Act)
that is or could be integrated with the offering and sale of the
Bonds in a manner that would require the registration of the
Bonds under the Securities Act, (y) engaged in any form of
general solicitation or general advertising (within the meaning
of Rule 502(c) of Regulation D) in connection with the offering
of the Bonds, or acted in any manner involving a public offering
of the Bonds within the meaning of Section 4(2) of the Securities
Act or (z) engaged in any directed selling efforts (as defined in
Regulation S) with respect to the Bonds.
(iii) Except as permitted by the Securities Act, the Funding
Corporation has not distributed and, prior to the later to occur
of the Closing Date and completion of the distribution of the
Bonds, will not distribute any offering material in connection
with the offering and sale of the Bonds other than the
Preliminary Offering Memorandum and the Offering Memorandum.
Section 4. Time and Place of Closing; Delivery of the Bonds
and Payment Therefor; Resale by Initial Purchasers.
(a) Delivery of the Bonds and payment of the purchase price
therefor by wire transfer of immediately available funds to the
Funding Corporation shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇ &
Priest LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M.,
New York time, on May 11, 2004 or at such other time on the same
or such other day as shall be agreed upon by the Company and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets
Inc., as representatives of the Initial Purchasers. The hour and
date of such delivery and payment are herein called the "Closing
Date."
The Bonds shall be delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and Citigroup Global Markets Inc., as
representatives of the Initial Purchasers, for the account of the
Initial Purchasers, in book-entry only form through the
facilities of The Depository Trust Company ("DTC") in New York,
New York. The certificates for the Bonds shall be in the form of
two typewritten global bonds (one such bond representing the
Bonds resold in reliance on Rule 144A and the other bond
representing the Bonds resold in reliance on Regulation S) in
fully registered form, in the aggregate principal amount of the
Bonds, and registered in the name of Cede & Co., as nominee of
DTC. The Company agrees to make the Bonds available to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets Inc. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and
Citigroup Global Markets Inc. and the Company, or at such other
time and/or date as may be agreed upon between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated and Citigroup Global Markets Inc. and the
Company.
Notwithstanding the foregoing, any Bonds sold to
Institutional Accredited Investors pursuant to Section 4(b)(iii)
shall be issued in definitive, fully registered form and shall
bear the legend relating thereto set forth under "Transfer
Restrictions" in the Offering Memorandum, but shall be paid for
in the same manner as any Bonds to be purchased by the Initial
Purchasers hereunder and to be offered and sold by them in
reliance on Rule 144A.
(b) With respect to the initial resale of the Bonds, each
Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Company and the Funding
Corporation that:
(i) it is a QIB and is purchasing the Bonds pursuant to Section
4(2) of the Securities Act;
(ii) it has not offered, sold or delivered, and will not offer,
sell or deliver, any Bond (x) in the United States or to, or for
the account or benefit of U.S. persons, except as set forth in
clause (z) hereof or to persons whom the Initial Purchasers
reasonably believe to be QIBs in compliance with Rule 144A or, if
any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when
it reasonably believes that each such account is a QIB to whom
notice has been given that such sale or delivery is being made in
reliance on Rule 144A and that has agreed to the transfer
restrictions relating to the Bonds contained in the Offering
Memorandum, (y) except to persons whom it reasonably believes, at
the time any buy order for Bonds was or is originated, were or
are outside the United States and were or are not U.S. persons
(and were or are not purchasing for the account or benefit of a
U.S. person) within the meaning of Regulation S or (z) except to
a limited number of Institutional Accredited Investors in
accordance with subsection (iii);
(iii) it may offer and sell the Offered Securities in
definitive, fully registered form to a limited number of
institutions, each of which is reasonably believed by such
Initial Purchaser to be an "accredited investor" within the
meaning of Rule 501(a)(1), (2) (3) or (7) under the Securities
Act or an entity in which all of the equity owners are accredited
investors within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act (each, an "Institutional Accredited
Investor"); provided that each such Institutional Accredited
Investor executes and delivers to the Initial Purchasers and the
Company, prior to the consummation of any sale of Bonds to such
Institutional Accredited Investor, an accredited investor's
letter in substantially the form attached to the Offering
Memorandum as Annex A;
(iv) neither it nor any of its affiliates nor any person acting
on its or their behalf (x) has made or will make offers or sales
of the Bonds by means of any form of general solicitation or
general advertising (within the meaning of Rule 502(c) of
Regulation D) or in any manner involving a public offering
(within the meaning of Section 4(2) of the Securities Act) or (y)
has engaged or will engage in any directed selling efforts (as
defined in Regulation S) with respect to the Bonds;
(v) it will comply with the offering restrictions required by
Regulation S and will comply with all applicable laws and
regulations in each jurisdiction in which it purchases, offers,
sells or delivers the Bonds or distributes or cause to be
distributed the Offering Memorandum; and
(vi) (x) it and each of its affiliates have not offered or sold
and, prior to the date that is six months after the Closing Date,
will not offer or sell any Bonds to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 (as
amended); (y) it and each of its affiliates have only
communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning
of Section 21 of the Financial Services Markets Act 2000 (the
"FSMA")) received by it in connection with the issue or sale of
any Bonds in circumstances in which Section 21(1) of the FSMA
does not apply to the Company; and (z) it and each of its
affiliates have complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Bonds in, from or otherwise involving the United
Kingdom.
The Initial Purchasers acknowledge that the Company and the
Funding Corporation and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Section 6 hereof,
counsel to the Company and Counsel to the Initial Purchasers will
rely upon the accuracy and truth of the foregoing representations
and the Initial Purchasers hereby consent to such reliance.
Section 5. Covenants of the Funding Corporation and the
Company.
Each of the Funding Corporation and the Company covenants
and agrees with each Initial Purchaser that:
(a) The Company will prepare the Offering Memorandum in a form
approved by the Initial Purchasers and will deliver to the
Initial Purchasers as many copies of the Offering Memorandum (and
any amendments or supplements thereto) as the Initial Purchasers
may reasonably request.
