Exhibit 1(a)
ENTERGY LOUISIANA, LLC
$[________]
First Mortgage Bonds
[___] % Series due [________], [20__]
UNDERWRITING AGREEMENT
[________], [20__]
[Name(s) of Underwriter(s)]
[Address(es) of Lead Underwriter(s)]
Ladies and Gentlemen:
The undersigned, Entergy Louisiana , LLC, a Texas limited liability company (the "Company"),
proposes to issue and sell severally to the underwriters set forth
in Schedule I attached hereto (the "Underwriters," which term, when
the context permits, shall also include any underwriters
substituted as hereinafter in Section 11 provided), for whom
[________] and [________] , are acting
as representatives (the "Representatives"), an aggregate of
$ [________] principal amount of the Company's First Mortgage
Bonds, [___] % Series
due [________], [20__]
(the "Bonds") in accordance with the terms set forth in this
Underwriting Agreement (this "Underwriting Agreement").
-
-
Purchase and Sale .
On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set
forth, the Company shall issue and sell to each of the
Underwriters, and each Underwriter shall purchase from the Company,
at the time and place herein specified, severally and not jointly,
the Bonds at [___]
% of the principal amount thereof, in the
principal amount set forth opposite the name of such Underwriter
in Schedule I
attached hereto.
-
Description of Bonds
. The Bonds shall be
issued under and pursuant to the Company's Mortgage and Deed of
Trust, dated as of April 1, 1944, with
The Bank of New York (successor to
Harris Trust Company
of New York), as Corporate Trustee, and Stephen
J. Giurlando (successor to Mark F. McLaughlin), as Co-Trustee (the
"Co-Trustee and, together with the Corporate Trustee, the
"Trustees"), as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, and as it
will be further amended and supplemented by the [_________] Supplemental
Indenture, dated as of [________], [20__]
(the "Supplemental Indenture"). Said Mortgage and Deed of Trust as so amended and
supplemented is hereinafter referred to as the "Mortgage." The Bonds and the Supplemental Indenture shall have
the terms and provisions described in the Disclosure Package (as defined
herein), provided that subsequent to the date hereof and prior to
the Closing Date (as defined herein) the form of the Supplemental
Indenture may be amended by mutual agreement between the Company
and the Underwriters.
-
Representations and Warranties of the
Company . The Company represents and
warrants to the several Underwriters, and covenants and agrees with
the several Underwriters, that:
-
-
The Company is duly organized and validly
existing as a limited liability company in good standing under the
laws of the State of Texas and has the
necessary limited liability company power and authority to conduct
the business that is described in the
Disclosure Package as
conducting and to own and operate the properties owned and operated
by it in such business and is in good standing
and duly qualified to conduct such business as a foreign limited
liability company in the State of
Louisiana.
-
The Company has filed with the Securities
and Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 333- [______] ) for the registration of $
400,000,000 aggregate offering price
of the Company's
securities, including the Bonds, under the
Securities Act of 1933 (the "Securities Act") ($ [_______] of which securities remain unsold as
of the date hereof), and such registration statement has become
effective. The Company qualifies for use of
Form S-3 for the registration of the Bonds,
and the Bonds are
registered under the Securities Act. At the time
of filing such registration statement and at the date hereof, the
Company was not and is not an "ineligible issuer" (as defined in
Rule 405 under the Securities Act). The
prospectus forming a part of such registration statement, at the
time such registration statement (or the most recent amendment
thereto filed prior to the Applicable Time (as defined below))
initially became
effective, including all documents incorporated by reference
therein at that time pursuant to Item 12 of Form S-3, is
hereinafter referred to as the "Basic Prospectus." In the event that (i) the Basic Prospectus shall
have been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to securities of the Company other than the
Bonds) prior to the Applicable Time,
including without limitation by any preliminary prospectus
supplement relating to the offering and sale of
the Bonds that is deemed to be part of and included in such
registration statement pursuant to Rule 430B(e) under the
Securities Act , or (ii) the Company
shall have filed documents pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") after the
time such registration statement (or the most recent amendment
thereto filed prior to the Applicable Time) became effective and
prior to the Applicable Time (but excluding documents incorporated
therein by reference relating solely to securities of the Company
other than the Bonds), which are
incorporated or deemed to be incorporated by reference in the Basic
Prospectus pursuant to Item 12 of Form S-3, the term "Basic
Prospectus" as used herein shall also mean such prospectus as so
amended, revised or supplemented and
reflecting such incorporation by reference . The
various parts of such registration
statement, in the form in which such parts became effective
and as such parts may
have been amended by all amendments thereto as of the Applicable
Time (including, for these purposes, as an amendment, any document
incorporated or deemed to be incorporated by reference in the Basic
Prospectus), and including any information
omitted from such registration statement at the time such part of
such registration statement became effective but that is deemed to
be part of such registration statement pursuant to Rule 430B
under the Securities Act are hereinafter referred to as the
"Registration Statement." The Basic Prospectus as it shall be
supplemented to reflect the terms of the offering and sale of the
Bonds by a prospectus supplement (dated the date hereof (together
with the Basic Prospectus, the "Prospectus Supplement")), to be
filed with the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)") is hereinafter referred to as the
"Prospectus."
