EXHIBIT 1.1
Cleco Power LLC
$75,000,000
5.375% Notes
due May 1, 2013
Underwriting Agreement
April 23, 2003
New York, New York
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hibernia Southcoast Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Tower
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Cleco Power LLC, a Louisiana limited liability company (the "Company")
confirms its agreement with BNY Capital Markets, Inc., Banc One Capital Markets
Inc., Hibernia Southcoast Capital, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. (the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 8 hereof) as follows:
1. Offering. The Company proposes to issue and sell to the Underwriters
an aggregate principal amount of $75,000,000 of its 5.375% Notes due May 1, 2013
(the "Notes"). The Notes are to be issued pursuant to an Indenture dated as of
October 1, 1988, as amended and supplemented by the First Supplemental Indenture
dated as of December 1, 2000, the Second Supplemental Indenture dated as of
January 1, 2001, the Third Supplemental Indenture dated as of April 26, 2001,
the Fourth Supplemental Indenture dated as of February 1, 2002, the Fifth
Supplemental Indenture dated as of May 1, 2002 and the Sixth Supplemental
Indenture to be dated as of April 28, 2003 (the "Sixth Supplemental Indenture")
and as it may from time to time hereafter be further amended and supplemented
(the "Indenture"), between the Company (successor to Cleco Utility Group Inc.,
which previously was known as Central Louisiana Electric Company, Inc.) and The
Bank of New York (successor to Bankers Trust Company), as trustee (the
"Trustee"). The Notes are more particularly described in the Prospectus (as
hereinafter defined) and in the Indenture filed as an exhibit to the
Registration Statement (as hereinafter defined).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-52540) for the
registration of the offer and sale of certain debt securities, including the
Notes, under the Securities Act of 1933, as amended (the "1933 Act"), from time
to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the Commission, and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus supplement reflecting the terms of the Notes, the
terms of the offering thereof and the other matters set forth therein, pursuant
to Rule 424(b) under the 1933 Act Regulations. The final prospectus and the
final prospectus supplement relating to the Notes in the forms filed with the
Commission pursuant to Rule 424(b) under the 1933 Act Regulations for use in
connection with the offering of the Notes, are collectively referred to herein
as the "Prospectus", and such registration statement in the form in which it
became effective, is hereinafter called the "Registration Statement"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the date of this Agreement. A "preliminary prospectus"
shall be deemed to refer to any prospectus that omitted information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) under the 1933 Act Regulations and was used after such
effectiveness and prior to the initial delivery of the Prospectus to the
Underwriters by the Company. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to be identical
to the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be, prior to the date of this Agreement; and all
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be, after the date of this Agreement.
2. Sale and Delivery of the Notes; Closing. Subject to the terms and
conditions and based upon the representations and warranties set forth in this
Agreement, the Company agrees to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, the principal
amount of Notes set forth in Schedule I to this Agreement opposite the name of
such Underwriter (plus any additional amount of Notes that such Underwriter may
become obligated to purchase pursuant to the provisions of Section 8 hereof), at
a price of 99.257% of the principal amount thereof.
The Underwriters agree to make a public offering of the Notes at the public
offering price and upon the terms and conditions set forth in the Prospectus.
2
Payment of the purchase price for, and delivery of certificates for, the
Notes, shall be made at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ or at such other place as shall be agreed upon
by the Underwriters and the Company, at 9:00 a.m., New York time, on April 28,
2003, or on such later day and time (not later than ten full business days
thereafter) as may be agreed upon in writing between the Underwriters and the
Company, such day and time of delivery and payment being herein called the
"Closing Date."
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters for their accounts of global certificates for the Notes being
purchased by the Underwriters.
Global certificates for the Notes shall be in such denominations ($1,000 or
integral multiples thereof) and registered in such names as the Underwriters may
request in writing at least one full business day before the Closing Date. The
Notes will be made available for examination and, if applicable, packaging by
the Underwriters in The City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Date.
3. Representations and Warranties. The Company represents and warrants to
the Underwriters as of the date hereof and as of the Closing Date as set forth
below in this Section 3.
(a) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has been declared effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or threatened.
(b) Due Organization. The Company has been duly organized and is
validly existing as a limited liability company under the laws of the State
of Louisiana and has the limited liability company power and authority to
own its properties and to conduct its business as described in the
Registration Statement.
