EXHIBIT 1.1
Cleco Power LLC
$25,000,000
6.125% Insured Quarterly Notes
due March 1, 2017
Underwriting Agreement
January 30, 2002
New York, New York
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, Missouri 63131
Attention: Mr. Kevin Sprouse
Dear Ladies and Gentlemen:
Cleco Power LLC, a Louisiana limited liability company (the "Company")
confirms its agreement with Edward D. Jones & Co., L.P. (the "Underwriter") as
follows:
1. Offering. The Company proposes to issue and sell to the
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Underwriter an aggregate principal amount of $25,000,000 of its 6.125% Insured
Quarterly Notes due March 1, 2017 (the "IQ Notes"). The IQ 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 and the Fourth Supplemental
Indenture to be dated as of February 1, 2002 (the "Fourth 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 IQ 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 IQ
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 IQ 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 IQ 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 IQ 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 (other than the preliminary
prospectus dated December 4, 2001 which was filed with the Commission on
December 4, 2001 pursuant to Rule 424(b)(5) under the 1933 Act Regulations) 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 Underwriter 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 ("EDGAR").
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 IQ Notes; Closing. Subject to the terms
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and conditions and based upon the representations and warranties set forth in
this Agreement, the Company agrees to issue and sell $25,000,000 aggregate
principal amount of IQ Notes to the Underwriter and the Underwriter agrees to
purchase from the Company such aggregate principal amount of the IQ Notes at a
price of 97.85% of the principal amount thereof.
The Underwriter agrees to make a public offering of the IQ Notes at
the public offering price and upon the terms and conditions set forth in the
Prospectus.
Payment of the purchase price for, and delivery of certificates for,
the IQ Notes, shall be made at the offices of Sidley Austin Brown Wood LLP, 875
Third Avenue, New York, New York, or at such other place as shall be agreed upon
by the Underwriter and the Company, at 9:00 a.m., St. Louis time, on February 8,
2002, or on such later day and time (not later than ten full business days
thereafter) as may be agreed upon in writing between the Underwriter 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 Underwriter for its account of global certificates for the IQ Notes being
purchased by the Underwriter.
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Global certificates for the IQ Notes shall be in such denominations
($1,000 or integral multiples thereof) and registered in such names as the
Underwriter may request in writing at least one full business day before the
Closing Date. The IQ Notes will be made available for examination and, if
applicable, packaging by the Underwriter 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
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warrants to the Underwriter 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
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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
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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
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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
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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
Underwriter 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").
(e) Incorporated Documents. The documents incorporated by
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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
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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
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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
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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
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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
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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
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Commission (the "LPSC") has authorized the issuance and sale of the IQ
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 ("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 IQ Notes pursuant to this Agreement.
(k) Legal Proceedings. Except as described in the Registration
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Statement, there is no material litigation or governmental proceeding
involving or, to the knowledge
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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
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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
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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 IQ Notes. The IQ Notes
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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
IQ Notes and the Indenture conform in all material respects to all
statements relating thereto contained in the Prospectus; and the IQ
Notes will be entitled to the benefits provided by the Indenture.
(o) Authorization of this Agreement. This Agreement has been
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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 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
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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
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exception of the Fourth 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 Fourth Supplemental Indenture has been duly authorized by
the Company and, when executed and delivered by the Company prior to
the time the IQ 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) 1935 Act. Based upon the timely filing by Cleco Corporation,
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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.
(r) Insurance Policy. The Company has duly authorized all
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necessary action to be taken by it for the procurement of an
irrevocable financial guarantee insurance policy for the IQ Notes (the
"Insurance Policy") issued by Ambac Assurance Corporation ("Ambac"),
insuring the payment of principal of and interest on the IQ Notes when
due.
4. Agreements of the Company. The Company agrees with the
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Underwriter that:
(a) At any time when a prospectus relating to the IQ 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 1934 Act) unless the Company has furnished the Underwriter a copy
for its review prior to filing and given the Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement.
The Underwriter 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
Underwriter, setting forth the principal amount of IQ Notes and
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their terms not otherwise specified in the base prospectus, the
Underwriter's name, the price at which the IQ Notes are to be
purchased by the Underwriter from the Company, the initial offering
price, the selling concession and reallowance, if any, and such other
information as the Underwriter and the Company deem appropriate in
connection with the offering of the IQ Notes. The Company will
promptly cause the Prospectus to be filed with the 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 Underwriter of such filing. The Company will
promptly advise the Underwriter (i) at any time when a prospectus
relating to the IQ 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 IQ 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 IQ 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 Underwriter, (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 Underwriter in such quantities as
the Underwriter may reasonably request.
(c) During the period when a prospectus relating to the IQ 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 Underwriter 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 Underwriter the information contained or to be contained
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in such announcement or document, (iii) the Company will furnish to
the Underwriter copies of all other material press releases or
announcements to the general public, and (iv) the Company will
immediately notify the Underwriter of (a) any decrease in the rating
of the IQ 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 (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.