-
(i) After the Applicable Time and during the
time specified in Section 6(e) hereof, the Company will not file
any amendment to the Registration Statement or any supplement to
the Prospectus (except any amendment or supplement relating solely
to securities of the Company other than the Bonds) or the
Disclosure Package, and (ii) between the Applicable Time and the
Closing Date, the Company will not file any document that is to be
incorporated by reference in, or any supplement to, the Basic
Prospectus, in either case, without prior notice to the
Underwriters and to Pillsbury Winthrop Shaw Pittman LLP ("Counsel
for the Underwriters"), or any such amendment or supplement to
which the Underwriters or said Counsel shall reasonably object on
legal grounds in writing. For purposes of this Underwriting
Agreement, any document that is filed with the Commission after the
Applicable Time and incorporated or deemed to be incorporated by
reference in the Prospectus or the Disclosure Package (except
documents incorporated by reference relating solely to securities
of the Company other than the Bonds) pursuant to Item 12 of Form
S-3 shall be deemed a supplement to the Prospectus or the
Disclosure Package.
-
The Registration Statement, as of the latest date as of which any part of the
Registration Statement relating to the Bonds became, or is deemed
to have become, effective under the Securities Act in accordance
with the rules and regulations of the Commission thereunder,
the Mortgage, at such time, and the Basic Prospectus, when delivered to the Underwriters for
their use in marketing the Bonds, fully
complied, and the Prospectus, at the time it is filed with the
Commission pursuant to Rule 424(b) and
at the Closing Date, as it may then be amended or supplemented,
will fully comply, in all material respects with the applicable
provisions of the Securities Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations did
or will be deemed to comply therewith. The
documents incorporated or deemed to be incorporated by reference in
the Basic Prospectus and the Prospectus pursuant to Item 12 of Form S-3, on
the date filed with the Commission pursuant to the Exchange Act,
fully complied or will fully comply in all material respects with
the applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder or pursuant to said rules
and regulations did or will be deemed to comply therewith. No such documents were filed with the Commission since
the Commission's close of business on the business day immediately
prior to the date of this Underwriting Agreement except as set
forth on Part C of Schedule II hereto or such other documents as
were delivered to you prior to the date of this Underwriting
Agreement. The Registration Statement did not , as of the latest date as of which any part of the
Registration Statement relating to the Bonds became, or is deemed
to have become, effective under the
Securities Act in accordance with the rules and regulations of the
Commission thereunder , contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time
that the Basic Prospectus was delivered to the
Underwriters for their use in marketing the
Bonds, the Basic Prospectus did not contain any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the time the
Prospectus is filed with the Commission pursuant to Rule 424(b)
and at the Closing Date, the Prospectus, as
it may then be amended or supplemented, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and,
on said dates and at such times, the documents then incorporated or
deemed to be incorporated by reference in the Basic Prospectus and the
Prospectus pursuant to Item 12 of Form S-3, when taken together with the Basic Prospectus and the
Prospectus, or the Prospectus, as it may then be amended or
supplemented, will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The
foregoing representations and warranties in this paragraph (d)
shall not apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the Company
by the Underwriters or on behalf of any Underwriter specifically
for use in connection with the preparation of the Registration
Statement , the Basic Prospectus or the Prospectus, as they may be then amended or
supplemented (it being understood and agreed
that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 9(b) hereof) , or to any
statements in or omissions from the statements of eligibility of
the Trustees on Form T-1 and Form T-2, as they may then be amended,
under the Trust Indenture Act filed as exhibits to the Registration
Statement (the "Statements of Eligibility").