(c) Subsidiaries. The Company has no "Significant Subsidiaries", as
such term is defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(d) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the Closing Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act, and the rules and regulations of the Commission promulgated
thereunder. The Registration Statement, at the time it became effective,
did not, as of the date hereof, does not, and at the Closing Date, will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of its date and at
the Closing Date will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or Prospectus
or to that part of the
3
Registration Statement which constitutes the Trustee's Statement of
Eligibility and Qualification under the 1939 Act (the "Form T-1").
(e) Incorporated Documents. The documents incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
Commission, complied or, when so filed, will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became effective, as of the date of the Prospectus
and as of the Closing Date, did not and will not, as of such time or dates,
as the case may be, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were or are made, not misleading.
(f) Accountants. PricewaterhouseCoopers LLP, who have reported upon
certain of the financial statements incorporated by reference in the
Registration Statement, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(g) Financial Statements. The financial statements and supplemental
schedules of the Company set forth in or incorporated by reference in the
Registration Statement and Prospectus have been prepared from the books and
records of the Company in accordance with generally accepted accounting
principles consistently followed throughout the periods indicated (except
as may be noted therein) and present fairly the financial position of the
Company at the dates indicated and the results of its operations, its cash
flows and changes in its capital for the periods then ended.
(h) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and
Prospectus, except as otherwise stated therein, (i) there has not been any
material adverse change in the condition of the Company, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business and
(ii) no material transaction has been entered into by the Company other
than transactions contemplated by the Registration Statement and
transactions in the ordinary course of business.
(i) No Defaults. The Company is not in violation of or in default
under any term or provision of the Articles of Organization or the
Operating Agreement of the Company, as amended, or of any mortgage,
indenture, contract, agreement, instrument, judgment, decree or order
applicable to the Company or of any statute, rule or regulation, where such
violation or default would have a material adverse effect upon the
properties, assets, business, prospects or condition (financial or
otherwise) of the Company, and no event or condition has occurred or exists
which, with the giving of notice or lapse of time or both, would result in
any such violation or default which would have such an effect.
(j) Regulatory Approvals. The Louisiana Public Service Commission
(the "LPSC") has authorized the issuance and sale of the Notes as
contemplated by this Agreement and as described in the Prospectus; and,
other than approvals that may be required under state securities laws, no
other approval of any regulatory public body, state or federal, including
approval of the Federal Energy Regulatory Commission
4
("FERC") that may be required under the Federal Power Act, as amended (the
"FPA"), is necessary in connection with the issuance and sale of the Notes
pursuant to this Agreement.
(k) Legal Proceedings. Except as described in the Registration
Statement, there is no material litigation or governmental proceeding
involving or, to the knowledge of the Company, threatened against the
Company which might reasonably be expected to result in any material
adverse change in the financial condition, results of operations or
business of the Company or which is required to be disclosed in the
Registration Statement, and no notice has been given by any governmental
authority of any proceeding to condemn any material properties of the
Company, and, to the knowledge of the Company, no such proceeding is
contemplated.
(l) Good Title. The Company has good title (either by way of fee
simple, leasehold, easement, right-of-way, grant, servitude, privilege,
permit, franchise or license, as the case may be) to all its properties
including, without limitation, the properties reflected in the most recent
balance sheet of the Company incorporated by reference in the Registration
Statement (except for such items thereof which have been disposed of since
such date and which do not, in the aggregate, constitute a substantial
amount) subject only to (i) the lien of the Indenture of Mortgage, dated as
of July 1, 1950, as supplemented, from the Company to Bank One Trust
Company, N.A. (successor to First National Bank of Commerce), as trustee,
securing the Company's First Mortgage Bonds, and encumbrances permitted
thereby and (ii) other encumbrances and defects which do not in the
aggregate materially detract from the value of the properties of the
Company or impair or interfere with the use of properties material to the
business and operations of the Company.
(m) Regulatory Compliance. The Company is in substantial compliance
with all federal and state environmental statutes, rules and regulations
and, to the Company's knowledge, has received all required permits
necessary for the operation of its business under such statutes, rules and
regulations.