(b) At any time prior to the completion of the initial resales
of the Bonds by the Initial Purchasers to purchasers, if any
event relating to or affecting the Company or the Funding
Corporation, or of which the Company shall be advised by the
Initial Purchasers in writing, shall occur which in the Company's
opinion should be set forth in a supplement or amendment to the
Offering Memorandum in order to make the Offering Memorandum not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Bonds, the Company will amend or
supplement, or cause to be amended or supplemented, the Offering
Memorandum and furnish to the Initial Purchasers a reasonable
number of copies of a supplement or supplements or an amendment
or amendments to the Offering Memorandum, so that, as
supplemented or amended, the Offering Memorandum 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 Offering Memorandum is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Initial Purchasers (in
which case the Initial Purchasers shall assume the expense of
preparing any such supplement or amendment), the expenses of
complying with this Section 5(b) shall be borne by the Company
until the expiration of nine months from the time of
effectiveness of this Purchase Agreement, and such expenses shall
be borne by the Initial Purchasers thereafter.
(c) At any time within six months of the date hereof, the
Company and the Funding Corporation 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 Initial Purchasers may
reasonably designate, provided that neither the Funding
Corporation nor the Company shall 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 it to be unduly burdensome.
(d) The Company will, except as herein provided, pay the
reasonable fees and expenses of the Counsel for the Initial
Purchasers and all fees, expenses and taxes (except transfer
taxes) in connection with (i) the preparation of the Preliminary
Offering Memorandum, the Offering Memorandum and any amendments
or supplements thereto, (ii) the printing, issuance and delivery
of the Bonds and the preparation, execution, printing and
recordation of the Trust Indenture, including the fees and
expenses of the Trustee, (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 Initial Purchasers of reasonable
quantities of copies of the preliminary (and any supplemental)
blue sky survey, and the Offering Memorandum and any amendment or
supplement thereto, except as otherwise provided in paragraph (b)
of this Section 5, (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 of the expenses of the Initial Purchasers, except that,
if this Purchase Agreement shall be terminated in accordance with
the provisions of Section 6, 7 or 10 hereof, the Company will
reimburse the Initial Purchasers for reasonable out-of-pocket
expenses in an aggregate amount not exceeding $15,000, incurred
in contemplation of the performance of this Purchase Agreement.
Neither the Company nor the Funding Corporation shall in any
event be liable to the Initial Purchasers for damages on account
of loss of anticipated profits.
(e) The Company will not sell any debt securities without the
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global
Markets Inc., as representatives of the Initial Purchasers, for a
period beginning on the date hereof and ending on the Closing
Date.
(f) As long as the Bonds are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will furnish to holders of the Bonds
and prospective purchasers of the Bonds designated by such
holders, upon the request of such holders or prospective
purchasers, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act, unless such information
is contained, at the time of such request, in documents filed by
the Company with the Commission pursuant to Sections 13 or 15(d)
of the Exchange Act.
(g) The Company and the Funding Corporation will not, and will
ensure that any of their respective affiliates (as defined in
Rule 501(b) of Regulation D) do not, directly or through any
agent, (x) solicit any offer to buy or offer to sell the Bonds by
means of any form of general solicitation or general advertising
(as those terms are used in Rule 502(c) of Regulation D) or in
any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (y) engage in any directed
selling efforts (as defined in Regulation S) with respect to the
Bonds resold pursuant to Regulation S or otherwise violate the
offering restrictions of Regulation S with respect to those Bonds
sold pursuant thereto.
(h) The Company and the Funding Corporation will refrain, and
cause their respective affiliates (as defined in Rule 501(b) of
Regulation D) to refrain, from selling, offering for sale or
soliciting offers to buy or otherwise negotiating in respect of
any security (as defined in the Securities Act) in a transaction
that could be integrated with the sale of the Bonds in a manner
that would require the registration of the Bonds under the
Securities Act.
(i) For a period of two years after the Closing Date, the
Funding Corporation will not, and will not permit any of its
affiliates (as defined in Rule 501(b) of Regulation D) to,
purchase, agree to purchase or otherwise acquire any of the Bonds
which constitute "restricted securities" under Rule 144 under the
Securities Act unless, immediately upon such purchase, the
Funding Corporation or such affiliate submits such Bonds to the
Trustee for cancellation.
(j) The Company and the Funding Corporation will not take,
directly or indirectly, any action designed to, or that could
reasonably be expected to, cause or result in the stabilization
or manipulation of the price of the Bonds.
Section 6. Conditions of the Initial Purchasers' Obligations.
The obligations of the several Initial Purchasers 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 Funding Corporation
and the Company and of any certificates furnished by the Funding
Corporation or the Company on the Closing Date and to the
following conditions:
(a) At the Closing Date, there shall have been issued and there
shall be in full force and effect, to the extent legally required
for the issuance and sale of the Bonds, an order or 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
Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have
received from ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional
Association; ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP; and Friday, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, LLP, each as counsel to the Company; and ▇▇▇▇▇▇ ▇▇▇▇ &
Priest LLP, as counsel to the Funding Corporation, 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
Initial Purchasers with the approval of Counsel for the Initial
Purchasers, and (ii) if the Offering Memorandum shall be
supplemented after being furnished to the Initial Purchasers for
use in offering the Bonds and prior to the Closing Date, with
changes therein to reflect such supplementation.
(c) At the Closing Date, the Initial Purchasers shall have
received from Counsel for the Initial Purchasers 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 Offering Memorandum prior
to the Closing Date.