-
The Disclosure Package, and each electronic
roadshow, if any, identified in Part B of Schedule II hereto, when
taken together with the Disclosure Package, do not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and the documents then incorporated or deemed to be
incorporated by reference in the Disclosure Package, when taken
together with the Disclosure Package, do not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package made in reliance upon and in conformity
with written information furnished to the Company by the
Underwriters or on behalf of any Underwriter specifically for use
in connection with the preparation of the Disclosure Package (it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 9(b) hereof). For
purposes hereof, (i) "Disclosure Package" shall mean (x) the Basic
Prospectus as amended or supplemented immediately prior to [__:__
.m. EST (__:__ .m. Central)] on the date of this Underwriting
Agreement (the time at which the Underwriters and the Company
agreed upon the pricing terms set forth in the final pricing term
sheet attached as Annex A to Schedule II to this Underwriting
Agreement) (the "Applicable Time") and (y) the Free Writing
Prospectuses, if any, identified in Part A of Schedule II hereto,
(ii) "Issuer Free Writing Prospectus" shall mean an issuer free
writing prospectus, as defined in Rule 433 under the Securities
Act, and (iii) "Free Writing Prospectus" shall mean a free writing
prospectus, as defined in Rule 405 under the Securities Act.
-
Each Issuer Free Writing Prospectus and the
final term sheet prepared and filed pursuant to Section 6(b) hereof
does not include any information that conflicts with the
information contained in the Registration Statement, the Basic
Prospectus or the Prospectus, including any document incorporated
or deemed to be incorporated by reference therein that has not been
superseded or modified. If there occurs an event or development as
a result of which the Disclosure Package would include an untrue
statement of a material fact or would omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will
notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented.
The foregoing two sentences do not apply to statements in or
omissions from the Disclosure Package in reliance upon and in
conformity with written information furnished to the Company by the
Underwriters on behalf of any Underwriter specifically for use in
connection with the preparation of the Disclosure Package (it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 9(b) hereof)
-
The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Mortgage
or any indenture or other agreement or
instrument to which the Company is now a party.
-
Except as set forth in or contemplated by the Disclosure Package ,
the Company possesses adequate franchises, licenses, permits, and
other rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of others
which could have a material adverse effect on the Company.
-
The Company maintains (x) systems of
internal controls and processes sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences;
and (y) disclosure controls and procedures (as defined in Rule
13a-15(e) under the Exchange Act).
-
Offering . The
Company is advised by the Underwriters that they propose to make a
public offering of their respective portions of the Bonds as soon after the
effectiveness of this Underwriting Agreement as in their judgment
is advisable. 9;
The Company is further advised by the
Underwriters that the Bonds will be offered to the public at the initial public offering
price specified in the Prospectus
Supplement plus accrued interest thereon, if any, from the Closing
Date.
-
Time and Place of Closing , ;
Delivery of the Bonds . Delivery of the Bonds
and payment of the purchase price therefor
by wire transfer of immediately available funds shall be made at
the offices of Thelen Reid & Priest LLP, 875 Third Avenue, New
York, New York, at 10:00 A.M., New York time, on [________], [20__], or at
such other time on the same or such other day as shall be agreed
upon by the Company and the Representatives, or as may be
established in accordance with Section 11 hereof. The hour and date of such delivery and payment are
herein called the "Closing Date."