(n) Authorization and Validity of the Notes. The Notes have been duly
authorized for issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration therefor
specified in this Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); the
Notes and the Indenture conform in all material respects to all statements
relating thereto contained in the Prospectus; and the Notes will be
entitled to the benefits provided by the Indenture.
(o) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company; and the consummation of the transactions
contemplated by this Agreement and the performance of the Company's
obligations hereunder will not result in any material violation of, or be
in material conflict with or constitute a material default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
5
of the properties or assets of the Company that are material to the conduct
of its business under the Articles of Organization or the Operating
Agreement of the Company, as amended, or any material mortgage, contract,
indenture, agreement or instrument to which the Company is a party or by
which it is bound, or any judgment, order, statute, rule or regulation
applicable to it of any court or governmental body or instrumentality
having jurisdiction over it or its properties, and the Company has full
legal right, power and authority to enter into this Agreement and to
perform all of its obligations hereunder.
(p) Authorization of the Indenture. The Indenture, with the exception
of the Sixth Supplemental Indenture, has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting
creditors' rights generally or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law). The Sixth Supplemental Indenture has been duly authorized by the
Company and, when executed and delivered by the Company prior to the time
the Notes are issued, assuming due authorization, execution and delivery by
the Trustee, will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(q) ▇▇▇▇ ▇▇▇. Based upon the timely filing by Cleco Corporation, a
Louisiana corporation and the sole member of the Company (the "Parent"),
with the Commission of an exemption statement pursuant to Rule 2 under the
Public Utility Holding Company Act of 1935, as amended (the "1935 Act"),
the Parent is exempt from regulation as a public utility holding company
under the 1935 Act, except with respect to the acquisition of certain
voting securities of other domestic public utility companies and utility
holding companies.
4. Agreements of the Company. The Company agrees with the Underwriters
that:
(a) At any time when a prospectus relating to the Notes is required
to be delivered under the 1933 Act, the Company will not file or make any
amendment to the Registration Statement or any supplement to the Prospectus
(except for periodic or current reports filed under the ▇▇▇▇ ▇▇▇) unless
the Company has furnished each of the Underwriters a copy for its review
prior to filing and given the Underwriters a reasonable opportunity to
comment on any such proposed amendment or supplement. Each of the
Underwriters shall make its responses thereto, if any, promptly.
Immediately following the execution of this Agreement, the Company will
prepare a prospectus supplement, in form approved by the Underwriters,
setting forth the principal amount of Notes and their terms not otherwise
specified in the base prospectus, the Underwriters' names, the price at
which the Notes are to be purchased by the Underwriters from the Company,
the principal amount of Notes to be purchased by each Underwriter, the
initial offering price, the selling concession and reallowance, if any, and
such other information as the Underwriters and the Company deem appropriate
in connection with the offering of the Notes. The Company will promptly
cause the Prospectus to be filed with the
6
Commission pursuant to Rule 424(b) under the 1933 Act Regulations in the
manner and within the time period prescribed by such rule and will provide
evidence satisfactory to the Underwriters of such filing. The Company will
promptly advise the Underwriters (i) at any time when a prospectus relating
to the Notes is required to be delivered under the 1933 Act, when any
post-effective amendment to the Registration Statement shall have been
filed or become effective, (ii) of any request by the Commission for any
post-effective amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening by direct
communication with the Company of any proceeding for that purpose, and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening by direct communication with the Company
of any proceeding for such purpose. The Company will promptly effect the
filing of the Prospectus necessary pursuant to Rule 424(b) under the 1933
Act Regulations and will take such steps as it deems necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was
not, it will promptly file the Prospectus. The Company will use its
reasonable best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If at any time when a prospectus relating to the Notes is
required to be delivered under the 1933 Act, any event occurs as a result
of which the Prospectus would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement
or to supplement the Prospectus to comply with the 1933 Act or the 1934 Act
or the respective rules thereunder, the Company promptly will (i) notify
the Underwriters, (ii) prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance, and (iii) supply any supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may reasonably request.
