Exhibit 1.1
Cleco Corporation
1,750,000 Shares
Common Stock
(par value $1.00 per share)
Underwriting Agreement
May 2, 0000
Xxx Xxxx, Xxx Xxxx
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Ladies and Gentlemen:
Cleco Corporation, a Louisiana corporation (the "Company") confirms its
agreement with Credit Suisse First Boston Corporation (the "Underwriter") as
follows:
1. Offering. The Company proposes to issue and sell to the Underwriter
1,750,000 shares (the "Firm Securities") of its common stock, par value $1.00
per share (the "Securities"), and also proposes to issue and sell to the
Underwriter, at the option of the Underwriter, an aggregate of not more than
250,000 additional shares (the "Optional Securities"), of its Securities as set
forth below. The Firm Securities and the Optional Securities are herein
collectively called the "Offered Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-55656) and
Pre-Effective Amendment No. 1 thereto, including a form of prospectus, for the
registration of the offer and sale of certain securities, including the Offered
Securities 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. Promptly after
execution and delivery of this Agreement, the Company will prepare and file a
prospectus supplement relating to the Offered Securities, 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 Offered Securities, 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 Offered Securities, are collectively
referred to herein as the "Prospectus", and such registration statement in the
form in which it became effective, is hereinafter called the "Registration
Statement"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the date of this Agreement. A
"preliminary prospectus" shall be deemed to refer to any prospectus that omitted
information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b) under the 1933 Act Regulations
and was used after such effectiveness and prior to the initial delivery of the
Prospectus to the 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 ("XXXXX").
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 Offered Securities; Closing; Offering by the
Underwriter.
(a) Subject to the terms and conditions and based upon the
representations and warranties set forth in this Agreement, the Company
agrees to issue and sell 1,750,000 Firm Securities at a purchase price of
$22.15 per share to the Underwriter and the Underwriter agrees to purchase
from the Company such number of Firm Securities.
(b) The Company will deliver the Firm Securities to the Underwriter
against payment of the purchase price by wire transfer of immediately
available funds to an account at a bank designated by the Company at the
office of Sidley Xxxxxx Xxxxx Xxxx 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 10:00 A.M., New York City time, on May 8, 2002, or at such
other time not later than seven full business days thereafter as the
Underwriter and the Company determine, such time being herein referred to
as the "First Closing Date". For purposes of Rule 15c6-1 under the 1934
Act, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and
delivery of securities for all the Offered Securities sold pursuant to the
offering. Delivery of the Firm Securities shall be made through the
facilities of The Depository Trust Company unless the Underwriter shall
otherwise direct.
(c) In addition, upon written notice from the Underwriter given to the
Company from time to time not more than 30 days subsequent to the date of
the Prospectus, the Underwriter may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Company agrees to sell to the Underwriter the number
of shares of Optional Securities specified in such notice and the
Underwriter agrees to purchase such Optional Securities. Such Optional
Securities may be purchased by the Underwriter only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or
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simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to
the extent not previously exercised may be surrendered and terminated at
any time upon notice by the Underwriter to the Company.
(d) Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "Optional Closing Date", which
may be the First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a "Closing Date"),
shall be determined by the Underwriter but shall be not later than five
full business days after written notice of election to purchase Optional
Securities is given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to the Underwriter, against payment
of the purchase price therefor by wire transfer of immediately available
funds to an account at a bank designated by the Company, at the above
office of Sidley Xxxxxx Xxxxx & Xxxx LLP, or at such other place as shall
be agreed upon by the Underwriter and the Company. Delivery of the Optional
Securities shall be made through the facilities of The Depository Trust
Company unless the Underwriter shall otherwise direct.
(e) The Underwriter agrees to make a public offering of the Offered
Securities at the public offering price and upon the terms and conditions
set forth in the Prospectus.
3. Representations and Warranties. The Company represents and warrants to
the Underwriter as of the date hereof and as of any Closing Date as set forth
below in this Section 3.
(a) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has been declared effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or threatened.
(b) Due Organization. The Company has been duly organized and is
validly existing as a corporation under the laws of the State of Louisiana
and has the corporate power and authority to own its properties and to
conduct its business as described in the Registration Statement.