(d) On or prior to the date this Purchase Agreement became
effective, the Initial Purchasers shall have received from
Deloitte & Touche LLP, the Company's independent certified public
accountants (the "Accountants"), a letter dated the Closing Date
and addressed to the Initial Purchasers to the effect that (i)
they are independent certified public accountants with respect to
the Company under Rule 101 of the American Institute of Certified
Public Accountants (the "AICPA") Code of Professional Conduct and
its interpretations and rulings; (ii) in their opinion, the
financial statements and financial statement schedules audited by
them and incorporated by reference in the Offering Memorandum
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the applicable
published rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the AICPA for a review of
interim financial information as described in SAS No. 100,
Interim Financial Information, on the latest unaudited financial
statements, if any, incorporated by reference in the Offering
Memorandum, 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, 2003 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
Initial Purchasers), 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)
incorporated by reference in the Offering Memorandum do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder; (B) any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally accepted
accounting principles; (C) at the date of the latest available
balance sheet read by the Accountants, and at a subsequent
specified date not more than five days prior to the date of the
letter, there was any change in the capital stock of the Company,
increase in long-term debt of the Company, or decrease in its net
assets or shareholder's equity, in each case as compared with
amounts shown in the most recent balance sheet incorporated by
reference in the Offering Memorandum, except in all instances for
changes, increases or decreases which the Offering Memorandum
discloses have occurred or may occur, for declarations of
dividends, for the amortization of premium or discount on long-
term debt, for any increases in long-term debt in respect of
previously issued pollution control, solid waste disposal or
industrial development revenue bonds, or for changes, increases
or decreases as set forth in such letter, identifying the same
and specifying the amount thereof; and (D) for the period from
the closing date of the most recent income statement incorporated
by reference in the Offering Memorandum to the closing date of
the latest available income statement read by the Accountants,
there were any decreases, as compared to the corresponding period
in the preceding year, in operating revenues, operating income or
net income, except in all instances for decreases which the
Offering Memorandum discloses have occurred or may occur or
decreases as set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they have
compared specific dollar amounts, percentages of revenues and
earnings and other financial information pertaining to the
Company set forth in the Offering Memorandum, and set forth in
documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act, in each case, to the extent that such
amounts, numbers, percentages and information may be derived from
the general accounting records of the Company, and excluding any
questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings,
inquiries and other appropriate procedures (which procedures do
not constitute an examination in accordance with generally
accepted auditing standards) set forth in the letter, and found
them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have
received (i) certificates of the Funding Corporation and the
Company, respectively, signed by the President, a Vice President,
the Treasurer or an Assistant Treasurer of each of the Funding
Corporation and the Company, respectively, to the effect that (A)
the representations and warranties of the Funding Corporation and
the Company, as the case may be, contained herein are true and
correct, and (B) each of the Funding Corporation and the Company
has performed and complied with all agreements and conditions in
this Purchase Agreement on its part to be performed or complied
with at or prior to the Closing Date, (ii) a certificate, dated
the Closing Date and signed by the President or a Vice President
of the Company that since the most recent date as of which
information is given in the Offering Memorandum, 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, such Offering Memorandum, as it may
then be amended or supplemented, and (iii) 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 since the most recent date as of
which information is given in the Offering Memorandum, as it may
then be amended or supplemented, there has not been any material
adverse change in the business, property or financial condition
of Entergy and its subsidiaries considered as a whole.
(f) At the Closing Date, the Initial Purchasers shall have
received duly executed counterparts of the Trust Indenture.
(g) At the Closing Date, the Initial Purchasers 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 6(d) hereof.
(h) 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 Lease, the Lease
Indenture (as defined in the Offering Memorandum) or the Trust
Indenture shall have occurred.
(i) On or prior to the Closing Date, the Initial Purchasers
shall have received from the Company evidence reasonably
satisfactory to the Initial Purchasers that the Bonds have
received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors
Service, Inc. and BBB- or better from Standard & Poor's Ratings
Services.
(j) 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 Bonds or the
Company's outstanding first mortgage bonds in any respect, and no
rating agency shall have publicly announced that it has placed
under surveillance or review, with possible negative
implications, its rating (or expected rating) of the Bonds or the
Company's outstanding first mortgage bonds.
(k) Between the date hereof and the Closing Date, no event shall
have occurred with respect to or otherwise affecting the Company,
or the Entergy System as a whole as it affects the Company,
which, in the reasonable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and Citigroup Global Markets Inc., as
representatives of the Initial Purchasers, materially impairs the
investment quality of the Bonds.
(l) The Bonds shall, upon delivery to the Initial Purchasers in
accordance with this Purchase Agreement, be secured by notes in
accordance with the Trust Indenture; the conditions precedent to
a refunding, as set forth in the Participation Agreement
(including, without limitation, Sections 2(d) and 11(c) thereof)
and the Refunding Agreements (including, without limitation,
Section 5 thereof), shall have been met prior to the issuance and
delivery of such notes, with none of such conditions precedent
having been waived by the Funding Corporation, the Company or the
Trustee without the consent of the Initial Purchasers.
(m) The opinions of counsel required to be delivered by the
first two sentences of Section 11(c)(6) of the Participation
Agreement as a condition precedent to a refunding shall also be
addressed and delivered to the Initial Purchasers, except for the
opinions of Special Counsel, Special NRC Counsel and Special
Mississippi Counsel to the Owner Participants and the opinion of
the Lessee's Special Louisiana Counsel, all as described and/or
defined in the Participation Agreement, it being understood that
such opinions of counsel may be confirmations by counsel of
opinions previously delivered by such counsel in connection with
the transactions described in or contemplated by the
Participation Agreement, provided that such confirmations of
opinions shall be dated the Closing Date, shall confirm the
previously delivered opinions as of the Closing Date, and shall
either be addressed to the Initial Purchasers or shall state that
the Initial Purchasers may rely upon the previously delivered
opinions, as so confirmed, as if addressed to them.
(n) The opinions of counsel required to be delivered to the
Trustee pursuant to Section 2.04(e) of the Trust Indenture shall
also be addressed and delivered to the Initial Purchasers.
(o) All legal matters in connection with the issuance and sale
of the Bonds shall be satisfactory in form and substance to
Counsel for the Initial Purchasers.
(p) The Funding Corporation and the Company shall furnish the
Initial Purchasers 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 6 shall
not have been fulfilled, this Purchase Agreement may be
terminated by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup
Global Markets Inc., on behalf of the Initial Purchasers, 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 (d) of Section 5 and in Section
9.
Section 7. Condition of the Obligations of the Funding
Corporation and the Company.
The obligations of the Funding Corporation and the Company
hereunder shall be subject to the condition that, at the Closing
Date, there shall have been issued and there shall be in full
force and effect, to the extent legally required for the issuance
and sale of the Bonds, an order or 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
Purchase Agreement.
In case the condition specified in this Section 7 shall not
have been fulfilled, this Purchase Agreement may be terminated by
the Company upon notice thereof to the Initial Purchasers. Any
such termination shall be without liability of any party to any
other party, except as otherwise provided in paragraph (d) of
Section 5 and in Section 9.
Section 8. Indemnification.