The Bonds shall be delivered to
the Underwriters in book-entry only form through the facilities of
The Depository Trust Company in New York, New York. The certificate
for the Bonds shall
be in the form of one typewritten global
bond in fully registered form, in the
aggregate principal amount of the Bonds, and
registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company
agrees to make the Bonds available to the Underwriters for
checking not later than 2:30 P.M., New York time, on the last
business day preceding the Closing Date at such place as may be
agreed upon between the Underwriters and the Company, or at such
other time and/or date as may be agreed upon between the
Underwriters and the Company.
-
-
Covenants of the Company . The Company covenants and agrees with the several
Underwriters that:
-
-
Not later than the Closing Date, the
Company will deliver to the Underwriters a conformed copy of the
Registration Statement in the form that it or the most recent
post-effective amendment thereto became effective, certified by an
officer of the Company to be in such form.
-
The Company will prepare a final term
sheet, containing solely a description of the final terms of the
Bonds and the offering thereof, in a form approved by the
Representatives and will file such term sheet pursuant to Rule
433(d) under the Securities Act within the time required by such
Rule.
-
The Company will deliver to the
Underwriters as many copies of the Prospectus (and any amendments
or supplements thereto) and each Issuer Free
Writing Prospectus as the Underwriters
may reasonably request.
-
The Company will cause the Prospectus to be
filed with the Commission pursuant to and in compliance with Rule
424(b) (without reliance on Rule 424(b)(8) under
the Securities Act) and will advise the
Representatives ,
promptly of the issuance of any stop order under the Securities Act
with respect to the Registration Statement , any
Issuer Free Writing Prospectus, the Basic Prospectus or the
Prospectus or the institution of any
proceedings therefor or pursuant to Section 8A
of the Securities Act of which the
Company shall have received notice. The
Company will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof if
issued.
-
During such period of time as the
Underwriters are required by law to deliver a prospectus (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act)
after this Underwriting Agreement has
become effective, if any event relating to or affecting the
Company, or of which the Company shall be advised by the
Underwriters in writing, shall occur which in the Company's opinion
should be set forth in a supplement or amendment to the Prospectus
or the Disclosure Package in order to make the Prospectus or the Disclosure Package
not misleading in the light of the circumstances when it is
delivered (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the
Securities Act) to a purchaser of the
Bonds, the Company will amend or supplement
the Prospectus or the Disclosure Package
by either (i) preparing and filing with the
Commission and furnishing to the Underwriters a reasonable number
of copies of a supplement or supplements or an amendment or
amendments to the Prospectus or the Disclosure
Package , or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus or
the Disclosure Package , so that, as
supplemented or amended, it will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 under the Securities Act) or the Disclosure Package
is delivered to a purchaser, not
misleading. Unless such event relates
solely to the activities of the Underwriters (in which case the
Underwriters shall assume the expense of preparing any such
amendment or supplement), the expenses o f
complying with this Section 6 (e )
shall be borne by the Company until the expiration of nine months
from the time of effectiveness of this Underwriting Agreement, and
such expenses shall be borne by the Underwriters thereafter.
-
The Company will make generally available
to its security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of at least
twelve months beginning after the "effective date of the
registration statement" within the meaning of Rule 158 under the
Securities Act, which earning statement shall be in such form, and
be made generally available to security holders in such a manner,
as to meet the requirements of the last paragraph of Section 11
(a) of the Securities Act and Rule 158
under the Securities Act.
-
At any time within six months of the date
hereof, the Company will furnish such proper information as may be
lawfully required by, and will otherwise cooperate in qualifying
the Bonds for offer
and sale under, the blue sky laws of such jurisdictions as the
Underwriters may reasonably designate, provided that the Company
shall not be required to qualify as a foreign corporation or dealer
in securities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements deemed
by the Company to be unduly burdensome.
