Exhibit 1
Cleco Power LLC
$100,000,000 Medium-Term Notes, Series C
Due One Year or More from Date of Issue
Selling Agency Agreement
April 26, 2001
New York, New York
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
12th Floor
New York, NY 10080
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Banc One Capital Markets, Inc.
1 Bank One Plaza
Suite IL1-0595
10th Floor
Chicago, IL 60670
Dear Sirs:
Cleco Power LLC, a Louisiana limited liability company (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of its Medium-Term Notes, Series C due one year or more from Date of
Issue (the "Notes"). As of the date hereof, the Company has authorized the
issuance of up to $100,000,000 aggregate principal amount of Notes distributed
through or sold to you pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such notes may be distributed through or
sold to you pursuant to the terms of this Agreement, all as though the issuance
of such Notes were authorized as of the date hereof. The Notes will be issued
under 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, and the Third Supplemental
Indenture dated as of the date hereof, and as it may from time to time hereafter
be 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"). Unless otherwise set forth in a
supplement to the prospectus referred to below, the Notes will be issued in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof, will be issued only in fully registered form and will have the annual
interest rates, maturities and, if appropriate, other terms set forth in such
supplement to the Prospectus. The Notes will be issued, and the
terms thereof established, in accordance with the Indenture (unless a Terms
Agreement (as defined in Section 2(b)) modifies or otherwise supersedes the
procedures with respect to the Notes issued pursuant to such Terms Agreement).
For the purposes of this Agreement, the term "Agent" shall refer to any of you
acting solely in the capacity as agent for the Company pursuant to Section 2(a)
and not as principal (collectively, the "Agents"), the term "Purchaser" shall
refer to one of you acting solely as principal pursuant to Section 2(b) and not
as agent, and the term "you" shall refer to you collectively whether at any time
any of you is acting in both such capacities or in either such capacity. The
Company, the successor by merger to Cleco Utility Group Inc., and those of you
that were party to the Selling Agency Agreement dated December 12, 1996, as
amended, agree and acknowledge that such Selling Agency Agreement is hereby
terminated.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, you as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form, including a basic prospectus, which has been
declared effective by the Commission (Reg. No. 333-52540), for the
registration under the 1933 Act of the Notes. Such registration statement,
as amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(x) under the 1933 Act. In connection with the sale of
Notes the Company proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the 1933 Act further supplements
to the Prospectus specifying the interest rates, maturity dates and, if
appropriate, other terms of the Notes sold pursuant hereto or the offering
thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of each acceptance by the Company of an offer for the purchase of Notes
(whether to an Agent as principal or through an Agent as agent) and as of
the date of delivery of Notes (whether to an Agent as principal or an Agent
as agent) (a "Closing Date") (each of the times referenced above being
referred to hereafter as a "Representation Date"):
(i) 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.
(ii) Subsidiaries. The Company has no "Significant
Subsidiaries", as such term is defined in Rule 405 of Regulation C of
the rules and regulations under the 1933 Act (the "1933 Act
Regulations").
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in
all material respects
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with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
rules and regulations of the Commission promulgated thereunder. The
Registration Statement, at the time it became effective, did not, and
at each time thereafter at which any amendment to the Registration
Statement becomes effective and any Annual Report on Form 10-K is filed
by the Company with the Commission and as of the applicable
Representation 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 the date hereof does not, and as of the applicable
Representation 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 any of you expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which constitutes the Trustee's Statement of Eligibility and
Qualification under the 1939 Act (the "Form T-1").
(iv) 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
Securities Exchange Act of 1934, as amended (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,
did not and 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, in the light of the
circumstances under which they were or are made, not misleading.
(v) 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.
(vi) Financial Statements. The financial statements and
supplemental schedules 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.
(vii) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement and
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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.
(viii) 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.
(ix) Regulatory Approvals. The Louisiana Public Service
Commission (the "LPSC") has authorized or, prior to any offering or
sale of Notes by the Company, will have authorized, the issuance and
sale of the Notes then being so offered or sold; 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 ("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.
(x) 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 or 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.
(xi) 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
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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.
(xii) 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.
(xiii) Authorization and Validity of the Notes. When issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or in any Terms Agreement, the
Notes will have been duly authorized for issuance and sale pursuant to
this Agreement and 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 will be substantially in the form
heretofore delivered to you and 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.
(xiv) Issuance of Notes. 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 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; the Company has full legal right, power and authority to
enter into this Agreement and, upon any offer or sale by the Company of
the Notes, shall have full legal right, power and authority to offer,
issue, sell and deliver such Notes.