(a) The Company shall indemnify, defend and hold harmless the
Initial Purchasers and each person who controls the Initial
Purchasers 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 Initial Purchaser or any or all of them may become
subject under the Exchange Act or any other statute or common law
and shall reimburse the Initial Purchasers 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 Preliminary Offering Memorandum or the
Offering Memorandum, 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; 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 Initial Purchaser specifically for use in connection with
the preparation of the Preliminary Offering Memorandum or the
Offering Memorandum or any amendment or supplement thereto. No
indemnity by the Company to the Initial Purchasers and any person
who controls the Initial Purchasers within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act
hereunder shall apply in respect of the Preliminary Offering
Memorandum or the Offering Memorandum furnished by an Initial
Purchaser to a person to whom any of the Bonds are sold, insofar
as such indemnity relates to any untrue or misleading statement
or omission made in the Preliminary Offering Memorandum or the
Offering Memorandum but eliminated or remedied prior to the
consummation of such sale in any amendment or supplement thereto,
respectively, unless a copy of the Offering Memorandum (excluding
documents incorporated by reference therein) (in the case of such
a statement or omission made in the Preliminary Offering
Memorandum) or such amendment or supplement (excluding documents
incorporated by reference in the Offering Memorandum) (in the
case of such a statement or omission made in the Offering
Memorandum) is furnished by such Initial Purchaser to such person
on or before the confirmation of such sale.
(b) Each Initial Purchaser 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 Exchange 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 Preliminary Offering Memorandum or
the Offering Memorandum, 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, but only if such statement or omission
were made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Initial
Purchaser specifically for use in connection with the preparation
of the Preliminary Offering Memorandum or the Offering Memorandum
or any amendment or supplement thereto.
(c) In case any action shall be brought, based upon the
Preliminary Offering Memorandum or the Offering Memorandum
(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 8 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 Initial Purchasers 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 the Initial Purchasers
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 Initial
Purchasers on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (after
deducting the discounts and commissions received by the Initial
Purchasers in respect of the offering but before deducting
expenses) to the Company bear to the total discounts and
commissions received by the Initial Purchasers from the Company
under this Purchase Agreement. The relative fault of the Company
on the one hand and the Initial Purchasers 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 Initial
Purchasers and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this
Section 8(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 8(d), no
Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Bonds
purchased by such Initial Purchaser and distributed pursuant to
the terms hereof exceeds the amount of any damages which such
Initial Purchaser 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 obligations of the
Initial Purchasers to contribute pursuant to this Section 8(d)
are several in proportion to their respective purchase
obligations and not joint.
Section 9. Survival of Certain Representations and
Obligations.
Any other provision of this Purchase Agreement to the
contrary notwithstanding, (a) the indemnity and contribution
agreements contained in Section 8 of, and the representations and
warranties and other agreements of the Funding Corporation and
the Company contained in, this Purchase Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by the Initial Purchasers or on their behalf
or by or on behalf of the Funding Corporation or the Company or
its directors or officers, or any of the other persons referred
to in Section 8 hereof and (ii) acceptance of and payment for the
Bonds and (b) the indemnity and contribution agreements contained
in Section 8 shall remain operative and in full force and effect
regardless of any termination of this Purchase Agreement.
Section 10. Termination.
This Purchase Agreement shall be subject to termination by
written notice from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and
Citigroup Global Markets Inc., as representatives of the Initial
Purchasers, to the Company and the Funding Corporation, if (a)
after the execution and delivery of this Purchase 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 clearing services
in the United States shall have occurred, (iv) there shall have
occurred any material outbreak or escalation of hostilities or
any calamity or crisis that, in the judgment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated and Citigroup Global Markets Inc., as
representatives of the Initial Purchasers, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup
Global Markets Inc., as representatives of the Initial
Purchasers, impracticable to market the Bonds. This Purchase
Agreement shall also be subject to termination, upon notice by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets
Inc., as representatives of the Initial Purchasers, as provided
above, if, in the judgment of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
and Citigroup Global Markets Inc., as representatives of the
Initial Purchasers, the subject matter of any amendment or
supplement (prepared by the Company) to the Offering Memorandum
issued after the effectiveness of this Purchase Agreement by the
Company shall have materially impaired the marketability of the
Bonds. Any termination hereof, pursuant to this Section 10,
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (d) of Section 5 and in
Section 9.
Section 11. Default of Initial Purchasers.
If any Initial Purchaser 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 Initial Purchaser agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal
amount of the Bonds, the other Initial Purchasers shall be
obligated to purchase the Bonds that such defaulting Initial
Purchaser agreed but failed or refused to purchase; provided that
in no event shall the principal amount of Bonds that such Initial
Purchaser 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 Initial Purchaser. If such Initial Purchaser
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 Initial Purchasers 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 Initial Purchaser 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 Initial Purchasers 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 Initial Purchaser had agreed to purchase, or that
portion thereof that the remaining Initial Purchasers 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 Initial Purchasers within 24 hours (excluding any
Saturday, Sunday, or legal holiday) of the time when the Company
learns of the failure or refusal of any Initial Purchaser 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 Purchase
Agreement. In the absence of such election by the Company, this
Purchase Agreement will, unless otherwise agreed by the Company
and the non-defaulting Initial Purchasers, terminate without
liability on the part of any non-defaulting party except as
otherwise provided in paragraph (d) of Section 5 and in Section
9. Any action taken under this paragraph shall not relieve any
defaulting Initial Purchaser from liability in respect of its
default under this Purchase Agreement.
Section 12. Miscellaneous.
THE RIGHTS AND DUTIES OF THE PARTIES TO THIS PURCHASE
AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
This Purchase Agreement shall become effective when a fully
executed copy hereof is delivered to the Initial Purchasers by
the Company and the Funding Corporation. This Purchase 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 Purchase Agreement shall inure
to the benefit of each of the Company, the Funding Corporation,
the Initial Purchasers and, with respect to the provisions of
Section 8, each director, officer and other persons referred to
in Section 8, and their respective successors. Should any part
of this Purchase 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 Purchase 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 Purchase Agreement. The
term "successor" as used in this Purchase Agreement shall not
include any purchaser, as such purchaser, of any Bonds from the
Initial Purchasers.
Section 13. Notices.
All communications hereunder shall be in writing and, if to
the Initial Purchasers, shall be mailed or delivered to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets Inc., as
representatives of the Initial Purchasers, at the addresses set
forth at the beginning of this Purchase Agreement to the
attention of Financing Services Group in the case of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Office of General Counsel (fax:
(▇▇▇) ▇▇▇-▇▇▇▇) in the case of Citigroup Global Markets Inc., or,
if to the Company, shall be mailed or delivered to it at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer, or if to the Funding Corporation, shall be mailed or
delivered to it at One Commerce Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Very truly yours,
SYSTEM ENERGY RESOURCES, INC.