(c) Subsidiaries. The Company has no "Significant Subsidiaries", as
such term is defined in Rule 405 of Regulation C of the 1933 Act
Regulations other than Cleco Power LLC ("Cleco Power"), Cleco Midsteam
Resources LLC, Acadia Power Holdings LLC and Cleco Xxxxxxxxxx LLC (each a
"Subsidiary" and collectively, the "Subsidiaries"). Each of the
Subsidiaries has been duly organized and is validly existing under the laws
of the jurisdiction of its organization and each of the Subsidiaries has
the respective limited liability company power and authority to own its
properties and to conduct its business; and all of the issued and
outstanding membership interests of each Subsidiary have been duly
authorized and validly issued, and are owned by the Company, directly or
through a subsidiary, free from liens, encumbrances and defects, except
that the membership interests in Cleco Xxxxxxxxxx LLC have been pledged in
connection with
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the Trust Indenture, dated as of December 10, 1999, from Cleco Xxxxxxxxxx
LLC to Bank One Trust Company, N.A., as trustee.
(d) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of each Closing Date, will comply, in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations. The Registration Statement, at the time it became effective,
did not, as of the date hereof, does not, and at each 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
each 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 those parts of the Registration Statement which constitute the
Statements of Eligibility and Qualification under the 1939 Act (the "Forms
T-1") of Bank One Trust Company, N.A., as trustee or as property trustee
(the "Trustee") that are filed as exhibits to the Registration Statement.
(e) Incorporated Documents. The documents incorporated by reference in
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied or, when so filed, will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became effective, as of the date of the Prospectus
and on any Closing Date, did not and will not, as of such time or dates, as
the case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were or are made, not misleading.
(f) Accountants. PricewaterhouseCoopers LLP, who have reported upon
certain of the financial statements incorporated by reference in the
Registration Statement, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(g) Financial Statements. The consolidated financial statements and
supplemental schedules of the Company set forth in or incorporated by
reference in the Registration Statement and Prospectus have been prepared
from the books and records of the Company and its consolidated subsidiaries
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 and its
consolidated subsidiaries at the dates indicated and the results of their
operations, their cash flows and changes in their capital for the periods
then ended.
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(h) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and
Prospectus, except as otherwise stated therein, (i) there has not been any
material adverse change in the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its Subsidiaries,
whether or not arising in the ordinary course of business and (ii) no
material transaction has been entered into by the Company or any of its
subsidiaries other than transactions contemplated by the Registration
Statement and transactions in the ordinary course of business.
(i) No Defaults. The Company and its Subsidiaries are not in violation
of or in default under any term or provision of their respective
organizational documents, each as amended, or of any mortgage, indenture,
contract, agreement, instrument, judgment, decree or order applicable to
the Company or any of its Subsidiaries 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 its subsidiaries taken as a
whole, 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. Other than approvals that may be required
under state securities laws, no approval of any regulatory public body
(including, but not limited to, governmental agencies), 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"),
or any court is necessary in connection with the issuance and sale of the
Offered Securities pursuant to this Agreement.
(k) Legal Proceedings. Except as described in the Registration
Statement, there is no material litigation or governmental proceeding
involving or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries which might reasonably be expected to
result in any material adverse change in the financial condition, results
of operations or business of the Company and its subsidiaries taken as a
whole 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 or any of its
Subsidiaries, and, to the knowledge of the Company, no such proceeding is
contemplated.
(l) Good Title. The Company and its Subsidiaries have good title
(either by way of fee simple, leasehold, easement, right-of-way, grant,
servitude, privilege, permit, franchise or license, as the case may be) to
all their properties including, without limitation, the properties
reflected in the most recent consolidated 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
liens and encumbrances set forth on Schedule A hereto and (ii) other
encumbrances and defects which do not in the aggregate materially detract
from the value of the properties of the Company and its
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Subsidiaries or impair or interfere with the use of properties material to
the business and operations of the Company and its subsidiaries taken as a
whole.
(m) Regulatory Compliance. The Company and its Subsidiaries are in
substantial compliance with all federal and state environmental statutes,
rules and regulations and, to the Company's knowledge, have received all
required permits necessary for the operation of their businesses under such
statutes, rules and regulations.
(n) Authorization and Validity of the Offered Securities. The Offered
Securities and all other outstanding shares of capital stock of the Company
have been duly authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been delivered and paid
for in accordance with this Agreement on the applicable Closing Date, such
Offered Securities will have been, validly issued, fully paid and
nonassessable and will conform in all material respects to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Securities.