(c) During the period when a prospectus relating to the Notes is
required to be delivered under the 1933 Act, (i) the Company will file
promptly all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and will furnish to the
Underwriters copies of such documents, (ii) on or prior to the date on
which the Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be described,
or which the Company proposes to describe, in a document filed pursuant to
the 1934 Act, the Company will furnish to the Underwriters the information
contained or to be contained in such announcement or document, (iii) the
Company will furnish to the Underwriters copies of all other material press
releases or announcements to the general public, and (iv) the Company will
immediately notify the Underwriters of (a) any decrease in the rating of
the Notes or any other debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the ▇▇▇▇ ▇▇▇) or (b) any public notice given of any
intended or potential decrease in any such rating or of a possible change
in any such rating that does not indicate the direction of the possible
change, as soon as the Company learns of any such decrease or notice.
7
(d) As soon as practicable, but not later than 90 days after the
close of the period covered by the earnings statement, the Company will
make generally available to its security holders and to the Underwriters an
earnings statement or statements of the Company and its subsidiaries which
will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
under the 1933 Act.
(e) So long as the Underwriters are required to deliver a prospectus
in connection with sales of the Notes, the Company will furnish to the
Underwriters and their counsel, without charge, such copies of the
Registration Statement (including exhibits thereto) and Prospectus as the
Underwriters may reasonably request.
(f) The Company will endeavor, in cooperation with the Underwriters,
to arrange for the qualification of the Notes for sale under the laws of
such jurisdictions of the United States of America as the Underwriters may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Notes; provided, however, that the Company will
not be obligated to file any general consent to service of process or to
qualify as a foreign limited liability company in any jurisdiction in which
it is not so qualified.
(g) The Company will apply the net proceeds from the offering of the
Notes in the manner set forth under the caption "Use of Proceeds" in the
Prospectus.
(h) The Company will not, during the period of 30 days from the date
on which the Notes are purchased by the Underwriters sell, offer to sell,
grant any option for the sale of, or otherwise dispose of any Notes, any
security convertible into or exchangeable into or exercisable for the Notes
or any debt securities substantially similar to the Notes, without the
prior written consent of the Underwriters.
(i) The Company shall, whether or not any sale of the Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and related
documents delivered to the Underwriters, the cost of preparing, printing,
packaging and delivering the Notes, the fees and expenses incurred in
compliance with Section 4(f) hereof, the fees and disbursements of the
Trustee (including legal fees and disbursements, if any, of counsel to the
Trustee), the fees of any agency that rates the Notes, and any fees payable
in connection with the acceptance of the Notes for clearance and settlement
through the facilities of The Depository Trust Company. If this Agreement
is terminated by the Underwriters in accordance with the provisions of
Section 5 or Section 7(a)(i) hereof, the Company shall reimburse the
Underwriters for all of its reasonable out-of-pocket expenses relating to
the offer and sale of the Notes contemplated by this Agreement, including
the reasonable fees and disbursements of counsel for the Underwriters
incurred in connection therewith.
5. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Notes shall be subject to the accuracy
of the representations and the warranties on the part of the Company herein
contained as of the date hereof and as of the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant
8
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed in the manner and within the
time period required by Rule 424(b) under the 1933 Act Regulations and no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) On the Closing Date, the Company shall have furnished to the
Underwriters the opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company, or
other counsel satisfactory to the Underwriters, dated the Closing Date, to
the effect that:
(i) This Agreement constitutes the legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except insofar as enforceability of
the indemnification and contribution provisions hereof may be
limited under applicable federal or state securities laws and
except as such enforceability is subject to the effect of any
applicable bankruptcy, insolvency, reorganization or other law
relating to or affecting creditors' rights generally and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(ii) Assuming that the Indenture, including the Sixth
Supplemental Indenture, has been duly authorized, executed and