By: ____________________________
Name:
Title:
GG1C FUNDING CORPORATION
By: ____________________________
Name:
Title:
Accepted as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
THE ROYAL BANK OF SCOTLAND PLC
WEDBUSH ▇▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: ____________________________
Name:
Title:
By: Citigroup Global Markets Inc.
By: ____________________________
Name:
Title:
SCHEDULE I
System Energy Resources, Inc.
$284,756,685 Secured Lease Obligation Bonds,
5.129% Series due 2014
Name of Initial Purchasers Principal Amount of Bonds
Morgan ▇▇▇▇▇▇▇ & Co. Incorporated $162,311,310
Citigroup Global Markets Inc. 105,359,973
The Royal Bank of Scotland plc 8,542,701
Wedbush ▇▇▇▇▇▇ Securities Inc. 8,542,701
TOTAL $284,756,685
EXHIBIT A
[Letterhead of ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Citigroup Global Markets Inc.
The Royal Bank of Scotland plc
Wedbush ▇▇▇▇▇▇ Securities Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets 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 Purchase
Agreement, effective April 16, 2004 (the "Purchase Agreement"),
among GG1C Funding Corporation, a Delaware corporation (the
"Funding Corporation"), the Company and you, of $284,756,685
aggregate principal amount of the Funding Corporation's Secured
Lease Obligation Bonds, 5.129% Series due 2014 (the "Bonds").
The Bonds are being issued pursuant to the Collateral Trust
Indenture dated as of May 1, 2004, as amended by Supplemental
Indenture No. 1 thereto, dated as of May 1, 2004 (the Collateral
Trust Indenture, as so amended, being hereinafter referred to as
the "Trust Indenture"), among the Funding Corporation, the
Company and Deutsche Bank Trust Company Americas, as trustee (the
"Trustee"). 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 Purchase
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,
dated April 28, 1989, and the Company's By-Laws, effective as of
July 6, 1998; (b) the Purchase Agreement; (c) the Trust
Indenture; (d) the Offering Memorandum; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by the Funding Corporation and the
execution and delivery by the Company of the Trust Indenture and
the Purchase Agreement; and (f) the proceedings before and the
order or orders issued by the Commission under the Holding
Company Act, relating to the issuance and sale of the Bonds by
the Funding Corporation and the execution and delivery by the
Company of the Trust Indenture and the Purchase 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. As to such
matters of fact material to this opinion, we have also relied
upon representations and certifications of the Company, Funding
Corporation and you in such documents and in the Purchase
Agreement, and upon statements in the Offering Memorandum. 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.
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 Offering
Memorandum 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 Trust Indenture has been duly authorized by all
necessary corporate action on the part of the Company, has been
duly executed and delivered by the Company, and is a legal, valid
and binding instrument of the Company enforceable against the
Company in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization, or other similar laws affecting
enforcement of creditors' rights or remedies for the enforcement
of the security interest provided by the Trust Indenture and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(3) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(4) The statements made in the Offering Memorandum under the
captions "Summary of the Offering", "Security and Source of
Payment for the Bonds", "Description of the Bonds and the
Indenture", "Description of the Lease Indentures", "Description
of the Leases" and "Other Agreements", insofar as such statements
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(5) The execution, delivery and performance by the Company of
the Purchase Agreement and the Trust Indenture and the
consummation of the transactions contemplated thereby (a) will
not violate any provision of the Company's Amended and Restated
Articles of Incorporation, dated April 28, 1989, or By-laws,
effective as of July 6, 1998, (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 (except as contemplated by the Trust Indenture) 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, and (2) in connection with the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station).
(6) Except as to the financial statements and other financial or
statistical data included or incorporated by reference therein,
upon which we do not express an opinion, the documents or
portions thereof filed with the Commission by the Company
pursuant to the Exchange Act, and incorporated or deemed to be
incorporated by reference in the Offering Memorandum, on the
respective dates 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.
(7) An appropriate order or orders have been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds; to the best of our knowledge, said order
or orders are in full force and effect; no further approval,
authorization, consent or other order of any governmental body
including without limitation the Nuclear Regulatory Commission
(other than 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 Funding
Corporation of the Bonds to you pursuant to the Purchase
Agreement or the execution and delivery of the Trust Indenture by
the Company; 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
Trust Indenture and the Purchase Agreement.
(8) 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 Offering Memorandum 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 disclosed in the Offering Memorandum
which are not disclosed and properly described therein as
required; the descriptions in the Offering Memorandum of
statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information
required to be shown. Except as disclosed in the Offering
Memorandum, 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 Purchase Agreement.
(9) Assuming that (i) the representations and warranties of each
of the Company, the Funding Corporation and you set forth in
Sections 3(a)(ix) and (x), 3(b)(ii) and Section 4(b),
respectively, of the Purchase Agreement are accurate and the
agreements contained therein have been duly complied with, (ii)
the Company and the Funding Corporation will duly perform all of
the covenants and agreements set forth in Sections 5(g), (h),
(i), (j) and (k) of the Purchase Agreement and (iii) you have
complied with the offering and transfer procedures and
restrictions described in the Offering Memorandum, no
registration of the Bonds under the Securities Act or
qualification of the Trust Indenture under the Trust Indenture
Act is required in connection with the offer and sale of the
Bonds by the Funding Corporation and the offer, initial resale
and delivery of the Bonds by you in the manner contemplated by
the Purchase Agreement and the Offering Memorandum (it being
understood that we do not express any opinion concerning any sale
of the Bonds subsequent to the initial resales thereof by you).
In connection with the preparation by the Company of the
Offering Memorandum, we have had discussions with certain of the
officers, employees, and representatives of the Company and
Entergy Services, Inc., with other counsel for the Company, and
with the independent certified public accountants of the Company
who audited certain of the financial statements incorporated by
reference in the Offering Memorandum. Our examination of the
Offering Memorandum and the above-mentioned discussions did not
disclose to us any information which gives us reason to believe
that the Offering Memorandum, as of its date and at the date
hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to (i) the financial
statements or other financial or statistical data included or
incorporated by reference in the Offering Memorandum or (ii) the
information contained in the Offering Memorandum under the
caption "Description of the Bonds and the Indenture - Book-Entry
Securities."
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. This opinion is
limited to the laws of the States of Mississippi, Arkansas and
New York and the federal laws of the United States of America.
We have relied upon the below-named opinions of counsel to the
extent that such opinions state an opinion with regard to matters
covered by this opinion. 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 of Friday, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, LLP of Little Rock, Arkansas, and in the case of New
York law, upon the opinion of even date herewith addressed to you
of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP.