(o) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company; and the consummation of the transactions
contemplated by this Agreement and the performance of the Company's
obligations hereunder will not result in any material violation of, or be
in material conflict with or constitute a material default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of the properties or assets of the Company or its Subsidiaries that are
material to the conduct of their business under their respective
organizational documents, as amended, or any material mortgage, contract,
indenture, agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or any judgment,
order, statute, rule or regulation applicable to them of any court or
governmental body or instrumentality having jurisdiction over them or their
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) 1935 Act. Based upon the timely filing by the Company 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
Company 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.
(q) Listing. Prior to the Closing Date, the Offered Securities will be
approved for listing on the New York Stock Exchange and the Pacific Stock
Exchange subject only to notice of issuance.
(r) Registration Rights. There are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to include any securities of the Company in
the securities registered pursuant to the Registration Statement.
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(s) Authorization of the Perryville Energy Partners, LLC Acquisition.
The agreement dated March 22, 2002 between Perryville Energy Holdings LLC
("PEH") and Mirant Perryville Investments, Inc. ("MPI") (the "Acquisition
Agreement") to acquire MPI's 50% interest in Perryville Energy Partners,
LLC has been duly authorized, executed and delivered by PEH and is a valid
and binding agreement of PEH; PEH has full limited liability company power
and authority to perform its obligations, and to consummate the transaction
contemplated, thereunder; and the Company is not aware of any circumstances
that would lead to such transaction not being consummated.
4. Agreements of the Company. The Company agrees with the Underwriter that:
(a) At any time when a prospectus relating to the Offered Securities
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 0000
Xxx) 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 number
of shares of Offered Securities to be sold, the Underwriter's name, the
price at which the Offered Securities 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 Offered Securities. 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 Offered
Securities 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 Offered Securities 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.
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(b) If at any time when a prospectus relating to the Offered
Securities 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 Offered
Securities 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 in such announcement or document
and (iii) the Company will furnish to the Underwriter copies of all other
material press releases or announcements to the general public.
(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 Offered Securities, 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 Offered Securities 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 Offered Securities; provided,
however, that the Company will not be obligated to file any general consent
to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified.
(g) The Company will apply the net proceeds from the offering of the
Offered Securities in the manner set forth under the caption "Use of
Proceeds" in the Prospectus.
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(h) For a period of 60 days after the date of the Prospectus, the
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration
statement under the 1933 Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or exercisable
for any shares of its Securities, or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Underwriter.
(i) The Company shall, whether or not any sale of the Offered
Securities 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, this Agreement and related documents
delivered to the Underwriter, the cost of preparing, printing, packaging
and delivering the Offered Securities, the fees and expenses incurred in
connection with the listing of the Offered Securities on the New York Stock
Exchange and the Pacific Stock Exchange, and the fees and expenses incurred
in compliance with Section 4(f) hereof. 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
Offered Securities 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 the
Underwriter to purchase and pay for the Offered Securities 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 each 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 each Closing Date, the Company shall have furnished to the
Underwriter the opinion of Xxxxx Xxxxx L.L.P., counsel for the Company, or
other counsel satisfactory to the Underwriter, dated such 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
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generally and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
(ii) The execution and delivery of this Agreement by the Company
and the performance by the Company of its agreements herein will not
(a) breach or otherwise violate any order known to such counsel, 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;
(iii) The Offered Securities conform in all material respects to
the description thereof contained in the Registration Statement and
the Prospectus;
(iv) 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
Offered Securities or the performance by the Company of its agreements
in this Agreement;
(v) The Registration Statement has become effective under the
1933 Act and, to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the 1933 Act; the Registration Statement and the
Prospectus (other than the financial statements and schedules,
including the notes thereto, the auditors' report thereon and the
related summary of accounting policies, contained or incorporated by
reference therein, as to which no opinion need be rendered) appear on
their faces to comply as to form in all material respects with the
requirements of Form S-3, the applicable rules and regulations with
respect thereto under the 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;
(vi) Such counsel does not know of any contracts or other
documents 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;
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(vii) Such counsel does 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;
(viii) Based upon the timely filing by the Company with the
Commission of an exemption statement pursuant to Rule 2 under the 1935
Act, the Company 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;
(ix) 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; and
(x) There are no contracts, agreements or understandings known to
such counsel between the Company and any person granting such person
the right to require the Company to include any securities of the
Company in the securities registered pursuant to the Registration
Statement.
