Exhibit 1.1
EXECUTION
COPY
CLECO KATRINA/RITA
HURRICANE RECOVERY FUNDING LLC
CLECO POWER
LLC
$180,600,000 2008
SENIOR SECURED STORM RECOVERY BONDS
UNDERWRITING
AGREEMENT
February 28,
2008
To the Representatives
named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Ladies and
Gentlemen:
1.
Introduction . Cleco Katrina/Rita Hurricane Recovery
Funding LLC, a Louisiana limited liability company (the
“Issuer”), proposes, subject to the terms and
conditions stated herein, to issue and sell $180,600,000 aggregate
principal amount of its 2008 Senior Secured Storm Recovery Bonds
(the “Bonds”), identified in Schedule I hereto, to
the Underwriters named in Schedule II hereto. The Issuer
and Cleco Power LLC, a Louisiana limited liability company and the
Issuer’s direct parent (“CPL”), hereby confirm
their agreement with the several Underwriters (as defined below) as
set forth herein.
The
term “Underwriters” as used herein shall be deemed to
mean the entity or several entities named in Schedule II
hereto and any underwriter substituted as provided in
Section 6 hereof and the term “Underwriter” shall
be deemed to mean any one of such Underwriters. If the entity
or entities listed in Schedule I hereto (the
“Representatives”) are the same as the entity or
entities listed in Schedule II hereto, then the terms
“Underwriters” and “Representatives”, as
used herein, shall each be deemed to refer to such entity or
entities. All obligations of the Underwriters hereunder are
several and not joint. If more than one entity is named in
Schedule I hereto, any action under or in respect of this
underwriting agreement (“Underwriting Agreement”) may
be taken by such entities jointly as the Representatives or by one
of the entities acting on behalf of the Representatives and such
action will be binding upon all the Underwriters.
Capitalized terms used and not otherwise
defined in this Underwriting Agreement shall have the meanings
given to them in the Indenture (as defined below).
2.
Description of the Bonds . The issuance of the Bonds
is authorized by the Financing Order (the “Financing
Order”), as issued by the Louisiana Public Service Commission
(the “LPSC”) on September 17, 2007, in accordance
with The Louisiana Electric Utility Storm Recovery Securitization
Act, codified at Louisiana Revised Statutes 45:1226-1236 (the
“Securitization Act”). The Bonds will be issued
pursuant to an indenture to be dated as of March 6, 2008, as
supplemented by the First Supplemental Indenture thereto (as so
supplemented, the “Indenture”), between the Issuer and
U.S. Bank National Association, as trustee (the
“Trustee”).
The
Bonds will be senior secured obligations of the Issuer and will be
supported by storm recovery property (as more fully described in
the Financing Order, “Storm Recovery Property”), to be
sold to the Issuer by CPL pursuant to the Storm Recovery Property
Sale Agreement, to be dated on or about March 6, 2008, between
CPL and the Issuer (the “Sale Agreement”). The
Storm Recovery Property securing the Bonds will be serviced
pursuant to the Storm Recovery Property Servicing Agreement, to be
dated on or about March 6, 2008, between CPL, as servicer, and
the Issuer, as owner of the Storm Recovery Property sold to it
pursuant to the Sale Agreement (the “Servicing
Agreement”).
3.