With respect to the opinion set forth in paragraph 2 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 Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
The opinion set forth above is solely for the benefit of the
addressees in connection with the Purchase Agreement and the
transactions contemplated thereunder and it may not be relied
upon in any manner by any other person 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 Purchase Agreement.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇▇ CHILD & ▇▇▇▇▇▇▇
Professional Association
EXHIBIT B
[Letterhead of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Citigroup Global Markets Inc.
The Royal Bank of Scotland plc
Wedbush ▇▇▇▇▇▇ Securities Inc.
c/oMorgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets 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 Purchase Agreement, effective April 16, 2004
(the "Purchase Agreement"), among GG1C Funding Corporation, a
Delaware corporation (the "Funding Corporation"), the Company and
you, of $284,756,685 aggregate principal amount of the Funding
Corporation's Secured Lease Obligation Bonds, 5.129% Series due
2014 (the "Bonds"). The Bonds are being issued pursuant to the
Collateral Trust Indenture, dated as of May 1, 2004, as amended
by Supplemental Indenture No. 1, dated as of May 1, 2004 (the
Collateral Trust Indenture, as so amended, being hereinafter
referred to as the "Trust Indenture"), among the Funding
Corporation, the Company and Deutsche Bank Trust Company
Americas, as trustee (the "Trustee"). 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 Purchase 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,
dated April 28, 1989, and the Company's By-Laws, effective as of
July 6, 1998; (b) the Purchase Agreement; (c) the Trust
Indenture; (d) the Offering Memorandum; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by the Funding Corporation, and
the execution and delivery by the Company of the Trust Indenture
and the Purchase Agreement; and (f) the proceedings before and
the order or orders entered by the Commission under the Holding
Company Act, relating to the issuance and sale of the Bonds by
the Funding Corporation and the execution and delivery by the
Company of the Trust Indenture and the Purchase 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. As to such
matters of fact material to this opinion, we have also relied
upon representations and certifications of the Company, Funding
Corporation and you in such documents and in the Purchase
Agreement, and upon statements in the Offering Memorandum. 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.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Trust Indenture has been duly authorized by all
necessary corporate action on the part of the Company, has been
duly executed and delivered by the Company, and is a legal, valid
and binding instrument of the Company enforceable against the
Company in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights or remedies for the enforcement
of the security interest provided by the Trust Indenture and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(2) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(3) The execution, delivery and performance by the Company of
the Purchase Agreement and the Trust Indenture and the
consummation of the transactions contemplated thereby (a) will
not violate any provision of the Company's Amended and Restated
Articles of Incorporation, dated April 28, 1989, or By-laws,
effective as of July 6, 1998, (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 (except as contemplated by the Trust Indenture) 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, and (2) in connection with the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station).
(4) Except as to the financial statements and other financial or
statistical data included or incorporated by reference therein,
upon which we do not express an opinion, the documents or
portions thereof filed with the Commission by the Company
pursuant to the Exchange Act, and incorporated or deemed to be
incorporated by reference in the Offering Memorandum, on the
respective dates 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.
(5) An appropriate order or orders have been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds; to the best of our knowledge, said order
or orders are in full force and effect; no further approval,
authorization, consent or other order of any governmental body
(other than 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 Funding
Corporation of the Bonds to you pursuant to the Purchase
Agreement or the execution and delivery of the Trust Indenture by
the Company; 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
Trust Indenture and the Purchase Agreement.
(6) The statements made in the Offering Memorandum under the
captions "Summary of the Offering," "Security and Source of
Payment for the Bonds," "Description of the Bonds and the
Indenture," "Description of the Lease Indentures," "Description
of the Leases" and "Other Agreements," insofar as such statements
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(7) Assuming that (i) the representations and warranties of each
of the Company, the Funding Corporation and you set forth in
Sections 3(a)(ix) and (x), 3(b)(ii) and Section 4(b),
respectively, of the Purchase Agreement are accurate and the
agreements contained therein have been duly complied with, (ii)
the Company and the Funding Corporation will duly perform all of
the covenants and agreements set forth in Sections 5(g), (h),
(i), (j) and (k) of the Purchase Agreement and (iii) you have
complied with the offering and transfer procedures and
restrictions described in the Offering Memorandum, no
registration of the Bonds under the Securities Act or
qualification of the Trust Indenture under the Trust Indenture
Act is required in connection with the offer and sale of the
Bonds by the Funding Corporation and the offer, initial resale
and delivery of the Bonds by you in the manner contemplated by
the Purchase Agreement and the Offering Memorandum (it being
understood that we do not express any opinion concerning any sale
of the Bonds subsequent to the initial resales thereof by you).
In connection with the preparation by the Company of the
Offering Memorandum, we have had discussions with certain of the
officers, employees, and representatives of the Company and
Entergy Services, Inc., with other counsel for the Company, and
with the independent certified public accountants of the Company
who audited certain of the financial statements incorporated by
reference in the Offering Memorandum. Our examination of the
Offering Memorandum and the above-mentioned discussions did not
disclose to us any information which gives us reason to believe
that the Offering Memorandum, as of its date and at the date
hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to (i) the financial
statements or other financial or statistical data included or
incorporated by reference in the Offering Memorandum or (ii) the
information contained in the Offering Memorandum under the
caption "Description of the Bonds and the Indenture - Book-Entry
Securities."
This opinion is limited to the laws of the States of New
York, Mississippi, Arkansas and the United States of America. 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. 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, which has been
delivered to you pursuant to the Purchase Agreement.
With respect to the opinion set forth in paragraph 1 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 Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
We have not examined and are expressing no opinion as to the
title of the Company to its properties or the lien of the Trust
Indenture.