In giving such opinion, Xxxxx Xxxxx L.L.P. may rely as to matters of
Louisiana law upon the opinion of Xxxxxx Xxxxxx, L.L.P., or such other
satisfactory counsel, as referred to below.
(c) On each Closing Date, the Company shall have furnished to the
Underwriter the opinion of Xxxxxx Xxxxxx, L.L.P., special Louisiana counsel
for the Company, or other counsel satisfactory to the Underwriter, dated
such Closing Date, as the case may be, to the effect that:
(i) The Company is a corporation duly organized and validly
existing under the laws of the State of Louisiana and has all 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 such counsel's 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 corporation;
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(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 Offered Securities delivered on such Closing Date and
all other outstanding shares of the Securities of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable; and the stockholders of the Company have no preemptive
rights with respect to the Securities;
(v) Other than in connection with the provisions of securities or
"blue sky" laws of any jurisdiction in which it is proposed that the
Offered Securities be offered or sold (as to which no opinion is being
rendered), 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 Offered
Securities, or the performance by the Company of its agreements in
this Agreement;
(vi) Each of the Subsidiaries has been duly organized and is
validly existing under the laws of the jurisdiction of its
organization and each of the Subsidiaries has the respective power and
authority and, to such counsel's knowledge, foreign qualifications
necessary to own its properties and to conduct its business; and the
membership interests of each Subsidiary have been duly authorized and
validly issued, and are owned by the Company, directly or through a
subsidiary, to such counsel's knowledge, after due inquiry, free from
liens, encumbrances and defects, except that the membership interests
in Cleco Xxxxxxxxxx LLC have been pledged in connection with the Trust
Indenture, dated as of December 10, 1999, from Cleco Xxxxxxxxxx LLC to
Bank One Trust Company, N.A., as trustee; and
(vii) The execution and delivery of this Agreement by the Company
and the performance by the Company of its agreements 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 or the Subsidiaries under any existing
obligation of the Company under any indenture, agreement or instrument
known to them to which the Company or any of the Subsidiaries are a
party or by which any of them is bound, (b) breach or otherwise
violate any order known to them and applicable to the Company or the
Subsidiaries 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 the Subsidiaries or their properties or (c)
violate (i) the respective organizational documents of the Company and
the Subsidiaries, 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
12
hereof applicable to the Company or any of the Subsidiaries of any
governmental body or instrumentality of the State of Louisiana having
jurisdiction over the Company or the Subsidiaries or their properties.
(d) On each Closing Date, the Underwriter shall have received from
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriter, or other
counsel satisfactory to the Underwriter, such opinion or opinions, dated
such Closing Date, with respect to matters set forth in clauses (iii) and
(v) of subparagraph (b) of this Section 5 and to the effect that 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 and 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).
In giving such opinion, Sidley Xxxxxx Xxxxx & Xxxx LLP may rely as to
matters of Louisiana law upon the opinion of Xxxxxx Xxxxxx, L.L.P., or such
other satisfactory counsel, as referred to above.
(e) In giving their opinions required by subsections (b) and (d) of
this Section 5, each such counsel shall additionally state that nothing has
come to their attention that would lead them to believe that (a) the
Registration Statement, at the time it became effective (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
applicable Closing Date (other than (i) the financial statements and
schedules, including the notes thereto, the auditors' report thereon and
the related summary of accounting policies, contained or incorporated by
reference therein and (ii) the other financial information contained or
incorporated by reference therein, as to which no statement need be made),
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(f) On each 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 and its subsidiaries taken as a
whole, or in the earnings, business affairs or business prospects of the
Company or its subsidiaries taken as a whole, 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
13
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 each Closing Date, the Underwriter shall have received a letter
from the Company's independent accountants dated as of such Closing Date,
in form and substance satisfactory to the Underwriter.
(h) On the date hereof and on each 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 Offered Securities 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 Offered Securities as herein contemplated shall be satisfactory in
form and substance in the reasonable judgment of the Underwriter and its
counsel.