-
The Company will, except as herein
provided, pay all fees, expenses and taxes (except transfer taxes)
in connection with the offering of the Bonds,
including with respect to (i) the
preparation and filing of the Registration Statement and any
post-effective amendments thereto, (ii) the printing, issuance and
delivery of the Bonds and the preparation,
execution, printing and recordation of the Supplemental Indenture,
(iii) legal counsel relating to the qualification of the Bonds under the blue sky
laws of various jurisdictions in an amount not to exceed $3,500,
(iv) the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, the preliminary
(and any supplemental) blue sky survey, the
Basic Prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendment or supplement
thereto, except as otherwise provided in paragraph (e) of this
Section 6, (v) the rating of the Bonds
by one or more nationally recognized
statistical rating agencies, and (vi) filings or other notices (if
any) with or to, as the case may be, the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its review
of the terms of the offering. Except as
provided above, the Company shall not be required to pay any
expenses of the Underwriters, except that, if this Underwriting
Agreement shall be terminated in accordance with the provisions of
Section 7, 8 or 12 hereof, the Company will reimburse the
Underwriters for (A) the reasonable fees and expenses of Counsel
for the Underwriters, whose fees and expenses the Underwriters
agree to pay in any other event, and (B) reasonable out- - of- - pocket expenses in an
aggregate amount not exceeding $15,000, incurred in contemplation
of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated
profits.
-
The Company will not sell any additional
first mortgage bonds without the consent of the Representatives
until the earlier to occur of (i) the Closing Date and (ii) the
date of the termination of the fixed price offering restrictions
applicable to the Underwriters. The
Underwriters agree to notify the Company of such termination if it
occurs prior to the Closing Date.
-
As soon as practicable after the Closing
Date, the Company will make all recordings, registrations and
filings necessary to perfect and preserve the lien of the Mortgage
and the rights under the Supplemental Indenture, and the Company
will use its best efforts to cause to be furnished to the
Underwriters a supplemental opinion of counsel for the Company,
addressed to the Underwriters, stating that all such recordings,
registrations and filings have been made.
-
The Company agrees that, unless it has
obtained or will obtain, as the case may be, the prior written
consent of the Representatives, and each Underwriter, severally and
not jointly, agrees with the Company that, unless it has obtained
or will obtain, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating
to the Bonds that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing
Prospectus required to be filed by the Company with the Commission
or retained by the Company under Rule 433 under the Securities Act,
other than the final term sheet prepared and filed pursuant to
Section 6(b) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses identified in Parts A and B of Schedule
II hereto and any electronic road show identified in Part B of
Schedule II hereto. Any such Free Writing Prospectus consented to
by the Representatives or the Company is hereinafter referred to as
a "Permitted Free Writing Prospectus." The Company agrees that (x)
it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus and
(y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 under the Securities Act
applicable to any Permitted Free Writing Prospectus, including, if
applicable, in respect of timely filing with the Commission,
legending and record keeping.
-
Conditions of Underwriters' Obligations
.
The
obligations of the Underwriters to purchase and pay for the
Bonds shall be
subject to the accuracy on the date hereof and on the Closing Date
of the representations and warranties made herein on the part of
the Company and of any certificates furnished by the Company on the
Closing Date and to the following conditions:
-
-
-
The Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) prior to 5:30 P.M., New York
time, on the second business day following the date of this
Underwriting Agreement, or such other time and date as may be
agreed upon by the Company and the Underwriters. ; and the final term sheet contemplated by Section 6(b)
hereto and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Securities Act shall have been
filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433.
-
No stop order suspending the effectiveness
of the Registration Statement , or preventing or
suspending the use of the Basic Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, shall be
in effect at or prior to the Closing Date; no proceedings for such
purpose or pursuant to Section 8A of the
Securities Act against the Company or relating to the offering of
the Bonds shall be pending before, or,
to the knowledge of the Company or the Underwriters, threatened by,
the Commission on the Closing Date; and the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that, as of the Closing Date, no such stop order has been
or is in effect and that no proceedings for such purposes are pending before
or, to the knowledge of the Company, threatened by the
Commission.