(xv) 1935 Act. 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.
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(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective or the date of filing any
Annual Report on Form 10-K. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto. The
registration statement referred to in paragraph (a) above and the
prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including in each case all documents incorporated
therein by reference, as from time to time amended or supplemented by the
filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the
"Prospectus", respectively. Additionally, however, and notwithstanding
anything herein to the contrary, every reference herein to "registration
statement" or "Registration Statement" shall, for all purposes hereof
(including, but not limited to, the reading of each applicable
representation and warranty and of each agreement with respect to
indemnification and contribution), include and be deemed to refer to any
further registration statements (and amendments and supplements thereto)
which may be filed by the Company for the purpose of registering additional
Notes and in connection with which this Agreement is included as an
exhibit.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions
set forth herein, the Company hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the Notes from the
Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto). Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not, except as otherwise provided in this Agreement, be
obligated to disclose the identity of any purchaser or have any liability to the
Company in the event any such purchase is not consummated for any reason.
Except as provided in Section 2(b), under no circumstances will any Agent be
obligated to purchase any Notes for its own account. It is understood and
agreed, however, that any Agent may purchase Notes as principal pursuant to
Section 2(b). If the purchase price for any Note is not timely paid with
respect to such Note by the beneficial purchaser thereof (or a person, including
an indirect participant in The Depository Trust Company, acting on behalf of
such purchaser), the settlement with respect to such Note will be reversed. If
such failure shall have occurred for any reason other than a default by the
Agent that prevented such beneficial purchaser in the performance of its
obligations hereunder, then the Company will reimburse such Agent on an
equitable basis for the loss of the use of the funds during the period when they
were credited to the account of the Company.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
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that such solicitation may be resumed. In the event that at the time the
Company suspends solicitation of purchases there shall be any orders outstanding
for settlement, the Company will promptly advise the Agents and the Trustee
whether such orders may be settled and whether copies of the Prospectus as in
effect at the time of the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the settlement of such orders.
The Company will have the sole responsibility for such decision and for any
arrangements that may be made in the event that the Company determines that such
orders may not be settled or that copies of such Prospectus may not be so
delivered.
The Company agrees to pay such Agent a commission, on the Closing Date with
respect to each sale of Notes by the Company as a result of a solicitation made
by such Agent, in an amount equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes so sold by the Company.
Subject to the provisions of this Section, offers for the purchase of Notes
may be solicited by an Agent as agent for the Company at such time and in such
amounts as such Agent deems advisable, subject to rejection by the Company of
any such offer. The Company may from time to time offer Notes for sale
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect the Company shall not solicit or accept offers to
purchase Notes through any agent other than an Agent, except, in connection with
offers to purchase Notes received by the Company through any agent other than an
Agent, the Company may accept any such offer made through such agent so long as
the Company gives the Agents reasonable prior notice of such acceptance and any
such agent enters into an agreement with the Company on terms which are
substantially similar to those contained or incorporated in this Agreement.
Each Agent shall communicate to the Company, orally or in writing, each
reasonable offer to purchase Notes received by such Agent as agent. The Company
shall have the sole right to accept offers to purchase the Notes and may reject
any such offer in whole or in part.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold each
of you harmless against any loss, claim or damage arising from or as a result of
such default by the Company.
(b) The Agents shall not have any obligation to purchase Notes from the
Company as principal. However, absent an agreement between an Agent and the
Company that such Agent shall be acting solely as an agent for the Company, such
Agent shall be deemed to be acting as principal in connection with any offering
of Notes by the Company through such Agent. Subject to the terms and conditions
stated herein, whenever the Company and any Agent determine that the Company
shall sell Notes directly to such Agent as principal, each such sale of Notes
shall be made in accordance with the terms of this Agreement and a supplemental
agreement relating to such sale between the Company and the Purchaser. Each
such supplemental agreement (which may be an oral or written agreement) is
herein referred to as a "Terms Agreement." Each Terms Agreement shall describe
(whether orally or in writing) the Notes to be purchased by the Purchaser
pursuant thereto and shall specify the principal amounts of such Notes, the
aggregate principal amount of such Notes, the maturity date of such Notes, the
rate at which interest will be paid on such Notes, the dates on which interest
will be paid on such Notes and the record date with respect to each such payment
of interest, the Closing Date for the purchase of such Notes,
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the place of delivery of the Notes and payment therefor, the method of payment,
whether the Notes will be redeemable at the option of the Company or any holder
thereof and whether the delivery of opinions of counsel, certificates from the
Company or its officers or a letter from the Company's independent public
accountants as described in Section 6(b) will be required. Any such Terms
Agreement may also specify the period of time referred to in Section 4(m). Any
written Terms Agreement may be in the form attached hereto as Exhibit A. The
Purchaser's commitment to purchase Notes shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth.