delivered by the Trustee, the Indenture, including the Sixth
Supplemental Indenture, constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability is
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors'
rights generally and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) The specimen note attached as Exhibit A to the Sixth
Supplemental Indenture is in the form and contains the terms
required by the Indenture;
(iv) Assuming that the Notes have been duly authenticated
by the Trustee as specified in the Indenture and delivered
against payment of the consideration therefor determined in
accordance with this Agreement, the Notes constitute legal, valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, and the Notes are
entitled to the benefits of the Indenture, except as such
enforceability is subject to the effect of any applicable
bankruptcy, insolvency, reorganization or other law relating to
or affecting creditors' rights generally and to general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(v) The execution and delivery of the Indenture, this
Agreement and the Notes by the Company and the performance by the
Company of its agreements therein or herein will not (a) breach
or
9
otherwise violate any order known to us and applicable to the
Company in effect on the date hereof of any court or governmental
body or instrumentality of the federal government of the United
States of America having jurisdiction over the Company or its
properties or (b) violate any statute of the federal government
of the United States of America in effect on the date hereof, or
any rule or regulation in effect on the date hereof applicable to
the Company of any governmental body or instrumentality of the
federal government of the United States of America having
jurisdiction over the Company or its properties;
(vi) The terms and provisions of the Notes and the
Indenture conform in all material respects to the descriptions
thereof contained in the Registration Statement and the
Prospectus;
(vii) No approval, authorization, consent or order of any
public board, body or agency of the federal government of the
United States of America is legally required for the issuance and
sale of the Notes or the performance by the Company of its
agreements in this Agreement, the Indenture or the Notes;
(viii) The Registration Statement has become effective under
the 1933 Act and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or threatened under the 1933 Act; the Registration
Statement and the Prospectus (other than the financial statements
and schedules, including the notes thereto, the auditors' report
thereon and the related summary of accounting policies, contained
or incorporated by reference therein, as to which no opinion need
be rendered) appear on their faces to comply as to form in all
material respects with the requirements of Form S-3, the
applicable rules and regulations with respect thereto under the
1939 Act, the 1933 Act and the 1933 Act Regulations, to the
extent that such requirements, rules and regulations are
applicable to the forms thereof; and the Prospectus has been
filed with or transmitted for filing to the Commission in
accordance with Rule 424 of the 1933 Act Regulations;
(ix) We do not know of any contracts of a character
required to be described in the Registration Statement or
Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement which are not described,
filed or incorporated by reference as required;
(x) We do not know of any legal proceedings pending or
threatened against the Company of a character which are required
to be disclosed in the Registration Statement and Prospectus
which have not been disclosed therein;
(xi) Based upon the timely filing by the Parent with the
Commission of an exemption statement pursuant to Rule 2 under the
1935 Act, the Parent is exempt from regulation as a public
utility holding company under the 1935 Act, except with respect
to the acquisition of
10
certain voting securities of other domestic public utility
companies and utility holding companies;
(xii) The Indenture is qualified under the 1939 Act;
(xiii) The information in the Prospectus under the captions
"Description of the Notes" and "Description of the Debt
Securities", to the extent that it constitutes a summary of
certain provisions of the Indenture or the Notes, has been
reviewed by us and is correct in all material respects; and
(xiv) The documents incorporated by reference in the
Prospectus (other than the financial statements and schedules,
including the notes thereto, the auditors' report thereon and the
related summary of accounting policies, contained or incorporated
by reference into such documents, as to which no opinion need be
rendered), at the time they were filed with the Commission,
appear on their faces to comply as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, to the extent that such requirements, rules and
regulations are applicable to the forms thereof.
In giving such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to matters of
Louisiana law upon the opinion of R. O'▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., or such other
satisfactory counsel, as referred to below.