-
At the Closing Date, there shall have been
issued and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, one or more orders of the Federal Energy Regulatory Commission under the Federal Power Act
authorizing the issuance and sale of the
Bonds on the terms set forth in, or
contemplated by, this Underwriting Agreement.
-
At the Closing Date, the Underwriters shall
have received from Clark, Thomas & Winters,
[________] , Esq., Senior Counsel
- Corporate and
Securities of Entergy Services, Inc. ,
and Thelen Reid & Priest LLP, opinions,
dated the Closing Date, substantially in the forms set forth in
Exhibits A , B and C hereto, respectively,
(i) with such changes therein as may be agreed upon by the Company
and the Underwriters with the approval of Counsel for the
Underwriters, and (ii) if the Disclosure Package
or the Prospectus shall be supplemented
after being furnished to the Underwriters for use in offering the
Bonds , prior to the
Closing Date , with changes therein to
reflect such supplementation.
-
At the Closing Date, the Underwriters shall
have received from Counsel for the Underwriters an opinion, dated
the Closing Date, substantially in the form set forth in Exhibit
D hereto, with such changes therein as may
be necessary to reflect any supplementation of the Disclosure Package or the
Prospectus prior to the Closing Date.
-
On or prior to the date this Underwriting
Agreement became effective, the Underwriters shall have received
from Deloitte & Touche LLP, the Company's independent
registered public accountants (the "Accountants"), a letter dated
the date hereof and addressed to the Underwriters to the effect
that (i) they are independent registered public accountants with
respect to the Company within the meaning of the Securities Act and
the applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules audited by them and included or incorporated by reference
in the Registration Statement, the Disclosure
Package and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the
applicable published rules and regulations thereunder; (iii) on the
basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 100, Interim
Financial Information, on the latest unaudited financial
statements, if any, included or incorporated by reference in the
Registration Statement, the Disclosure Package
and the Prospectus, a reading of the
latest available interim unaudited financial statements of the
Company, the minutes of the meetings of the Board of Directors of
the Company, the Executive Committee thereof, if any, other committees thereof specified therein and the stockholder of the Company, since December
31, [___] to a specified date not more than
three business days
prior to the date of such letter, and inquiries of officers of the
Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an audit made in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter and,
accordingly, that the Accountants make no representations as to the
sufficiency of such procedures for the purposes of the
Underwriters), nothing has come to their attention which caused
them to believe that, to the extent applicable, (A) the unaudited
financial statements of the Company (if any) included or
incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related published rules
and regulations thereunder; (B) any material modifications should
be made to said unaudited financial statements for them to be in
conformity with generally accepted accounting principles; (C) at
the date of the latest available balance sheet
read by the Accountants and at a subsequent specified date not more than three business days prior to the date of the letter, there was any
change in the capital stock of the Company, increase in long-term
debt of the Company, or decrease in its net current assets or
stockholders' equity, in each case as compared with amounts shown
in the most recent balance sheet incorporated by reference in the
Registration Statement, the Disclosure Package
and the Prospectus, except in all
instances for changes , increases or decreases which the
Registration Statement, the Disclosure Package or the Prospectus discloses have occurred or may
occur, for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of premium
on long-term debt, for any increases in
long-term debt in respect of previously issued pollution control,
solid waste disposal or industrial development revenue bonds, or
for changes , increases or decreases as set
forth in such letter, identifying the same and specifying the
amount thereof; and (D) for the period from the closing date of the
most recent income statement incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus
to the closing date of the latest available income statement read
by the Accountants, there were any decreases, as compared to the
corresponding period in the preceding year, in operating revenues,
operating income or net income, except in all instances for
decreases that the Registration Statement, the Disclosure Package
or the Prospectus discloses have occurred or may occur or decreases as set forth in such letter,
identifying the same and specifying the amount thereof; and (iv)
stating that they have compared specific dollar amounts,
percentages of revenues and earnings and other financial
information pertaining to the Company (x) set forth in the Registration Statement, the Disclosure Package and
the Prospectus, and (y) set forth in
documents filed by the Company pursuant to Section 13, 14 or 15(d)
of the Exchange Act as specified in Exhibit D hereto, in each case, to
the extent that such amounts, numbers, percentages and information
may be derived from the general accounting records of the Company,
and excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in such letter, and found them
to be in agreement.