Delivery of the Notes sold to the Purchaser pursuant to a Terms Agreement
shall be made not later than the Closing Date agreed to in such Terms Agreement,
against payment of funds to the Company in the net amount due to the Company for
such Notes by the method and in the form agreed to between the Company and the
Purchaser.
Unless otherwise agreed to between the Company and the Purchaser in a Terms
Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser
at a price equal to 100% of the principal amount thereof less a percentage equal
to the commission applicable to an agency sale of a Note of identical maturity
and (ii) may be resold by such Purchaser at varying prices from time to time.
In connection with any resale of Notes purchased, a Purchaser may use a selling
or dealer group and may reallow any portion of the discount or commission
payable pursuant hereto to dealers or other purchasers.
(c) No provision contained in this Agreement shall impair the right of the
Company, which shall be absolute, to solicit on its own behalf and accept offers
to purchase Notes, and in no such event shall commissions be payable to an Agent
except in the case of the issuance and sale of a Note resulting from a
solicitation made by such Agent.
3. Offering and Sale of Notes. Settlement procedures shall be agreed to by
the Company and the Agents from time to time, provided, that upon the acceptance
of an offer to purchase Notes, whether as an Agent as principal or an Agent as
agent, such Agent shall deliver to the Company the terms of any such purchase as
soon as practicable after the determination of such terms. Each of you and the
Company agrees to perform the respective duties and obligations agreed to
pursuant to the immediately preceding sentence.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination or suspension of the offering of the
Notes (including by way of resale by a Purchaser of Notes), the Company
will not file any amendment to the Registration Statement or supplement to
the Prospectus (except for (i) periodic or current reports filed under the
1934 Act, or (ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity dates, interest
rates, issuance prices or other similar terms of any Notes) unless the
Company has furnished each of you a copy for your review prior to filing
and given each of you a reasonable opportunity to comment on any such
proposed amendment or supplement. Each of you shall make your responses
thereto, if any, promptly. Subject to the penultimately preceding sentence,
the Company will cause each supplement to the
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Prospectus relating to an offering of Notes that is to be filed pursuant to
the applicable paragraph of Rule 424(b) under the 1933 Act to be filed with
the Commission within the time period prescribed by such rule and will
provide evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when, prior to the termination of the offering of the Notes, any
amendment of the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iv) 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 (v) 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 use its reasonable best efforts to prevent the issuance of
any such stop order 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 as then supplemented would include any untrue
statement of a material fact or omit to state any 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 each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of you
shall forthwith suspend such solicitation and any sales of Notes any of you
may hold as principal and cease using the Prospectus as then supplemented),
(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 each of you in such quantities as you
may reasonably request. You will, upon the filing of such amendment or
supplement with the Commission or upon the effectiveness of an amendment to
the Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder, subject to the
second paragraph of Section 2 hereof.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the 1933 Act, 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 each of you
copies of such documents. In addition, 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 each of you the information contained or to be
contained in such announcement or document. The Company also will furnish
to each of you copies of all other material press releases or announcements
to the general public. The
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Company will immediately notify each of you of (i) 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 1933 Act) or (ii) 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.