(c) On the Closing Date, the Company shall have furnished to the
Underwriters the opinion of R. O'▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., General Counsel of the
Company, or other counsel satisfactory to the Underwriters, dated the
Closing Date, to the effect that:
(i) The Company is a limited liability company duly
organized and validly existing under the laws of the State of
Louisiana and has all limited liability company power and
authority necessary to own its properties and to conduct the
business in which it is engaged as described in the Prospectus;
(ii) To his knowledge, the Company is registered or
qualified as a foreign limited liability company for the
transaction of business in the jurisdictions in which the
character of the business conducted by the Company or the nature
or location of the properties owned or leased by it make such
registration or qualification necessary, except where the failure
so to register or qualify would not have a material adverse
effect on the business or properties of the Company, taken as a
whole;
(iii) The Company has full right, power and authority to
enter into this Agreement and to perform all of its obligations
hereunder or contemplated hereby and this Agreement has been duly
authorized, executed and delivered by the Company;
11
(iv) The Indenture has been duly authorized, executed and
delivered by the Company;
(v) The Company has taken all necessary limited liability
company action to authorize the execution and delivery of the
Notes and the Notes have been duly executed and delivered by the
Company;
(vi) Other than in connection with the provisions of
securities or "blue sky" laws of any jurisdiction in which it is
proposed that the Notes be offered or sold (as to which no
opinion need be rendered) and other than the required order or
orders of the LPSC referred to below, no approval, authorization,
consent or order of any public board, body or agency of the State
of Louisiana is legally required as of the date hereof for the
issuance and sale of the Notes, or the performance by the Company
of its agreements in this Agreement, the Indenture or the Notes;
(vii) The Company is subject to the jurisdiction of the
LPSC, the LPSC has authorized the issuance and sale of the Notes
as contemplated by this Agreement and as described in the
Prospectus, and the orders of the LPSC with respect to the
issuance and sale of the Notes are in full force and effect as of
the date hereof;
(viii) To his knowledge, the Company has valid and
subsisting franchises, consents, certificates and permits, free
from burdensome conditions or restrictions, sufficient in all
material respects to enable it to carry on its business in the
State of Louisiana and in the communities, parishes and other
governmental subdivisions thereof in which it operates, taken as
a whole; and
(ix) The execution and delivery of this Agreement, the
Indenture or the Notes by the Company and the performance by the
Company of its agreements therein or herein will not (a) breach
or result in a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company that are described in the
Registration Statement and the Prospectus under, any existing
obligation of the Company under any indenture, agreement or
instrument known to him to which the Company is a party or by
which it is bound, (b) breach or otherwise violate any order
known to him and applicable to the Company in effect on the date
hereof of any court or governmental body or instrumentality of
the State of Louisiana having jurisdiction over the Company or
its properties or (c) violate (i) the Articles of Organization or
the Operating Agreement of the Company, each as amended to date,
or (ii) any statute of the State of Louisiana in effect on the
date hereof, or any published rule or regulation, in effect on
the date hereof applicable to the Company of any governmental
body or instrumentality of the State of Louisiana having
jurisdiction over the Company or its properties.
12
(d) On the Closing Date, the Underwriters shall have received from
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, or other
counsel satisfactory to the Underwriter, such opinion or opinions, dated
the Closing Date, with respect to matters set forth in clauses (vi), (viii)
and (xii) of subparagraph (b) of this Section 5 and to the effect that:
(i) Assuming that this Agreement has been duly authorized,
executed and delivered by the Company, this Agreement constitutes
the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except insofar as enforceability of the indemnification and
contribution provisions hereof may be limited under applicable
federal or state securities laws;
(ii) Assuming that the Indenture, including the Sixth
Supplemental Indenture, has been duly authorized, executed and
delivered by each of the Company and the Trustee, the Indenture,
including the Sixth Supplemental Indenture, constitutes the
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) The specimen note attached as Exhibit A to the Sixth
Supplemental Indenture is in the form and contains the terms
required by the Indenture; assuming that the Notes have been duly
authorized, executed and delivered by the Company and assuming
further that the Notes have been duly authenticated by the
Trustee as specified in the Indenture and delivered against
payment of the consideration therefor determined in accordance
with this Agreement, the Notes constitute legal, valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Notes are entitled to the benefits of
the Indenture; and
(iv) The information in the Prospectus under the captions
"Description of the Notes" and "Description of the Debt
Securities", to the extent that it constitutes a summary of
certain provisions of the Indenture or the Notes, has been
reviewed by us and is correct in all material respects.
In giving such opinion, Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely as to
matters of Louisiana law upon the opinion of R. O'▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., or
such other satisfactory counsel, as referred to above. Additionally, such
counsel may state in its opinion that such counsel's opinions are expressed
solely with respect to statements contained in or
13
incorporated by reference in the Registration Statement and the Prospectus
relating to the Company and that such counsel does not express any opinion
with respect to any statements contained in or incorporated by reference in
the Registration Statement and the Prospectus relating to the Parent.
(e) In giving their opinions required by subsections (b) and (d) of
this Section 5, each such counsel shall additionally state that nothing has
come to their attention that has caused them to believe that (a) the
Registration Statement, at the time it became effective (other than (i) the
financial statements and schedules, including the notes thereto, the
auditors' report thereon and the related summary of accounting policies,
contained or incorporated by reference therein, (ii) the other financial
information contained or incorporated by reference therein, and (iii) the
exhibits thereto, as to which no statement need be made) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (b) the Prospectus, as of its date and as of the Closing
Date (other than (i) the financial statements and schedules, including the
notes thereto, the auditors' report thereon and the related summary of
accounting policies, contained or incorporated by reference therein and
(ii) the other financial information contained or incorporated by reference
therein, as to which no statement need be made), contained or contains an
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.