Representations and Warranties of the Issuer . The
Issuer represents and warrants to the several Underwriters
that:
(a)
The Issuer and the Bonds meet the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the
“Securities Act”), and the Issuer in its capacity as
co-registrant and issuing entity with respect to the Bonds and CPL,
in its capacity as co-registrant and as sponsor for the Issuer, has
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on such form on
November 2, 2007 (Registration Nos. 333-147122 and
333-147122-01), as amended by Amendment No. 1 thereto dated
February 22, 2008, including a prospectus and a form of
prospectus supplement, for the registration under the Securities
Act of up to $181,000,000 aggregate principal amount of the
Bonds. Such registration statement, as amended
(“Registration Statement No. 333-147122”), has
been declared effective by the Commission and no stop order
suspending such effectiveness has been issued under the Securities
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Issuer, threatened by the
Commission. No bonds registered with the Commission under the
Securities Act pursuant to Registration Statement
No. 333-147122 have been previously issued. References
herein to the term “Registration Statement” shall be
deemed to refer to Registration Statement No. 333-147122,
including any amendment thereto, all documents incorporated by
reference therein pursuant to Item 12 of Form S-3
(“Incorporated Documents”) and any information in a
prospectus or a prospectus supplement deemed or retroactively
deemed to be a part thereof pursuant to Rule 430B
(“Rule 430B”) or 430C
(“Rule 430C”) under the Securities Act that has
not been superseded or modified. “Registration
Statement” without reference to a time means the Registration
Statement as of the Applicable Time (as defined below), which the
parties agree is the time of the first contract of sale (as used in
Rule 159) for the Bonds, and shall be considered the
“Effective Date” of the Registration Statement relating
to the Bonds. For purposes of this definition, information
contained in a form of prospectus or prospectus supplement that is
deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430B or 430C shall be considered to be
included in the Registration Statement as of the time specified in
Rule 430B or 430C as appropriate. The final prospectus
and the final prospectus supplement relating to the Bonds, as filed
with the Commission pursuant to Rule 424(b) under the
Securities Act, are referred to herein as the “Final
Prospectus;” and the most recent preliminary prospectus and
prospectus supplement that omitted information to be included upon
pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) under the Securities Act and that was used
after the initial effectiveness of the Registration
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Statement and prior to the Applicable Time (as
defined below) is referred to herein as the “Pricing
Prospectus.”
(b)
(i) At the earliest time after the filing of the Registration
Statement that the Issuer or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of
the Securities Act) of the Bonds, and (ii) at the date hereof,
the Issuer was not and is not an “ineligible issuer,”
as defined in Rule 405 under the Securities Act.
(c)
At the time the Registration Statement initially became effective,
at the time of each amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether by
post effective amendment, incorporated report or form of
prospectus) and on the Effective Date relating to the Bonds, the
Registration Statement, and the Indenture, at the Closing Date,
fully complied and 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,
in each case, the applicable instructions, rules and
regulations of the Commission thereunder; the Registration
Statement, at the date it initially became effective and at the
Effective Date, did not contain and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, not misleading. As of the Applicable Time and as of
the Closing Date (as defined below), the Final Prospectus fully
complied and will fully comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission
thereunder, and such document will not contain a 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 the Incorporated Documents, taken together as a whole,
fully complied or will fully comply in all material respects with
the applicable provisions of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and the applicable
rules and regulations of the Commission thereunder; provided
that the foregoing representations and warranties in this paragraph
(c) shall not apply to statements or omissions made in
reliance upon information furnished in writing to the Issuer or CPL
by, or on behalf of, any Underwriter through the Representatives
expressly for use in connection with the preparation of the
Registration Statement or the Final Prospectus, or to any
statements in or omissions from any Statements of Eligibility on
Form T-1 (or amendments thereto) of the Trustee under the
Indenture filed as exhibits to the Registration Statement or
Incorporated Documents or to any statements or omissions made in
the Registration Statement or the Final Prospectus relating to The
Depository Trust Company (“DTC”) Book Entry System that
are based solely on information contained in published reports of
DTC.
(d)
As of its date, at the Applicable Time (as defined below), on the
date of its filing, if applicable, and on the Closing Date, the
Pricing Prospectus and each Issuer Free Writing Prospectus (as
defined below) (other than the Pricing Term Sheet, as defined in
Section 5(b) below), considered together, did not include
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 (except that (i) the principal amount of the Bonds,
the tranches, the initial principal
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balances, the scheduled final payment dates,
the final maturity dates, the expected average lives, the Expected
Amortization Schedule and the Expected Sinking Fund Schedule
described in the Pricing Prospectus were subject to change based on
market conditions and supersede any previously issued descriptions
of such information and (ii) the interest rate, price to the
public and underwriting discounts and commissions for each tranche
was not included in the Pricing Prospectus). The Pricing Term
Sheet, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Bonds, considered
together with the Pricing Prospectus and each other Issuer Free
Writing Prospectus, did not include 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 circumstance in
which they are made, not misleading. The two preceding
sentences do not apply to statements in or omissions from the
Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free
Writing Prospectus in reliance upon and in conformity with written
information furnished to the Issuer or CPL by any Underwriter
through the Representatives specifically for use therein.
“Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in
Rule 433(h) of the Securities Act, relating to the Bonds,
in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the
Issuer’s records pursuant to Rule 433(g) of the
Securities Act. References to the term “Free Writing
Prospectus” shall mean a free writing prospectus, as defined
in Rule 405 under the Securities Act. References to the term
“Applicable Time” mean 9:36 AM, eastern time, on
the date hereof, except that if, subsequent to such Applicable
Time, the Issuer, CPL and the Underwriters have determined that the
information contained in the Pricing Prospectus or any Issuer Free
Writing Prospectus issued prior to such Applicable Time included an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances in which they were made, not misleading
and have terminated their old purchase contracts and entered into
new purchase contracts with purchasers of the Bonds, then
“Applicable Time” will refer to the first of such times
when such new purchase contracts are entered into. The Issuer
represents, warrants and agrees that it has treated and agrees that
it will treat each of the free writing prospectuses listed on
Schedule III hereto as an Issuer Free Writing Prospectus, and
that each such Issuer Free Writing Prospectus has fully complied
and will fully comply with the applicable requirements of
Rules 164 and 433, including timely Commission filing where
required, legending and record keeping.
(e)
Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the Closing Date or until any earlier
date that the Issuer notified or notifies the Representatives as
described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration
Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, (i) CPL or the Issuer
has promptly notified or will promptly notify the Representatives
and (ii) CPL or the
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Issuer has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or
omission. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information
furnished to the Issuer or CPL by any Underwriter through the
Representatives specifically for use therein.
(f)
The Issuer has been duly formed and is validly existing as a
limited liability company in good standing under the Limited
Liability Company Law of the State of Louisiana, as amended, with
full limited liability company power and authority to execute,
deliver and perform its obligations under this Underwriting
Agreement, the Bonds, the Sale Agreement, the Servicing Agreement,
the Indenture, the Issuer LLC Agreement, the Administration
Agreement and the other agreements and instruments contemplated by
the Pricing Prospectus (collectively, the “Basic
Documents”) and to own its properties and conduct its
business as described in the Pricing Prospectus; the Issuer has
been duly qualified as a foreign limited liability company for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where failure to so qualify or to be in good standing would not
have a material adverse effect on the business, properties or
financial condition of the Issuer; the Issuer has conducted and
will conduct no business in the future that would be inconsistent
with the description of the Issuer’s business set forth in
the Pricing Prospectus; the Issuer is not a party to or bound by
any agreement or instrument other than the Basic Documents and
other agreements or instruments incidental to its formation; the
Issuer has no material liabilities or obligations other than those
arising out of the transactions contemplated by the Basic Documents
and as described in the Pricing Prospectus; CPL is the beneficial
owner of all of the limited liability company interests of the
Issuer; and based on current law, the Issuer is not classified as
an association taxable as a corporation for United States federal
income tax purposes.
(g)
The issuance and sale of the Bonds by the Issuer, the purchase of
the Storm Recovery Property by the Issuer from CPL, the execution,
delivery and compliance by the Issuer with all of the provisions of
the Basic Documents to which the Issuer is a party, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under any trust
agreement, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Issuer is now a party or
by which the Issuer is bound or to which any of the property or
assets of the Issuer is subject, which conflict, breach, violation
or default would be material to the issue and sale of the Bonds or
would have a material adverse effect on the business, property or
financial condition of the Issuer, nor will such action result in
any violation of the Issuer’s Articles of Organization and
Initial Report or the Issuer’s LLC Agreement (collectively,
the “Issuer Charter Documents”) or any statute, order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Issuer or any of its properties,
except for violations that would not, individually or in the
aggregate, have a material adverse affect on the business, property
or financial condition of the Issuer.
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(h)
This Underwriting Agreement has been duly authorized, executed and
delivered by the Issuer, which has the necessary limited liability
company power and authority to execute, deliver and perform its
obligations under this Underwriting Agreement, and constitutes a
valid and binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or
affecting creditors’ or secured parties’ rights
generally and by general principles of equity (including concepts
of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at
law; and possible limitations on enforceability of rights to
indemnification or contribution by federal or state securities laws
or regulations or by public policy.