(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 each of you 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) The Company will furnish to each of you and your counsel, without
charge, copies of the Registration Statement (including exhibits thereto)
as you may reasonably request and, so long as delivery of a prospectus may
be required by the 1933 Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request so long as you are
required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(f) The Company will endeavor, in cooperation with the Agents, to
arrange for the qualification of the Notes for sale under the laws of such
jurisdictions of the United States of America as any of you may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Notes, and will endeavor, in cooperation with the
Agents, to arrange for the determination of the legality of the Notes for
purchase by institutional investors; provided, however, that the Company
shall 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 shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company reasonably related to the Company's business in the context
of a distribution of the Notes, the Registration Statement, the Prospectus,
and any amendments thereof or supplements thereto, the Indenture, the
Notes, this Agreement and the performance by the Company and you of its and
your respective obligations hereunder and thereunder as any of you may from
time to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) 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 and this Agreement, the cost
of preparing, printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel for the Agents, incurred in
compliance with Section 4(f), the fees and disbursements of the Trustee and
the fees of any agency that rates the Notes, (ii) reimburse each of you as
requested for all reasonable out-of-pocket expenses (including
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without limitation advertising expenses), if any, incurred by you with the
approval of the Company in connection with this Agreement and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection with
this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to constitute
an additional representation, warranty and agreement by the Company that,
as of the settlement date for the sale of such Notes, after giving effect
to the issuance of such Notes and of any other Notes to be issued on or
prior to such settlement date, the aggregate amount of Notes which have
been issued and sold by the Company will not exceed the amount of
securities registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement relating
to a Current Report on Form 8-K (unless in the reasonable judgment of the
Agents, the information contained therein is material to the offering of
the Notes) providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other similar
terms of any Notes sold pursuant hereto or relating to a sale of Notes
directly to a purchaser by the Company on its own behalf), the Company will
deliver or cause to be delivered promptly to each of you a certificate of
the Company, signed by the President or the Executive Vice President and
the principal financial or accounting officer of the Company, dated the
date of the effectiveness of such amendment or the date of the filing of
such supplement, in form reasonably satisfactory to you, of the same tenor
as the certificate referred to in Section 5(f) but modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement or, in lieu thereof, a certificate stating that
the statements in the last such certificate are true and correct at the
time of such amendment or supplement, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such time).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
providing solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other similar terms of
any Notes sold pursuant hereto, (ii) relating to a sale of Notes directly
to a purchaser by the Company on its own behalf or (iii) relating to a
Current Report on Form 8-K (unless in the reasonable judgment of the
Agents, the information contained therein is material to the offering of
the Notes)), the Company shall furnish or cause to be furnished promptly to
each of you written opinions of counsels of the
11
Company last furnishing the opinions referred to in Sections 5(b) and 5(c)
hereof or other counsel satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, in your reasonable
judgment, of the same tenor as the opinions referred to in Sections 5(b)
and 5(c), supplemented as required by Section 5(e), but modified to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement or, in lieu of such opinions, Baker Botts L.L.P.,
Phelps Dunbar, L.L.P. or each such other counsel who last rendered such a
written opinion, may furnish each of you with a letter to the effect that
you may rely on such last opinion to the same extent as though it were
dated the date of such letter authorizing reliance (except that statements
in such last opinion will be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, in your reasonable
judgment, of the same tenor as the letter referred to in Section 5(g) with
such changes as may be necessary to reflect the amended and supplemental
financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to
the date of such letter; provided, however, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the scope
of such letter, which shall be satisfactory in form to each of you, in your
reasonable judgment, to the unaudited financial statements, the related
portions of "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and any other information of an accounting,
financial or statistical nature included in such amendment or supplement,
unless, in the reasonable judgment of any of you, such letter should cover
other information or changes in specified financial statement line items.
(m) During the period between the date of a Terms Agreement and the
Closing Date applicable to such Terms Agreement, the Company shall not,
without the prior consent of the Purchaser thereunder, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by the
Company (other than the Notes being sold pursuant to such Terms Agreement,
commercial paper in the ordinary course of business or any bank
borrowings).
(n) The Company shall not be required to comply with the provisions of
subsections (b), (c), (g) and (l) of this Section 4 during any period from
the time (i) the Agents shall have suspended solicitation or purchases of
the Notes in their capacity as agents pursuant to a request from the
Company and (ii) none of you shall then hold any Notes as principal
purchased pursuant to a Terms Agreement, to the time the Company
12
shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with one or
more of you.
5. Conditions to the Obligations of the Agents. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date with
respect to any Terms Agreement, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); 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) The Company shall have furnished to each Agent the opinion of
Baker Botts L.L.P., counsel for the Company, or other counsel satisfactory
to each Agent, dated the Execution Time, to the effect that:
(i) This Agreement (including the Terms Agreement, if
applicable) 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 enforceability hereof 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).
(ii) Assuming that the Indenture has been duly executed and
delivered by the Trustee, the 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 notes attached as Exhibit A (floating rate
book-entry/certificated note) and Exhibit B (fixed rate book-
entry/certificated note) to the supplemental indenture of the Company
of even date herewith delivered to the Trustee in accordance with
Sections 201 and 303 of the Indenture (the "Specimen Note") are in the
forms and contain the terms required by the Indenture, and such Note in
the form of a Specimen Note, when such Note has been executed by the
Company and authenticated by the Trustee as specified in the Indenture,
will on the date of its issuance (assuming no change in the facts or in
the law and governmental rules and regulations in either case in
existence on the date hereof)
13
properly evidence the indebtedness represented thereby. When each Note
has been executed by the Company and authenticated by the Trustee as
specified in the Indenture and delivered against payment of the
consideration therefor determined in accordance with this Agreement
(and the Terms Agreement, if applicable), it will be on its date of
issuance (assuming no change in the facts or in the law and
governmental rules and regulations in either case in existence on the
date hereof) a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, and will
be entitled to the benefit of the Indenture, subject only to the
exceptions stated in clause (ii) above.