(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
Underwriter 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 Underwriter is required to deliver a
prospectus in connection with sales of the IQ Notes, the Company will
furnish to the Underwriter and its counsel, without charge, such
copies of the Registration Statement (including exhibits thereto) and
Prospectus as the Underwriter may reasonably request.
(f) The Company will endeavor, in cooperation with the
Underwriter, to arrange for the qualification of the IQ Notes for sale
under the laws of such jurisdictions of the United States of America
as the Underwriter may designate, will maintain such qualifications in
effect so long as required for the distribution of the IQ 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 IQ Notes in the manner set forth under the caption "The IQ Notes
Offering" in the Prospectus.
(h) The Company will not, during the period of 30 days from the
date on which the IQ Notes are purchased by the Underwriter, sell,
offer to sell, grant any option for the sale of, or otherwise dispose
of any IQ Notes, any security convertible into or exchangeable into or
exercisable for the IQ Notes or any debt securities substantially
similar to the IQ Notes, without the prior written consent of the
Underwriter.
(i) The Company shall, whether or not any sale of the IQ 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 Underwriter, the cost
of preparing, printing, packaging and delivering the IQ 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
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Notes, and any fees payable in connection with the acceptance of the
IQ Notes for clearance and settlement through the facilities of The
Depository Trust Company. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section
7(a)(i) hereof, the Company shall reimburse the Underwriter for all of
its reasonable out-of-pocket expenses relating to the offer and sale
of the IQ Notes contemplated by this Agreement, including the
reasonable fees and disbursements of counsel for the Underwriter
incurred in connection therewith.
5. Conditions of the Underwriter's Obligations. The obligations of
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the Underwriter to purchase and pay for the IQ 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 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
Underwriter the opinion of Baker Botts L.L.P., counsel for the
Company, or other counsel satisfactory to the Underwriter, 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 Fourth
Supplemental Indenture, has been duly authorized, executed
and delivered by the Trustee, the Indenture, including the
Fourth 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);
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(iii) The specimen note attached as Exhibit A to
the Fourth Supplemental Indenture is in the form and
contains the terms required by the Indenture;
(iv) Assuming that the IQ 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 IQ Notes
constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, and the IQ 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 IQ 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 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 IQ 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 IQ Notes or the
performance by the Company of its agreements in this
Agreement, the Indenture or the IQ 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
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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 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 IQ Notes" and "Description of
the Debt Securities", to the extent that it constitutes a
summary of certain provisions of the Indenture or the IQ
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, 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. Additionally, Baker
Botts L.L.P. may state in its opinion that it does not express any
opinion with respect to any statements contained in or incorporated by
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reference in the Registration Statement and the Prospectus relating to
Ambac or the Insurance Policy.
(c) On the Closing Date, the Company shall have furnished to the
Underwriter the opinion of Phelps Dunbar, L.L.P., special Louisiana
counsel for the Company, or other counsel satisfactory to the
Underwriter, 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 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;
(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;
(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 IQ Notes and the IQ 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 IQ 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 IQ Notes, or the performance by the Company of its
agreements in this Agreement, the Indenture or the IQ Notes;
(vii) The Company is subject to the jurisdiction of
the LPSC, the LPSC has authorized the issuance and sale of
the IQ 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 IQ Notes are in full
force and effect as of the date hereof;
(viii) To our knowledge, the Company has valid and
subsisting franchises, consents, certificates and permits,
free from burdensome
12
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 IQ 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 governmental body or instrumentality
of the State of Louisiana having jurisdiction over the
Company or its properties.
In giving such opinion, Phelps Dunbar, L.L.P. may state in its opinion
that it 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 Ambac or the Insurance Policy.
(d) On the Closing Date, the Underwriter shall have received
from Sidley Austin Brown & Wood LLP, counsel for the Underwriter, 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
Fourth Supplemental Indenture, has been duly authorized,
executed and delivered by each of the Company and the
Trustee, the Indenture, including the Fourth Supplemental
Indenture, constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in
13
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 Fourth Supplemental Indenture of the Company delivered
to the Trustee in accordance with Sections 201 and 303 of
the Indenture, is in the form and contains the terms
required by the Indenture; assuming that the IQ Notes have
been duly authorized, executed and delivered by the Company
and assuming further that the IQ Notes have been duly
authenticated by the Trustee as specified in the Indenture
delivered against payment of the consideration therefor
determined in accordance with this Agreement, the IQ 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 IQ Notes are entitled to the benefits of the
Indenture; and
(iv) The information in the Prospectus under the
captions "Description of the IQ Notes" and "Description of
the Debt Securities", to the extent that it constitutes a
summary of certain provisions of the Indenture or the IQ
Notes, has been reviewed by us and is correct in all
material respects.
In giving such opinion, Sidley Austin 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.