(i) On or prior to the date of this Agreement, the Underwriter shall
have received lockup letters substantially in the form of Exhibit A hereto
from each of the executive officers and directors of the Company.
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 applicable
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
14
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, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such in
subsection (b) below. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company, each
of its directors, 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 fourth and eleventh paragraphs (including
bullet points thereunder) 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
15
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. In no event shall an
indemnifying party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in 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 (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(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 Offered Securities 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
Offered Securities 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 Offered Securities 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
16
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. 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 Offered Securities from which such Losses
arise. Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) 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).
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 applicable 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 or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities; (iii)
trading in the Company's Securities shall have been suspended or materially
limited by the Commission or any national securities exchange; (iv) 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; (v) 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; (vi) the rating assigned by any nationally recognized
statistical rating organization to the 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 such debt securities; or (vii) 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 Offered Securities, included an untrue
statement of a
17
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) and Section 8 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 Offered Securities. 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 or
telegraphed and confirmed to the Underwriter at Eleven Madison Avenue, New York,
New York 10010-3629, Attn: Transactions Advisory Group (or such other place as
the Underwriter may specify in writing), or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to the Company at 0000 Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attn: Treasurer (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.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
18
If the foregoing is in accordance with the Underwriter's understanding of
our agreement, please sign and return to the Company 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 CORPORATION
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx
-------------------------------------------
Name: Xxxxxx
Title: Director
19
EXHIBIT A
[Form of Lock-Up Agreement]
May , 2002
Cleco Corporation
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriter to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for common stock, par value $1.00 per share (the
"Securities"), of Cleco Corporation, a Louisiana corporation, and any successor
(by merger or otherwise) thereto, (the "Company"), the undersigned hereby agrees
that from the date hereof and until 60 days after the public offering date set
forth on the final prospectus used to sell the Securities (the "Public Offering
Date") pursuant to the Underwriting Agreement, to which you are or expect to
become parties, the undersigned will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or to enter into
any such transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of Credit Suisse First Boston Corporation. In
addition, the undersigned agrees that, without the prior written consent of
Credit Suisse First Boston Corporation, it will not, during the period
commencing on the date hereof and ending 60 days after the Public Offering Date,
make any demand for or exercise any right with respect to, the registration of
any Securities or any security convertible into or exercisable or exchangeable
for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement
A-1
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before July 2, 2002.
Very truly yours,
---------------------------------------
Name:
A-2
SCHEDULE A
LIENS ON PROPERTIES OF CLECO CORPORATION,
CLECO POWER LLC, CLECO MIDSTREAM RESOURCES LLC,
CLECO XXXXXXXXXX LLC, AND ACADIA POWER HOLDINGS LLC
Cleco Corporation
None
Cleco Power LLC
1) Indenture of Mortgage, dated July 1, 1950, as supplemented and amended,
from Cleco Power LLC to Bank One Trust Company, N.A., as trustee.
Cleco Midstream Resources LLC
1) Cleco Midstream Resources LLC's interest in Cleco Xxxxxxxxxx LLC is
pledged in connection with the Trust Indenture, dated as of December 10, 1999,
by Cleco Xxxxxxxxxx LLC and Bank One Trust Company, N.A., as trustee (the
"Xxxxxxxxxx Trust Indenture"); and
2) Cleco Midstream Resources LLC's interest in Perryville Energy Holdings
LLC is pledged in connection with the Security Agreement, dated June 7, 2001,
with Mirant Corporation, as such agreement may be amended or supplemented in
connection with the Perryville Energy Partners, LLC acquisition.
Cleco Xxxxxxxxxx LLC
1) All material assets of Cleco Xxxxxxxxxx LLC are encumbered in connection
with the Xxxxxxxxxx Trust Indenture.
Acadia Power Holdings LLC
1) Acadia Power Holdings LLC's interest in Acadia Power Partners LLC is
pledged in connection with the 364-Day Credit Agreement, dated as of June 25,
2001, by Cleco Midstream Resources LLC and The Bank of New York; and
2) Acadia Power Holdings LLC's interest in Acadia Power Partners LLC is
encumbered by purchase options and rights in favor of Calpine Acadia Holdings,
LLC under the Amended and Restated Limited Liability Company Agreement of Acadia
Power Partners LLC dated February 29, 2000, as amended.
A-1