(iv) The execution and delivery of the Indenture and this
Agreement (or a Terms Agreement, if applicable) by the Company and,
assuming no change in facts existing on the date hereof, the execution
and delivery of the Notes by the Company and the performance by the
Company of its agreements therein or herein will not (a) breach or
otherwise violate any order known to them 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.
(v) The terms and provisions of each Specimen Note conform in
all material respects to the descriptions thereof contained in the
Registration Statement and Prospectus.
(vi) 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 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 or in the Indenture.
(vii) (a) The Registration Statement has become effective under
the 1933 Act and, to their 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; (b) 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 face 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 and the 1933 Act Regulations, to the
extent that such requirements, rules and regulations are applicable to
the forms thereof.
14
(viii) They 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.
(ix) They 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.
(x) 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
certain voting securities of other domestic public utility companies
and utility holding companies.
(xi) The Indenture is qualified under the 1939 Act.
(xii) 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 them and is correct in all
material respects.
(xiii) 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 face 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, Baker Botts L.L.P. may rely as to matters of
Louisiana law upon the opinion of Phelps Dunbar, L.L.P., or such other
satisfactory counsel, as referred to below.
(c) The Company shall have furnished to each Agent the opinion of
Phelps Dunbar, L.L.P., special Louisiana counsel for the Company, or other
counsel satisfactory to each Agent, dated the Execution Time, 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 their knowledge, after due inquiry, there is no
jurisdiction where the character of the properties owned or the nature
of the business conducted by the Company makes necessary the license or
qualification of the Company as a foreign limited liability company.
15
(iii) This Agreement (and the Terms Agreement, if applicable) has
been duly authorized, executed and delivered by the Company.
(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.
(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 is being 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 or in the Indenture.
(vii) The Company is subject to the jurisdiction of the LPSC and
must obtain the prior approval by the LPSC of the issuance of Notes
with maturities that exceed one year. The order of the LPSC with
respect to the issuance of the Company's debt securities described
therein is in full force and effect as of the date of the opinion being
rendered.
(viii) To their 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.
(ix) The execution and delivery of the Indenture and this
Agreement (or a Terms Agreement, if applicable) by the Company and,
assuming no change in facts existing on the date hereof, the execution
and delivery of 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 them to which the Company
is a party or by which it is bound, (b) breach or otherwise violate any
order known to them 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
16
governmental body or instrumentality of the State of Louisiana having
jurisdiction over the Company or its properties.
(x) The issuance and sale of Notes with maturities that exceed
one year do not require approval of the FERC under the provisions of
the FPA.
(d) Each Agent shall have received from Brown & Wood LLP, counsel for
the Agents, or other counsel satisfactory to each Agent, such opinion or
opinions, dated the date hereof, with respect to matters set forth in
clauses (v), (vii), and (xi) of subparagraph (b) of this Section 5 and to
the effect that:
(i) Assuming that the execution and delivery by the Company of
this Agreement have been duly authorized by all necessary limited
liability company action on the part of the Company, this Agreement
(including the Terms Agreement, if applicable) 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
enforceability hereof 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).
(ii) Assuming that the execution and delivery by the Company of
the Indenture have been duly authorized by all necessary limited
liability company action on the part of the Company, the 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 notes attached as Exhibit A (floating rate
book-entry/certificated note) and Exhibit B (fixed rate book-
entry/certificated note) to the supplemental indenture of the Company
of even date herewith delivered to the Trustee in accordance with
Sections 201 and 303 of the Indenture are in the forms and contain the
terms required by the Indenture, and such Note in the form of a
Specimen Note, when such Note has been executed by the Company and
authenticated by the Trustee as specified in the Indenture, will on the
date of its issuance (assuming no change in the facts or in the law and
governmental rules and regulations in either case in existence on the
date hereof) properly evidence the indebtedness represented thereby.