The opinion set forth above is solely for the benefit of the
addressees of this letter and may not be relied upon in any
manner by any other person without our prior written consent,
except that ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional
Association, may rely on this opinion as to matters of New York
law in rendering its opinion referred to above.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
EXHIBIT C
[Letterhead of Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP]
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇,
Professional Association
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 to the initial purchasers
named in Schedule I to the Purchase Agreement (the "Initial
Purchasers"), effective April 16, 2004 (the "Purchase
Agreement"), among GG1C Funding Corporation, a Delaware
corporation (the "Funding Corporation"), the Company and the
Initial Purchasers, of $284,756,685 in aggregate principal amount
of the Funding Corporation's Secured Lease Obligation Bonds,
5.129% Series due 2014 (the "Bonds"). The Bonds are being issued
pursuant to the Collateral Trust Indenture, dated as of May 1,
2004 as amended by Supplemental Indenture No. 1, dated as of May
1, 2004 (the Collateral Trust Indenture, as so amended, being
hereinafter referred to as the "Trust Indenture"), among the
Funding Corporation, the Company and Deutsche Bank Trust Company
Americas, as trustee (the "Trustee"). 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 Purchase 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,
dated April 28, 1989, and the Company's By-Laws, effective as of
July 6, 1998; (b) the Purchase Agreement; (c) the Trust
Indenture; (d) the Offering Memorandum; and (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by the Funding Corporation and the
execution and delivery by the Company of the Trust Indenture and
the Purchase 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. As to such matters of fact material to this
opinion, we have also relied upon representations and
certifications of the Company in such documents and in the
Purchase Agreement, and upon statements in the Offering
Memorandum. 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.
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 Trust Indenture has been duly authorized by all
necessary corporate action on the part of the Company, has been
duly executed and delivered by the Company, and is a legal, valid
and binding instrument of the Company enforceable against the
Company in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights or remedies for the enforcement
of the security interest provided by the Trust Indenture and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(3) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(4) The execution, delivery and performance by the Company of
the Trust Indenture and the Purchase Agreement, and the
consummation of the transactions contemplated thereby (a) will
not violate any provision of the Company's Amended and Restated
Articles of Incorporation, dated April 28, 1989 or By-laws,
effective as of July 6, 1998, each as amended, and (b) will not
violate or conflict with 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.
(5) 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 Trust
Indenture and the Purchase Agreement.
With respect to the opinion set forth in paragraph 2 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 Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
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 Purchase Agreement. The opinions set forth
above are solely for your benefit in connection with the Purchase
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
Pillsbury Winthrop LLP may rely on these opinions as to all
matters of Arkansas law and the Initial Purchasers to whom your
respective opinions are addressed may rely upon these opinions as
though addressed and delivered to the Initial Purchasers.
Very truly yours,
FRIDAY, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
EXHIBIT D
[Letterhead of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, Counsel to
Funding Corporation]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Citigroup Global Markets Inc.
The Royal Bank of Scotland plc
Wedbush ▇▇▇▇▇▇ Securities Inc.
c/oMorgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special counsel to GG1C Funding
Corporation, a Delaware corporation ("Funding Corporation"), in
connection with the sale to you of $284,756,685 aggregate
principal amount of Funding Corporation's Secured Lease
Obligation Bonds, 5.129% Series due 2014 (the "Bonds"), pursuant
to and subject to the conditions set forth in the Purchase
Agreement, effective April 16, 2004 (the "Purchase Agreement"),
among Funding Corporation, System Energy Resources, Inc., an
Arkansas corporation (the "Company") and you. The Bonds are
being issued pursuant to the Collateral Trust Indenture, dated as
of May 1, 2004, as amended by Supplemental Indenture No. 1, dated
as of May 1, 2004 (the Collateral Trust Indenture, as so amended,
being hereinafter referred to as the "Trust Indenture"), among
Funding Corporation, the Company and Deutsche Bank Trust Company
Americas, as trustee (the "Trustee"). 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 Purchase Agreement.
In our capacity as such counsel, we have either participated
in the preparation of or have examined and are familiar with:
(a) Funding Corporation's Certificate of Incorporation and By-
Laws, as amended; (b) the Purchase Agreement; (c) the Trust
Indenture; (d) the Offering Memorandum; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Bonds by Funding Corporation and the
execution and delivery by the Company of the Trust Indenture and
the Purchase Agreement; and (f) the proceedings before and order
issued by the Commission under the Holding Company Act relating
to the issuance and sale of the Bonds by Funding Corporation, and
the execution and delivery by Funding Corporation of the Trust
Indenture and the Purchase 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. As to such matters of fact
material to this opinion, we have also relied upon
representations and certifications of the Company, Funding
Corporation and you in such documents and in the Purchase
Agreement, and upon statements in the Offering Memorandum. 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 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) Funding Corporation is duly incorporated and validly
existing as a corporation in good standing under the laws of the
State of Delaware and has all corporate and other power and
authority to own its properties and conduct its business as
described in the Offering Memorandum.
(2) The Trust Indenture has been duly authorized by all
necessary corporate action on the part of Funding Corporation,
has been duly executed and delivered by Funding Corporation and
is a legal, valid and binding instrument of Funding Corporation,
enforceable against Funding Corporation in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization and other laws
affecting creditors' rights or remedies for the enforcement of
the security interest provided by the Trust Indenture and by
general equitable principles (whether considered in a proceeding
in equity or at law).
(3) Funding Corporation has executed such instruments and
complied with such other formalities as are required by the Trust
Indenture as a condition precedent to the creation and issuance
of the Bonds.
(4) The Bonds have been duly authorized, executed and issued by
Funding Corporation and are legal, valid and binding obligations
of Funding Corporation enforceable against the Funding
Corporation in accordance with their terms, except as may be
limited by bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization and other laws affecting creditors'
rights or remedies for the enforcement of the security interest
provided by the Trust Indenture and by general equitable
principles (whether considered in a proceeding in equity or at
law), are entitled to the benefits and security afforded by the
Trust Indenture in accordance with the terms of the Trust
Indenture and the Bonds, and conform to the description thereof
in the Offering Memorandum.
(5) The Commission has issued an order or orders under the
Holding Company Act authorizing the issuance and sale of the
Bonds, and no other consent, approval, authorization or other
order of any regulatory body is legally required for the valid
issuance and sale of the Bonds pursuant to the Purchase Agreement
other than such registration or qualification as may be required
under state securities or blue sky laws.
(6) It is not necessary for Funding Corporation to register as
an investment company pursuant to the Investment Company Act of
1940 in order to participate in the transactions contemplated by
the Offering Memorandum.
(7) The Purchase Agreement has been duly authorized, executed
and delivered by Funding Corporation.
(8) Except as disclosed in the Offering Memorandum, there is no
action, suit, proceeding or investigation pending against or
affecting Funding Corporation or any of its assets the result of
which would, in our opinion, have a materially adverse effect on
the financial condition of Funding Corporation or on the issuance
and sale of the Bonds in accordance with the Purchase Agreement.