(f) On the Closing Date there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the condition,
financial or otherwise, of the Company, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business; and the Underwriters shall have received a
certificate of the President, the Chief Financial Officer or the Treasurer
of the Company to the effect (i) that there has been no such material
adverse change, (ii) that the other representations and warranties of the
Company contained in Section 3 hereof are true and correct with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) that the Company has complied with all agreements and
satisfied all conditions pursuant to this Agreement on its part to be
performed or satisfied at or prior to the date of such certificate, and
(iv) that no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of such officers' knowledge, no
proceedings for that purpose have been initiated or threatened by the
Commission.
(g) On the date hereof, the Underwriters shall have received a letter
from the Company's independent accountants dated as of the date hereof in
form and substance satisfactory to the Underwriters.
(h) On the Closing Date, the Underwriters shall have received a
letter from the Company's independent accountants dated as of the Closing
Date in form and substance satisfactory to the Underwriters, confirming as
of the Closing Date their letter dated the date hereof and delivered to the
Underwriters pursuant to Section 5(g) hereof.
(i) On the Closing Date, the Underwriters shall have received in form
satisfactory to them confirmation that the Notes have been rated "BBB" by
Standard &
14
Poor's, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and "Baa1" by ▇▇▇▇▇'▇
Investors Service, Inc.
(j) On the date hereof and on the Closing Date, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy
or completeness of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Notes
as herein contemplated shall be satisfactory in form and substance in the
reasonable judgment of the Underwriters and their counsel.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Company at any time at or prior to the Closing
Date and any such termination shall be without liability of any party to any
other party, except as provided in Section 4(i), and except that Sections 4(i),
6, 9 and 12 shall survive any such termination and remain in full force and
effect.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters, the directors, officers, employees and agents of each of the
Underwriters and each person who controls each of the Underwriters within
the meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which the
Underwriters, the directors, officers, employees and agents of the
Underwriters and each person who controls any such Underwriter within the
meaning of either the 1933 Act or the 1934 Act or any of the aforementioned
may become subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus or any supplement thereto, in light of the
circumstances under which such statement was made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by the
Underwriters specifically for inclusion therein or in reliance upon the
Form T-1. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each of the Underwriters agrees severally and not jointly to
indemnify and hold harmless the Company, each of its managers, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the
15
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which the Underwriters may
otherwise have. The Company acknowledges that the statements set forth in
the fourth paragraph, the third sentence of the fifth paragraph, the
seventh paragraph, the third sentence of the eighth paragraph and the
second sentence of the ninth paragraph under the heading "Underwriting," of
the Prospectus constitute the only information furnished in writing by the
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and the Underwriters confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent the indemnifying party did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory in the reasonable judgment
of the indemnified party. Notwithstanding the indemnifying party's election
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. In no event shall an
indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from its own counsel
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
16
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is held unenforceable or is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and the Underwriters may be
subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of
the Notes from which such Losses arise; provided, however, that in no case
shall any such Underwriter be responsible for any amount in excess of the
underwriting discount received by such Underwriter in connection with the
Notes from which such Losses arise. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of
the Company and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) of the Notes from which such Losses arise, and benefits received
by each Underwriter shall be deemed to be equal to the total underwriting
discount received by such Underwriter in connection with the Notes from
which such Losses arise. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person who controls each of the Underwriters within the
meaning of the 1933 Act or the 1934 Act and each director, officer,
employee and agent of each of the Underwriters shall have the same rights
to contribution as the Underwriters and each person who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Company who shall have signed the Registration Statement,
each manager of the Company and each person, if any, who controls the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
The Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the principal amount of Notes set
forth opposite their respective names in Schedule I hereto and are not
joint.