Assuming that the execution and delivery of the Notes have been duly
authorized by all necessary limited liability company action on the
part of the Company, when each Note has been executed by the Company
and authenticated by the Trustee as specified in the Indenture and
delivered against payment of the consideration therefor determined in
accordance with this Agreement (and the Terms Agreement, if
applicable), it will be on its
17
date of issuance (assuming no change in the facts or in the law and
governmental rules and regulations in either case in existence on the
date hereof) a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, and will
be entitled to the benefit of the Indenture, subject only to the
exceptions stated in clause (ii) above.
(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, Brown & Wood LLP may rely as to matters of
Louisiana law upon the opinion of Phelps Dunbar, L.L.P., or such other
satisfactory counsel, as referred to above.
(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 would lead them to believe that (a) the
Registration Statement, at the time it became effective, and if an
amendment to the Registration Statement or an Annual Report on Form 10-K
has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such filing
(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 amended or
supplemented at the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 6(b) hereof) at the
date of any Terms Agreement and at the Closing Date with respect thereto,
as the case may be (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), contains an
untrue statement of a material fact 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) At the date hereof and at each Closing Date with respect to any
Terms Agreement, there shall not have been, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus or since the date of such Terms Agreement, 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 Agents 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
18
the other representations and warranties of the Company contained in
Section 1 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 his knowledge, no proceedings for that purpose have
been initiated or threatened by the Commission.
(g) On the date hereof, the Agents shall have received a letter from
the Company's independent accountants dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect that:
(i) they are independent public accountants as required by the
1933 Act and the 1933 Act Regulations;
(ii) that, in their opinion, the financial statements and
supporting schedules audited by them and incorporated by reference in
the Registration Statement and covered by their opinion in the
Company's most recent Annual Report on Form 10-K comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations;
(iii) that on the basis of a reading of the latest available
unaudited interim financial statements prepared by the Company, a
reading of all minutes of meetings of the members, the Board of
Managers and the Executive and Audit Committees of the Board of
Managers of the Company, discussions with officers of the Company
responsible for financial and accounting matters, and other specified
procedures described in such letter, nothing came to their attention
which caused them to believe that (A) as of the date of the latest
available unaudited interim financial statements prepared by the
Company, there was any change in the membership interests or long-term
debt of the Company, except for any maturities of the Company's first
mortgage bonds and notes and purchases thereof by the Company to meet
sinking fund provisions relating thereto, or any decrease in its net
assets, in each case as compared with amounts shown in the most recent
balance sheet information contained in or incorporated by reference in
the Registration Statement, or (B) for the twelve-month period ending
on the date of the latest available unaudited interim financial
statements prepared by the Company there was any decrease, as compared
with the twelve-month period ended the last day of the Company's last
fiscal year in operating revenues, operating income, income before
interest charges or net income, except in all instances for changes or
decreases which the Registration Statement discloses have occurred or
may occur;
(iv) that on the basis of inquiries of officers of the Company
responsible for financial and accounting matters and a reading of the
minutes as described above, nothing has come to their attention which
caused them to believe
19
that (A) at a specified date not more than five business days prior to
the date of such letter there was any change in the membership
interests or long-term debt of the Company or any decrease in its net
assets as compared with the amounts shown in the latest available
unaudited financial statements, (B) for the period from the date of the
latest available unaudited financial statements to a specified date not
more than five business days prior to the date of such letter there was
any decrease as compared with the corresponding period in the preceding
year in operating revenues, or (C) for a period of twelve months ended
on a specific date not more than five business days prior to the date
of such letter there was any decrease as compared with the
corresponding period of the preceding year in operating revenues,
operating income, income before interest charges or net income, except
in all instances for changes or decreases which the Registration
Statement discloses have occurred or may occur and except for any
maturities of the Company's first mortgage bonds and notes and
purchases thereof by the Company to meet sinking fund provisions
relating thereto;
(v) that the ratios of earnings to fixed charges set forth in
the Prospectus under the caption "Selected Financial Information" (and
in any supplement to the Prospectus under the caption "Selected
Financial Information: Additional Information", if applicable) are
arithmetically correct and that the computation of said ratios complies
as to form in all material respects with the 1933 Act Regulations; and
(vi) the results of carrying out specified procedures, described
in such letter, performed for the purpose of comparing specified
financial information (which is limited to financial information
derived from general accounting records of the Company) set forth in
certain sections of the Registration Statement or incorporated therein
by reference with the financial statements or accounting records of the
Company, excluding any questions of legal interpretation.