(9) Neither the execution and delivery by Funding Corporation of
the Purchase Agreement, the Bonds or the Trust Indenture nor the
consummation of the transactions therein contemplated will
violate any provision of the Certificate of Incorporation or By-
Laws of Funding Corporation, 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 (except as contemplated by the Trust Indenture) any
of the assets of Funding Corporation 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 Funding Corporation is a party or which
purports to be binding upon Funding Corporation or upon any of
its assets, or violate any provision of any law or regulation
applicable to Funding Corporation 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 Funding Corporation
(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 in connection or compliance with
the provisions of the securities or blue sky laws of any
jurisdiction).
(10) The statements contained in the Offering Memorandum under
the captions "Summary of the Offering," "Security and Source of
Payment for the Bonds," "GG1C Funding Corporation," "Description
of the Bonds and the Indenture," "Description of the Lease
Indentures," "Description of the Leases" and "Other Agreements,"
insofar as such statements purport to constitute summaries of
documents referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
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 Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
This opinion is limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and
the federal laws of the United States of America.
The opinion set forth above is solely for your benefit in
connection with the Purchase 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 the Trustee, Funding
Corporation and the Company are entitled to rely on this opinion
as if addressed to them.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
EXHIBIT E
[Letterhead of Pillsbury Winthrop LLP]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Citigroup Global Markets Inc.
The Royal Bank of Scotland plc
Wedbush ▇▇▇▇▇▇ Securities Inc.
c/oMorgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for you as the several Initial
Purchasers of $284,756,685 aggregate principal amount of Secured
Lease Obligation Bonds, 5.129% Series due 2014 (the "Bonds")
issued by GG1C Funding Corporation, a Delaware corporation (the
"Funding Corporation"), pursuant to the Purchase Agreement among
you, System Energy Resources, Inc. an Arkansas corporation (the
"Company"), and the Funding Corporation dated April 16, 2004 (the
"Purchase Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the
Purchase Agreement.
We are members of the Bar of the State of New York 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
an opinion of even date herewith addressed to you of Friday,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP as to all matters of Arkansas law related
to this opinion.
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 Purchase
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 also
relied upon representations and certifications of the Company in
such documents and in the Purchase Agreement, and upon statements
in the Offering Memorandum. In such review, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, 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 Trustee as to the
authentication and delivery of the Bonds by the Trustee and as to
the authorization, execution and delivery of the Trust Indenture
by the Trustee. We have not examined, and are expressing no
opinion or belief as to matters relating to, titles to property,
franchises, the lien purported to be created by the Trust
Indenture or the recordation or perfection of such lien.
Subject to the foregoing and to the further exceptions and
qualifications set forth below, we are of the opinion that:
(1) The Trust Indenture has been duly authorized by all
necessary corporate action on the part of the Company and the
Funding Corporation, has been duly executed and delivered by the
Company and the Funding Corporation and is a legal, valid and
binding instrument of the Company and the Funding Corporation
enforceable against the Company and the Funding Corporation in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights or remedies for the enforcement of the security
interest provided by the Trust Indenture, general equitable
principles (whether considered in a proceeding in equity or at
law), and an implied covenant of reasonableness, good faith and
fair dealing.
(2) The Bonds have been duly authorized by all necessary
corporate action on the part of the Funding Corporation and are
legal, valid and binding obligations of the Funding Corporation
enforceable against the Funding Corporation in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or other
similar laws affecting enforcement of creditors' rights or
remedies for the enforcement of the security interest provided by
the Trust Indenture, 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.
(3) The statements made in the Offering Memorandum under the
captions "Summary of the Offering", "Security and Source of
Payment for the Bonds", "Description of the Bonds and the
Indenture", "Description of the Lease Indentures", "Description
of the Leases" and "Other Agreements", insofar as such statements
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Purchase Agreement has been duly authorized, executed
and delivered by the Funding Corporation and the Company.
(5) An appropriate order or orders have been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds by the Funding Corporation and, to the best
of our knowledge, such order or orders are in full force and
effect; and no further approval, authorization, consent or other
order of any governmental body (other than 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 Funding Corporation pursuant to the
Purchase Agreement.
(6) Except in each case as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the documents filed
with the Commission by the Company pursuant to the Exchange Act
and incorporated by reference in the Offering Memorandum, 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.
(7) Assuming that (i) the representations and warranties of each
of the Company, the Funding Corporation and you set forth in
Sections 3(a)(ix) and (x), 3(b)(ii) and Section 4(b),
respectively, of the Purchase Agreement are accurate and the
agreements contained therein have been duly complied with, (ii)
the Company and the Funding Corporation will duly perform all of
the covenants and agreements set forth in Sections 5(g), (h),
(i), (j) and (k) of the Purchase Agreement and (iii) you have
complied and will comply with the offering and transfer
procedures and restrictions described in the Offering Memorandum,
no registration of the Bonds under the Securities Act or
qualification of the Mortgage under the Trust Indenture Act is
required in connection with the offer and sale of the Bonds by
the Funding Corporation and the offer, initial resale and
delivery of the Bonds by you in the manner contemplated by the
Purchase Agreement and the Offering Memorandum (it being
understood that we do not express any opinion concerning any sale
of the Bonds subsequent to the initial resales thereof by you).
While we have, for purposes of this opinion, reviewed and
are familiar with the Offering Memorandum, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the Offering Memorandum and take no responsibility
therefor, except insofar as such statements relate to us and as
set forth in paragraph 4 above. Our review did not include
making independent verifications of the statements included or
incorporated by reference in the Offering Memorandum. In
connection with the preparation by the Company of the Offering
Memorandum, 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 incorporated by reference in the Offering Memorandum.
Our review of the Offering Memorandum and the above-mentioned
discussions did not disclose to us any information that gives us
reason to believe that the Offering Memorandum, as of its date or
at the date hereof, taking into account the documents
incorporated by reference therein, 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 the
financial statements or other financial or statistical data
included or incorporated by reference in the Offering Memorandum.
With respect to the opinions set forth in paragraphs 1 and 2
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 Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
This opinion is furnished only to you in connection with the
transactions contemplated by the Purchase Agreement and is solely
for your benefit. This opinion is not to be used, circulated,
quoted or otherwise referred to for any other purpose or relied
upon by any other person for any purpose without our prior
written consent (including by any person that acquires Bonds from
you).
Very truly yours,
PILLSBURY WINTHROP LLP