-
At the Closing Date, the Underwriters shall
have received a certificate, dated the Closing Date and signed by
the President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) as of the Closing
Date, the representations and warranties of the Company contained
herein are true and correct, (ii) the Company has performed and
complied with all agreements and conditions in this Underwriting
Agreement to be performed or complied with by the Company at or
prior to the Closing Date and (iii) since the most recent date as
of which information is given in the Prospectus, as it may then be
amended or supplemented, there has not been any material adverse
change in the business, property or financial condition of the
Company and there has not been any material transaction entered
into by the Company, other than transactions in the ordinary course
of business, in each case other than as referred to in, or
contemplated by, the Prospectus, as it may then be amended or
supplemented.
-
At the Closing Date, the Underwriters shall
have received duly executed counterparts of the Supplemental
Indenture.
-
At the Closing Date, the Underwriters shall
have received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than three business days prior to the Closing Date, the statements
contained in the letter delivered pursuant to Section 7(f)
hereof.
-
Between the date hereof and the Closing
Date, no default (or an event which, with the giving of notice or
the passage of time or both, would constitute a default) under the
Mortgage (as defined therein) shall have occurred.
-
On or prior to the
Closing Date, the Underwriters shall have received from the Company
evidence reasonably satisfactory to the Underwriters that the
Bonds have received
ratings of at least [___] from Moody's Investors Service, Inc. and at least
[___] from Standard
& Poor's Ratings Services.
-
Between the date hereof and the Closing
Date, neither Moody's Investors Service, Inc. nor Standard &
Poor's Ratings Services shall have lowered its rating of any of the
Company's outstanding first mortgage bonds
in any respect.
-
Between the date hereof and the Closing
Date, no event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of the
Representatives ,
materially impairs the investment quality of the Bonds.
-
All legal matters in connection with the
issuance and sale of the Bonds shall be satisfactory in form and substance to
Counsel for the Underwriters.
-
The Company shall furnish the Underwriters
with additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the
conditions specified in this Section 7 shall not have been
fulfilled, this Underwriting Agreement may be terminated by the
Representatives at any time on or prior to the
Closing Date upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in paragraph
( h ) of Section 6
and in Section 10 hereof.
-
-
Conditions of Company's Obligations
. The obligations of the Company hereunder
shall be subject to the following conditions:
-
-
No stop order suspending the effectiveness
of the Registration Statement or preventing or
suspending the use of the Basic Prospectus, the Prospectus or any
Issuer Free Writing Prospectus shall be
in effect at or prior to the Closing Date, and no proceedings for
that purpose or pursuant to Section 8A of the
Securities Act against the Company or relating to the offering of
the Bonds shall be pending before, or
threatened by, the Commission on the Closing Date.
-
At the Closing Date, there shall have been
issued and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, one or
more orders of the Federal Energy Regulatory Commission under the
Federal Power Act authorizing the issuance and sale of the Bonds on
the terms set forth in, or contemplated by, this Underwriting
Agreement.
In case any of
the conditions specified in this Section 8 shall not have been
fulfilled, this Underwriting Agreement may be terminated by the
Company at any time on or prior to the Closing
Date upon notice thereof to the
Representatives. Any such termination shall
be without liability of any party to any other party, except as
otherwise provided in paragraph ( h ) of Section 6 and in Section 10 hereof.
-
-
Indemnification.