(h) Other Documents. On the date hereof and on each Closing Date with
respect to any applicable Terms Agreement, counsel to the Agents 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 Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and 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 Notes as herein contemplated shall
be satisfactory in form and substance in the reasonable judgment of the
Agents and to counsel to the Agents.
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 any of
the Agents as to itself and any Terms Agreement may be terminated by the
Purchaser or Purchasers party thereto by notice to the Company at any time and
any such termination shall be without liability of any party to any other party,
except that the covenant set forth in Section 4(d) hereof, the provisions of
Section 4(h) hereof, the indemnity and contribution agreement set forth in
Section 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain
in effect.
20
6. Conditions to the Obligations of the Purchaser. The obligations of the
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observances by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) 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) To the extent agreed to in writing between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the
Closing Date, to the effect set forth in Section 5(f) (except that
references to the Prospectus shall be to the Prospectus as supplemented as
of the date of such Terms Agreement), (ii) the opinion of Baker Botts
L.L.P. counsel for the Company, or other counsel satisfactory to each
Agent, dated as of the Closing Date, to the effect set forth in Section
5(b) and 5(e), or in lieu of such opinion, Baker Botts L.L.P. or other
counsel satisfactory to each of you may furnish each of you with a letter,
dated as of the Closing Date, authorizing reliance to the effect set forth
in Section 5(b) hereof, (iii) the opinion of Phelps Dunbar, L.L.P., special
Louisiana counsel for the Company, or other counsel satisfactory to each
Agent, dated as of the Closing Date, to the effect set forth in Section
5(c), or in lieu of such opinion, Phelps Dunbar, L.L.P. or other counsel
satisfactory to each of you may furnish each of you with a letter, dated as
of the Closing Date, authorizing reliance to the effect set forth in
Section 5(c) hereof, (iv) the opinion of Brown & Wood LLP, counsel for the
Purchaser, or other counsel satisfactory to the Purchaser, dated as of the
Closing Date, to the effect set forth in Section 5(d) and 5(e), and (v) the
letter of the independent accountants for the Company, dated as of the
Closing Date, to the effect set forth in Section 5(g).
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and an
applicable Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement and required to be
delivered to the Purchaser pursuant to the terms hereof and thereof shall not be
in all material respects reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and all obligations of the
Purchaser thereunder and with respect to the Notes subject thereto may be
canceled at, or at any time prior to, the respective Closing Date by the
Purchaser. Notice of such cancellation shall be effective when given to the
Company in writing by mail or facsimile transmission or by telephone confirmed
in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note
pursuant to a solicitation by any of the Agents shall have the right to refuse
to purchase such Note if, at the Closing Date therefor, any condition set forth
in Section 5 or 6, as applicable, shall not be satisfied.
21
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of you, the directors, officers, employees and agents of
each of you and each person who controls each of you 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 you, they or any of you or them 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 i n
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 any of you
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 you severally agrees to indemnify and hold harmless the
Company, each of its managers, each of its officers who signs the Registration
Statement and each person, if any, who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, to the same extent as the foregoing
indemnity from the Company to you, but only with reference to written
information relating to such of you furnished to the Company by or on behalf of
such of you specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which you may otherwise have. The Company acknowledges that the
statements set forth in the sixth paragraph and the last paragraph under the
heading "Plan of Distribution," of the Prospectus constitute the only
information furnished in writing by any of you for inclusion in the documents
referred to in the foregoing indemnity, and you confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section 8 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 8, 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
22
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 the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their 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 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 8 is held unenforceable or is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and each of you
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 one or more of you may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by each of you from
the offering of the Notes from which such Losses arise; provided, however, that
in no case shall any of you be responsible for any amount in excess of the
commissions received by such of you in connection with the Notes from which such
Losses arise (or, in the case of Notes sold pursuant to a Terms Agreement, the
aggregate commissions that would have been received by such of you if such
commissions had been payable). If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and each of you
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of each of you
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 of you shall be deemed to be equal to the total
commissions received by such of you in connection with the Notes from which such
Losses arise (or, in the case of Notes sold pursuant to a Terms Agreement, the
aggregate commissions that would have been received by such of you if such
commissions had been payable). Relative fault shall be determined by reference
to whether any alleged untrue statement or omission
23
relates to information provided by the Company or any of you. The Company and
each of you 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 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls any of you within the meaning of the 1933 Act or the 1934 Act and
each director, officer, employee and agent of any of you shall have the same
rights to contribution as you 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).