7. Termination.
(a) This Agreement will be subject to termination by the Underwriters
by notice to the Company at any time at or prior to the Closing Date if (i)
there shall have occurred, subsequent to the date hereof, any material
adverse change, or any change in
17
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, whether or not arising in the
ordinary course of business; (ii) there has occurred any material adverse
change in the financial markets in the United States, or any outbreak or
escalation of hostilities or other international or national calamity or
crisis, in each case, involving the United States or the declaration by the
United States of a national emergency or war and, in each case, the effect
of which is such as to make it in the reasonable judgment of the
Underwriters, impracticable to market the Notes or to enforce contracts for
the sale of the Notes; (iii) trading in the Company's debt securities shall
have been suspended or materially limited by the Commission, any national
securities exchange or the Nasdaq National Market or trading in securities
generally shall have been suspended or materially limited, minimum or
maximum prices for trading shall have been established or maximum ranges
for prices shall have been required on any of such exchanges or by such
system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority or a material
disruption should have occurred in commercial banking, securities
settlement or clearance services in the United States; (iv) a banking
moratorium shall have been declared by Federal, Louisiana or New York State
authorities, or a material disruption shall have occurred in commercial
banking or securities settlement or clearance services in the United
States; (v) the rating assigned by any nationally recognized statistical
rating organization to the Notes or any other debt securities of the
Company as of the date hereof shall have been lowered or withdrawn since
the date hereof or if any such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its ratings of the Notes or any other such debt securities;
or (vi) there has come to the attention of the Underwriters any facts that
would cause the Underwriters to believe that the Prospectus, at the time it
was required to be delivered in connection with sales of the Notes,
included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances existing at the time of such delivery, not misleading.
(b) If this Agreement is terminated pursuant to this Section 7, such
termination shall be without liability of any party to any party except as
provided in Section 4(i) hereof, and provided further that Sections 4(i),
6, 9, and 12 shall survive such termination and remain in full force and
effect.
8. Default by One of the Underwriters. If one or more of the Underwriters
shall fail on the Closing Date to purchase the Notes that it is obligated to
purchase under this Agreement (the "Defaulted Securities"), the non-defaulting
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements for it, or any other underwriter, to purchase all, but not less
than all, of the Defaulted Securities upon the terms herein set forth. If,
however, the non-defaulting Underwriters shall not have completed such
arrangements within such 24-hour period, then:
(i) if the principal amount of Defaulted Securities does
not exceed 10% of the principal amount of Notes to be purchased
on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective obligations
hereunder bear to the obligations hereunder of all non-defaulting
Underwriters, or
18
(ii) if the principal amount of Defaulted Securities
exceeds 10% of the principal amount of Notes to be purchased on
such date, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 8 shall relieve the defaulting
Underwriter from liability in respect of its default.
In the event of any such default, either the non-defaulting Underwriters or
the Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8.
9. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Underwriters or the Company or any of the directors,
officers, employees, agents or controlling persons referred to in Section 6
hereof, and will survive delivery of and payment for the Notes. The provisions
of Section 4(i), 6 and 12 hereof and this Section 9 shall survive the
termination or cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered,
transmitted via facsimile or telegraphed and confirmed to BNY Capital Markets,
Inc., Attn: ▇▇▇ ▇▇▇▇▇▇▇, facsimile number : (▇▇▇) ▇▇▇-▇▇▇▇ (or such other place
as the Underwriters may specify in writing), or, if sent to the Company, will be
mailed, delivered, transmitted via facsimile or telegraphed and confirmed to the
Company at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Treasurer,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇ (or such other place as the Company may specify
in writing).
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors, the directors,
officers, employees, agents and controlling persons referred to in Section 6
hereof and no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter along with all counterparts will represent a binding agreement between
the Company and the Underwriters.
Very truly yours,
CLECO POWER LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date hereof.
BNY CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANC ONE CAPITAL MARKETS, INC.
By: /s/ C. Victor Manny
-----------------------------------------
Name: C. Victor Manny
Title: Managing Director
HIBERNIA SOUTHCOAST CAPITAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
20
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇.
Title: First Vice President
21
SCHEDULE I
PRINCIPAL AMOUNT OF
NAME OF UNDERWRITER NOTES
------------------- -----------
BNY Capital Markets, Inc. $45,000,000
Banc One Capital Markets, Inc. $22,500,000
Hibernia Southcoast Capital, Inc. $ 3,750,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. $ 3,750,000
-----------
$75,000,000
-----------
22