-
-
The Company shall indemnify, defend and
hold harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all
losses, claims, damages or liabilities, joint or several, to which
each Underwriter or any or all of them may become subject under the
Securities Act or any other statute or common law and shall
reimburse each Underwriter and any such controlling person for any
legal or other expenses (including to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or liabilities
or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
or upon any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus , the Prospectus, or any Issuer Free Writing Prospectus
or the information contained in the final term sheet required to be
prepared and filed pursuant to Section 6(b) hereof , as
each may be amended or supplemented, in the
Disclosure Package or the omission or
alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the indemnity agreement
contained in this paragraph shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of,
or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity
with information furnished herein or in writing to the Company by
such Underwriter specifically for use in connection with the
preparation of the Registration Statement, the Basic Prospectus
, the Prospectus
or any Issuer Free Writing Prospectus or any amendment or supplement to any
thereof or the Disclosure Package (it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 9(b) hereof) or arising out of, or based upon, statements in or
omissions from the Statements of Eligibility; and provided further,
that the indemnity agreement contained in this subsection shall not
inure to the benefit of any Underwriter ,
or to the benefit of any person controlling
such Underwriter ,
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Bonds to any person in
respect of the Basic Prospectus or any Issuer
Free Writing Prospectus , each as may be then supplemented or
amended, furnished by such Underwriter to a person to whom any of
the Bonds were sold
(excluding in all
cases, however, any document then
incorporated by reference therein), insofar as such indemnity
relates to any untrue or misleading statement or omission made in
such Basic Prospectus or Issuer Free Writing
Prospectus, if a copy of a supplement or amendment to such Basic
Prospectus, or Issuer Free Writing Prospectus (excluding in all
cases, however, any document then incorporated by reference therein) (i) is
furnished on a timely basis by the Company
to the Underwriter, (ii) is required to have been conveyed to such
person by or on behalf of such Underwriter, at or prior to the
Applicable Time, but was not so conveyed (which conveyance may be
oral (if permitted by law) or written) by or on behalf of such
Underwriter and (iii) would have cured the defect giving rise to
such loss, claim, damage, liability, expense or action .
-
Each Underwriter shall indemnify, defend and hold harmless the
Company, its directors and officers and each person who controls
the foregoing within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each of them
for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any action, insofar as
such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
or upon any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus , the Prospectus or any Issuer Free Writing Prospectus,
or any amendment or supplement thereto, or in the Disclosure
Package or the omission or alleged
omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case, if, but
only if, such statement or omission was made in reliance upon and
in conformity with information furnished herein or in writing to
the Company by such Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus , the
Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement thereto or the Disclosure Package. The Company acknowledges that
the statements set forth in [_______________] in the Prospectus
Supplement constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in the
Registration Statement, the Basic Prospectus, the Prospectus, any
Issuer Free Writing Prospectus and the Disclosure Package.
-
In case any action shall be brought, based
upon the Registration Statement, the Basic Prospectus , the Prospectus , any Issuer Free Writing Prospectus or the Disclosure
Package , against any party in respect
of which indemnity may be sought pursuant to either of the preceding
paragraphs, such party (hereinafter called the indemnified party)
shall promptly notify the party or parties against whom indemnity
shall be sought hereunder (hereinafter called the indemnifying
party) in writing, and the indemnifying party shall have the right
to participate at its own expense in the defense of any such action
or, if it so elects, to assume (in conjunction with any other
indemnifying party) the defense thereof, including the employment
of counsel reasonably satisfactory to the indemnified party and the
payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the indemnified
party for the reasonable fees and expenses of any counsel retained
by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the named
parties to any such action (including any impleaded parties)
include each of such indemnified party and the indemnifying party
and such indemnified party shall have been advised by such counsel
that a conflict of interest between the indemnifying party and such
indemnified party may arise and for this reason it is not desirable
for the same counsel to represent both the indemnifying party and
the indemnified party (it being understood, however, that the
indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for such indemnified party
(plus any local counsel retained by such indemnified party in its
reasonable judgment)). The indemnified
party shall be reimbursed for all such fees and expenses as they
are incurred. The indemnifying party shall
not be liable for any settlement of any such action effected
without its consent, but if any such action is settled with the
consent of the indemnifying party or if there be a final judgment
for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could
have been a party and indemnity has or could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action,
suit or proceeding.
-
If the indemnification provided for under
subsections (a) or
(b) in this Section 9 is unavailable to an
indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Bonds or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (after deducting
underwriting disc
|