(i)
The Issuer (i) is not in violation of the Issuer Charter
Documents, (ii) is not in default and no event has occurred
which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of
trust or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties is subject,
except for any such defaults that would not, individually or in the
aggregate, have a material adverse effect on its business, property
or financial condition, and (iii) is not in violation of any
law, ordinance, governmental rule, regulation or court decree to
which it or its property may be subject, except for any such
violations that would not, individually or in the aggregate, have a
material adverse effect on its business, property or financial
condition.
(j)
The Indenture has been duly authorized by the Issuer, and, on the
Closing Date, will have been duly executed and delivered by the
Issuer and will be a valid and binding instrument, enforceable
against the Issuer in accordance with its terms, except as the
enforceability thereof may be limited (i) by bankruptcy,
insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of equity
(including concepts of materiality, reasonableness, good faith and
fair dealing), regardless of whether considered in a
proceeding in equity or at law and (ii) possible limitations
on enforceability of rights to indemnification or contribution by
federal or state securities laws or regulations or by public
policy. On the Closing Date, the Indenture will
(i) comply as to form in all material respects with the
requirements of the Trust Indenture Act and (ii) conform in
all material respects to the description thereof in the Pricing
Prospectus and Final Prospectus.
(k)
The Bonds have been duly authorized by the Issuer for issuance and
sale to the Underwriters pursuant to this Underwriting Agreement
and, when executed by the Issuer and authenticated by the Trustee
in accordance with the Indenture and delivered to the Underwriters
against payment therefor in accordance with the terms of this
Underwriting Agreement, will constitute valid and binding
obligations of the Issuer entitled to the benefits of the Indenture
and enforceable against the Issuer in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of
equity
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(including concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law, and possible
limitations on enforceability of rights to indemnification or
contribution by federal or state securities laws or regulations or
by public policy; and the Bonds conform in all material respects to
the description thereof in the Pricing Prospectus and Final
Prospectus. The Issuer has all requisite limited liability
company power and authority to issue, sell and deliver the Bonds in
accordance with and upon the terms and conditions set forth in this
Underwriting Agreement and in the Pricing Prospectus and Final
Prospectus.
(l)
There is no pending or threatened suit or proceeding before any
court or governmental agency, authority or body or any arbitration
involving the Issuer, the Storm Recovery Property or the Bonds
required to be disclosed in the Pricing Prospectus which is not
adequately disclosed in the Pricing Prospectus.
(m)
Other than any necessary action of the LPSC, any filings required
under the Securitization Act or Financing Order or as otherwise set
forth or contemplated in the Pricing Prospectus, no approval,
authorization, consent or order of any public board or body (except
such as have been already obtained and other than in connection or
in compliance with the provisions of applicable blue sky laws or
securities laws of any state, as to which the Issuer makes no
representations or warranties), is legally required for the
issuance and sale by the Issuer of the Bonds.
(n)
The Issuer is not, and, after giving effect to the sale and
issuance of the Bonds, will not be an “investment
company” within the meaning of the Investment Company Act of
1940, as amended (the “1940 Act”).
(o)
PricewaterhouseCoopers LLP (“PricewaterhousCoopers”),
who have performed certain agreed upon procedures with respect to
certain statistical and structural information contained in the
Pricing Prospectus and the Final Prospectus, are independent public
accountants as required by the Securities Act and the
rules and regulations of the Commission thereunder.
(p)
Each of the Sale Agreement, the Servicing Agreement, the
Administration Agreement and Issuer LLC Agreement has been duly
authorized by the Issuer, and when executed and delivered by the
Issuer and the other parties thereto, will constitute a valid and
legally binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or
affecting creditors’ or secured parties’ rights
generally and by general principles of equity (including concepts
of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at
law, and possible limitations on enforceability of rights to
indemnification or contribution by federal or state securities laws
or regulations or by public policy.
4.