Additionally, such counsel may state in its opinion that such counsel's
opinions are expressed solely with respect to statements contained in
or 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, Ambac or the Insurance Policy.
(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
(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
14
(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 Underwriter 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 Underwriter shall have received a
letter from the Company's independent accountants dated as of the date
hereof in form and substance satisfactory to the Underwriter.
(h) On the Closing Date, the Underwriter shall have received a
letter from the Company's independent accountants dated as of the
Closing Date in form and substance satisfactory to the Underwriter,
confirming as of the Closing Date their letter dated the date hereof
and delivered to the Underwriter pursuant to Section 5(g) hereof.
(i) On the Closing Date, the Underwriter shall have received
from counsel for Ambac an opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriter with respect to the
description of Ambac in the Prospectus and with respect to the
Insurance Policy.
(j) On the Closing Date, the Underwriter shall have received a
certificate, dated the Closing Date, signed by an officer of Ambac in
form and substance satisfactory to the Underwriter.
(k) On the Closing Date, the Underwriter shall have received in
form satisfactory to it confirmation that the IQ Notes have been rated
"AAA" by Standard & Poor's, a Division of The McGraw-Hill Companies,
Inc. and "Aaa" by Moody's Investors Service, Inc.
15
(l) On the Closing Date, the Underwriter shall have received
evidence that the Insurance Policy has been issued by Ambac with terms
agreed upon by the Company, Ambac and the Underwriter.
(m) On the date hereof and on the Closing Date, counsel for the
Underwriter 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 IQ 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 IQ Notes as herein contemplated shall be satisfactory in
form and substance in the reasonable judgment of the Underwriter and
its 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 Underwriter 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, 8 and 11 shall survive any such termination and remain in full force
and effect.
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the
Underwriter, the directors, officers, employees and agents of the
Underwriter and each person who controls the Underwriter 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
Underwriter, the directors, officers, employees and agents of the
Underwriter and each person who controls the 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 Underwriter 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.
16
(b) The Underwriter agrees 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 meaning of either the 1933 Act or the 1934 Act, to
the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to written information relating to
the Underwriter furnished to the Company by or on behalf of the
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 Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the third paragraph, the
second sentence of the fourth paragraph and the sixth paragraph under
the heading "Underwriting," of the Prospectus constitute the only
information furnished in writing by the Underwriter for inclusion in
the documents referred to in the foregoing indemnity, and the
Underwriter confirms 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
17
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 6 is held unenforceable or is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriter 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
Underwriter may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Underwriter from the offering of the IQ Notes from which such Losses
arise; provided, however, that in no case shall the Underwriter be
responsible for any amount in excess of the underwriting discount
received by the Underwriter in connection with the IQ Notes from which
such Losses arise. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriter 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 Underwriter 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 IQ Notes from which such Losses arise, and
benefits received by the Underwriter shall be deemed to be equal to the
total underwriting discount received by the Underwriter in connection
with the IQ 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
Underwriter. The Company and the Underwriter 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 6, each person who controls the Underwriter within the meaning
of the 1933 Act or the 1934 Act and each director, officer, employee
and agent of the Underwriter shall have the same rights to contribution
as the Underwriter 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).
18
7. Termination.
-----------
(a) This Agreement will be subject to termination by the
Underwriter 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 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 has occurred, 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 Underwriter, impracticable to
market the IQ Notes or to enforce contracts for the sale of the IQ
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 Stock Market or trading in securities
generally shall have been suspended or materially limited or minimum or
maximum prices for trading shall have been established on any of such
exchanges; (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 IQ 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 its ratings of the IQ Notes or any
other such debt securities; or (vi) there has come to the attention of
the Underwriter any facts that would cause the Underwriter to believe
that the Prospectus, at the time it was required to be delivered in
connection with sales of the IQ 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, 8, and 11 shall survive such termination and remain
in full force and effect.
8. Survival of Certain Provisions. The respective agreements,
------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriter 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 Underwriter 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 IQ Notes. The
provisions of Section 4(i), 6 and 11 hereof and this Section 8 shall survive the
termination or cancellation of this Agreement.
9. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered, transmitted via facsimile or telegraphed and confirmed to the
Underwriter at 12555 Manchester Road, St. Louis, Missouri
19
63131, Attn: Mr. Kevin Sprouse, facsimile number : (314) 515-2664 (or such other
place as the Underwriter 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 2030 Donahue Ferry Road, Pineville, Louisiana 71360,
Attn: Treasurer, facsimile number: (318) 484-7685 (or such other place as the
Company may specify in writing).
10. 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.
11. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York.
20
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 Underwriter.
Very truly yours,
CLECO POWER LLC
By: /s/ KATHLEEN F. NOLEN
--------------------------------------------
Name: Kathleen F. Nolen
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date hereof.
EDWARD D. JONES & CO., L.P.
By: /s/ KEVIN E. SPROUSE
-------------------------------------------------
Name: Kevin E. Sprouse
Title: Director
21