9. Termination; Amendment. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be terminated
by either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, by giving written notice of such termination to such of
you or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party so terminated shall have any liability to any other party so terminated,
except as provided in the fourth paragraph of Section 2(a), Section 4(d),
Section 4(h), Section 8, Section 10 and Section 13. This Agreement may be
amended by the written agreement of the parties hereto.
(b) Each Terms Agreement (whether oral or written) shall be subject to
termination by the Purchaser, by notice given to the Company prior to delivery
of any payment for any Note to be purchased thereunder, if prior to such time
(i) there shall have occurred, subsequent to the agreement to purchase such
Note, any material adverse change, or any change in 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, if such Notes are denominated and/or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development or event involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of such
Agent(s), impracticable to market such Notes or enforce contracts for the sale
of such Notes, (iii) trading in the Company's common stock shall have been
suspended by the Commission or a national securities exchange or trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Pacific Stock Exchange shall have been suspended or minimum prices shall
have been established on either of such Exchanges, (iv) a banking moratorium
shall have been declared either by Federal or Louisiana or New York State
authorities, or (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 of such agreement shall have been lowered or withdrawn since that
date or if any such rating organization shall have publicly announced that it
has under surveillance or review its ratings of the Notes or any other such debt
securities, or (vi)
24
there shall have come to the attention of such Agent(s) any facts that would
cause such Agent(s) to believe that the Prospectus, at the time it was required
to be delivered to a purchaser of such Notes, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statement therein, in the light of the circumstances existing at the time of
such delivery, not misleading.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of each of you 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 any of you or the Company or any of the directors, officers,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
4(d), 4(h), 8 and 13 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement. The provisions of this Agreement applicable to
any purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If at the
time of termination of this Agreement any Purchaser shall own any Notes with the
intention of selling them, the provisions of Section 4 shall remain in effect
until such Notes are resold.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of you, will be mailed, delivered,
transmitted via facsimile or telegraphed and confirmed to such of you, at the
address specified in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered, transmitted via facsimile or telegraphed and confirmed to it
at the address specified in Schedule I hereto.
12. Successors. This Agreement will 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 8 hereof and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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 shall represent a binding agreement among the
Company and each of you.
Very truly yours,
25
CLECO POWER LLC
By:___________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:___________________________
Name:
Title:
Salomon Smith Barney Inc.
By:___________________________
Name:
Title:
Banc One Capital Markets, Inc.
By:___________________________
Name:
Title:
26
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
---- ---------------
From 1 year but less than 18 months................................ .150%
From 18 months but less than 2 years............................... .200%
From 2 years but less than 3 years................................. .250%
From 3 years but less than 4 years................................. .350%
From 4 years but less than 5 years................................. .450%
From 5 years but less than 6 years................................. .500%
From 6 years but less than 7 years................................. .550%
From 7 years but less than 8 years................................. .600%
From 8 years but less than 9 years................................. .600%
From 9 years but less than 10 years................................ .600%
From 10 years but less than 15 years............................... .625%
From 15 years but less than 20 years............................... .700%
From 20 years to 30 years.......................................... .750%
In excess of 30 years.............................................. *
* To be negotiated at the time of sale.
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notice:
Notices to Cleco Power LLC shall be directed to it at 2030 Donahue Ferry
Road, Pineville, LA 71360, Attention of Treasurer.
Notices to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated shall be directed to it at 4 World Financial Center, 12th Floor,
New York, NY 10080, Attention of the Medium-Term Note Department.
Notices to Salomon Smith Barney Inc. shall be directed to it at 388
Greenwich Street, New York, New York 10013, Attention of the Medium-Term Note
Department.
Notices to Banc One Capital Markets, Inc. shall be directed to it at 1 Bank
One Plaza, Suite IL1-0595, 8th Floor, Chicago, Illinois 60670, Attention of
Medium-Term Note Administrator.
27
EXHIBIT A
CLECO POWER LLC
Medium Term Notes, Series C
Due One Year or More from Date of Issue
TERMS AGREEMENT
, 2001
Attention:
Subject in all respects to the terms and conditions of the Selling Agency
Agreement (the "Agency Agreement") dated [_________], 2001, among Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney
Inc., Banc One Capital Markets, Inc. and you, the undersigned agrees to purchase
the following Notes of Cleco Power LLC
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued interest
from 2001]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in the requirements to
deliver the documents specified in Section 6(b)
of the Agency Agreement:
A-1
Period during which additional Notes may not
be sold pursuant to Section 4(m) of the Agency
Agreement:
Redemption Provision (if any):
[Purchaser]
By _____________________
Accepted:
By _____________________
A-2