Representations and Warranties of CPL . CPL represents
and warrants to the several Underwriters that:
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(a)
CPL, in its capacity as co-registrant and sponsor with respect to
the Bonds, and jointly with the Issuer, has filed with the
Commission Registration Statement No. 333-147122 for the
registration under the Securities Act of up to $181,000,000
aggregate principal amount of the Issuer’s storm recovery
bonds. Registration Statement No. 333-147122 has been declared
effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of CPL, threatened by the Commission.
(b)
(i) At the earliest time after the filing of the Registration
Statement that the Issuer or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of
the Securities Act) of the Bonds and (ii) at the date hereof,
CPL was not and is not an “ineligible issuer,” as
defined in Rule 405 under the Securities Act.
(c)
At the time the Registration Statement initially became effective,
at the time of each amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether by
post effective amendment, incorporated report or form of
prospectus) and on the Effective Date relating to the Bonds, the
Registration Statement, and the Indenture, on the Closing Date,
fully complied and will fully comply in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations of the
Commission thereunder; the Registration Statement, at the date it
initially became effective and at the Effective Date, did not
contain and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, not misleading. As
of the Applicable Time and as of the Closing Date, the Final
Prospectus fully complied and will fully comply in all material
respects to the provisions of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations of the
Commission thereunder, and such document 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, that the foregoing representations and warranties in this
paragraph (c) shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Issuer or CPL by, or on behalf of, any Underwriter
through the Representatives expressly for use in connection with
the preparation of the Registration Statement or the Final
Prospectus, or to any statements in or omissions from any Statement
of Eligibility on Form T-1, or amendments thereto, of the
Trustee under the Indenture filed as exhibits to the Registration
Statement or Incorporated Documents or to any statements or
omissions made in the Registration Statement or Final Prospectus
relating to the DTC Book Entry Only System that are based solely on
information contained in published reports of DTC.
(d)
As of its date, at the Applicable Time, on the date of its filing,
if applicable, and on the Closing Date, the Pricing Prospectus and
each Issuer Free Writing Prospectus (other than the Pricing Term
Sheet), considered together, did not include 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 (except
that the principal amount of the Bonds, the tranches, the
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initial principal balances, the scheduled final
payment dates, the final maturity dates, the expected average
lives, the Expected Amortization Schedule and the Expected Sinking
Fund Schedule described in the Pricing Prospectus were subject to
change based on market conditions and supersede any previously
issued descriptions of such information and (ii) the interest
rate, price to the public and underwriting discounts and
commissions for each tranche was not included in the Pricing
Prospectus). The Pricing Term Sheet, as of its issue date and
at all subsequent times through the completion of the public offer
and sale of the Bonds, considered together with the Pricing
Prospectus and each other Issuer Free Writing Prospectus, did not
include 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 in which they were made,
not misleading. The two preceding sentences do not apply to
statements in or omissions from the Pricing Prospectus, the Pricing
Term Sheet or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Issuer
or CPL by any Underwriter through the Representatives specifically
for use therein. CPL represents, warrants and agrees that it
has treated and agrees that it will treat each of the free writing
prospectuses listed on Schedule III hereto as an Issuer Free
Writing Prospectus, and that each such Issuer Free Writing
Prospectus has fully complied and will fully comply with the
applicable requirements of Rules 164 and 433, including timely
Commission filing where required, legending and record
keeping
(e)
Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and
sale of the Bonds or until any earlier date that the Issuer or CPL
notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(i) CPL or the Issuer has promptly notified or will promptly
notify the Representatives and (ii) CPL or the Issuer has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. The foregoing two sentences do
not apply to statements in or omissions from any Issuer Free
Writing Prospectus in reliance upon and in conformity with written
information furnished to the Issuer or CPL by any Underwriter
through the Representatives specifically for use therein.
(f)
CPL has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of
Louisiana, has the limited liability company power and authority to
own, lease and operate its properties and to conduct its business
as presently conducted and as set forth in or contemplated by the
Pricing Prospectus, is qualified as a foreign limited liability
company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business,
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except where the failure to so qualify or be in
good standing would not have a material adverse effect on the
business, property or financial condition of CPL and its
subsidiaries considered as a whole, and has all requisite power and
authority to sell the Storm Recovery Property as described in the
Pricing Prospectus and to otherwise perform its obligations under
any Basic Document to which it is a party. CPL is the
beneficial owner of all of the limited liability company interests
of the Issuer.
(g)
CPL has no significant subsidiaries within the meaning of
Rule 1-02(w) of Regulation S-X.
(h)
The transfer by CPL of its rights and interests under the Financing
Order relating to the Bonds to the Issuer as provided in the Sale
Agreement, the execution, delivery and compliance by CPL with all
of the provisions of the Basic Documents to which CPL is a party,
and the consummation by the Issuer and CPL of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any trust agreement, indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which CPL is a party or by which CPL is bound or to
which any of the property or assets of CPL is subject, which
conflict, breach, violation or default would be material to the
issue and sale of the Bonds.
(i)
This Underwriting Agreement has been duly authorized, executed and
delivered by CPL, which has the necessary corporate power and
authority to execute, deliver and perform its obligations under
this Underwriting Agreement, and constitutes a valid and
binding obligation of CPL, enforceable against CPL in accordance
with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium
or other similar laws relating to or affecting creditors’ or
secured parties’ rights generally and by general principles
of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a
proceeding in equity or at law, and possible limitations on
enforceability of rights to indemnification or contribution by
federal or state securities laws or regulations or by public
policy.
(j)
CPL (i) is not in violation of CPL’s Articles of
Organization or Operating Agreement (collectively “CPL
Charter Documents”), (ii) is not in default and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust or other agreement or instrument to which
it is a party or by which it is bound or to which any of its
properties is subject which would be material to the issue and sale
of the Bonds, or (iii) is not in violation of any law,
ordinance, governmental rule, regulation or court decree to which
it or its property may be subject which would be material to the
issue and sale of the Bonds.
(k)
There is no pending or threatened suit or proceeding before any
court or governmental agency, authority or body or any arbitration
involving CPL, the Storm Recovery Property or the Bonds required to
be disclosed in the Pricing Prospectus which is not adequately
disclosed in the Pricing Prospectus.
10
(l)
Other than any necessary action of the LPSC, any filings required
under the Securitization Act or Financing Order or as otherwise set
forth or contemplated in the Pricing Prospectus, no approval,
authorization, consent or order of any public board or body (except
such as have been already obtained and other than in connection or
in compliance with the provisions of applicable blue sky laws or
securities laws of any state, as to which CPL makes no
representations or warranties), is legally required for the
issuance and sale by the Issuer of the Bonds.
(m)
CPL is not, and after giving effect to the sale and issuance of the
Bonds, will not be, an “investment company” within the
meaning of the 1940 Act.
(n)
Each of the Sale Agreement, the Servicing Agreement and the
Administrative Agreement has been duly and validly authorized by
CPL, and when executed and delivered by CPL and the other parties
thereto will constitute a valid and legally binding obligation of
CPL, enforceable against CPL in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of equity
(including concepts of materiality, reasonableness, good faith and
fair dealing), regardless of whether considered in a proceeding in
equity or at law, and possible limitations on enforceability of
rights to indemnification or contribution by federal or state
securities laws or regulations or by public policy.
(o)
There are no Louisiana transfer taxes related to the transfer of
the Storm Recovery Property or the issuance and sale of the Bonds
to the Underwriters pursuant to this Underwriting Agreement
required to be paid at or prior to the Closing Date by CPL or the
Issuer.
(p)
PricewaterhouseCoopers are independent public accountants with
respect to CPL as required by the Securities Act and the
rules and regulations of the Commission thereunder.
5.
Investor Communications .
(a)
The Issuer and CPL represent and agree that, unless they obtain the
prior consent of the Representatives, and each Underwriter
represents and agrees that, unless it obtains the prior consent of
the Issuer and CPL and the Representatives, 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 Issuer or CPL, as applicable, with the Commission or
retained by the Issuer or CPL, as applicable, under Rule 433
under the Securities Act; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect
of the term sheets and each other Free Writing Prospectus
identified in Schedule III hereto.
(b)
CPL and the Issuer (or the Representatives at the direction of the
Issuer) will prepare a final pricing term sheet relating to
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