Exhibit 1(a)
LOUISIANA POWER & LIGHT COMPANY
W3A FUNDING CORPORATION
$________ Waterford 3 Secured Lease Obligation Bonds, ____% Series due ____
$________ Waterford 3 Secured Lease Obligation Bonds, ____% Series due ____
UNDERWRITING AGREEMENT
__________ __, 1996
XXXXXX XXXXXXX & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Each of the undersigned, Louisiana Power & Light
Company (the "Company") and W3A Funding Corporation (the "Funding
Corporation"), hereby confirms its agreement with you, as
underwriters (the "Underwriters", which term, when the context
permits, shall also include any underwriters substituted as
hereinafter in Section 12 provided), as follows:
SECTION 1. Introduction. The Funding Corporation
proposes to issue and sell $_____________ in aggregate principal
amount of its Waterford 3 Secured Lease Obligation Bonds, ____%
Series due __________ __, ____ (the "Short Bonds") and
$__________ in aggregate principal amount of its Waterford 3
Secured Lease Obligation Bonds, ____% Series due _______ __, ____
(the "Long Bonds") (collectively, the "Bonds"; each of the Short
Bonds and the Long Bonds sometimes being referred to herein as a
"series" of Bonds) registered under the Registration Statement
(as defined herein). The Bonds will be issued under a Collateral
Trust Indenture dated as of ________ __, 1996, as supplemented by
Supplemental Indenture No. 1 thereto dated as of ________ __,
1996 (the "Supplemental Indenture"), among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee") (such Collateral Trust Indenture, as so
supplemented, the "Trust Indenture").
SECTION 2. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, each Underwriter shall
purchase from the Funding Corporation, at the time and place
herein specified, severally and not jointly, and the Funding
Corporation shall issue and sell to each of the Underwriters, the
following principal amounts of the Bonds at the price (equal to
the percentage of the principal amount thereof) indicated below[,
plus accrued interest thereon from _______ __, 1996 to the
Closing Date (as defined herein)]:
Short Bonds
Price: 100%
Name Principal Amount
Xxxxxx Xxxxxxx & Co. Incorporated $
Citicorp Securities, Inc.
$
Long Bonds
Price: 100%
Name Principal Amount
Xxxxxx Xxxxxxx & Co. Incorporated $
Citicorp Securities, Inc.
$
It is understood that the Underwriters will offer the
Bonds for sale as set forth in the Prospectus (as defined
herein). Neither series of the Bonds shall be purchased
hereunder unless both series are purchased.
Concurrently with such purchase, issuance and sale, the
Company will pay, or cause to be paid, to the Underwriters in
same day funds an underwriting commission of ____% of the
principal amount thereof ($_________) in respect of the Short
Bonds and an underwriting commission of ____% of the principal
amount thereof ($_______) in respect of the Long Bonds. The
Company acknowledges that the fees and expenses of counsel to the
Underwriters shall be included on the invoice of transaction
expenses to be delivered by First National Bank of Commerce, as
Owner Trustee (the "Owner Trustee"), on or prior to the Closing
Date, pursuant to Sections 3.01(a)(iii) and 3.01(b) of the
Refunding Agreements Nos. 2 and 3, dated as of ____________ __,
1996, among the Funding Corporation, the Company, the Owner
Participant named therein, the Owner Trustee, Bankers Trust
Company and Xxxxxxx Xxxx (the "Refunding Agreements"), and to be
paid by the Owner Trustee with funds provided by such Owner
Participant and from proceeds from the sale of the Bonds.
SECTION 3. Description of Bonds. The Bonds and the
Trust Indenture shall have the terms and provisions described in
the Prospectus, provided that subsequent to the date hereof and
prior to the Closing Date the form of the Trust Indenture
(including the Supplemental Indenture) may be amended by mutual
agreement among the Funding Corporation, the Company and the
Underwriters.
SECTION 4. Representations and Warranties of the
Company and the Funding Corporation. (a) The Company represents
and warrants to the several Underwriters, and covenants and
agrees with the several Underwriters, that:
(i) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Louisiana and has the necessary corporate power and
authority to conduct the business which it is described in
the Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
(ii) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 333-_____) for the
registration of $322,526,000 principal amount of the Bonds
under the Securities Act of 1933, as amended (the
"Securities Act"), and such registration statement has
become effective. The Company qualifies for use of Form S-3
for the registration of the Bonds. The prospectus forming a
part of such registration statement, at the time such
registration statement became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus". In the event that (A) the Basic
Prospectus shall have been amended, revised or supplemented
prior to the time of effectiveness of this Underwriting
Agreement, including without limitation by any preliminary
prospectus supplement relating to the Bonds, or (B) the
Company shall have filed documents pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time such
registration statement initially became effective and prior
to the time of effectiveness of this Underwriting Agreement,
which are deemed to be incorporated by reference in the
Basic Prospectus pursuant to Item 12 of Form S-3, the term
"Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented and
reflecting such incorporation by reference. Such
registration statement in the form in which it became
effective and as it may have been amended by all amendments
thereto as of the time of effectiveness of this Underwriting
Agreement (including for these purposes as an amendment any
document incorporated by reference in the Basic Prospectus),
and the Basic Prospectus as it shall be supplemented to
reflect the terms of the offering and sale of the Bonds by a
prospectus supplement (the "Prospectus Supplement") to be
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424"),
are hereinafter referred to as the "Registration Statement"
and the "Prospectus," respectively.
(iii) (A) After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 7(d), the Company will not file any amendment to the
Registration Statement or supplement to the Prospectus, and
(B) between the time of effectiveness of this Underwriting
Agreement and the Closing Date, the Company will not file
any document which is to be incorporated by reference in, or
any supplement to, the Basic Prospectus, in either case,
without prior notice to the Underwriters and to Winthrop,
Stimson, Xxxxxx & Xxxxxxx ("Counsel for the Underwriters"),
or any such amendment or supplement to which said Counsel
shall reasonably object on legal grounds in writing. For
purposes of this Underwriting Agreement, any document which
is filed with the Commission after the time of effectiveness
of this Underwriting Agreement and is incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3
shall be deemed a supplement to the Prospectus.
(iv) The Registration Statement, in the form in which
it (or the latest post-effective amendment thereto) became
effective, and the Trust Indenture, at such time, fully
complied, and the Prospectus, when delivered to the
Underwriters for their use in making confirmations of sales
of the Bonds and at the Closing Date, as it may then be
amended or supplemented, will fully comply, in all material
respects with the applicable provisions of the Securities
Act, the Trust Indenture Act of 1939, as amended (the
"TIA"), and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations did or
will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, on the date first filed with the Commission
pursuant to the Exchange Act, fully complied or will fully
comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations
of the Commission thereunder or pursuant to said rules and
regulations did or will be deemed to comply therewith. On
the later of (A) the date the Registration Statement was
declared effective by the Commission under the Securities
Act and (B) the date that the Company's most recent Annual
Report on Form 10-K was filed with the Commission under the
Exchange Act (the date described in either clause (A) or (B)
is hereinafter referred to as the "Effective Date"), the
Registration Statement did not, and on the date that any
post-effective amendment to the Registration Statement
became or becomes effective, the Registration Statement, as
amended by any such post-effective amendment, did not or
will not, 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 not misleading. At the time the Prospectus is
delivered to the Underwriters for their use in making
confirmations of sales of the Bonds and at the Closing Date,
the Prospectus, as it may then be amended or supplemented,
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are made, not misleading, and on said dates and
at such times, the documents then incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, when read
together with the Prospectus, or the Prospectus, as it may
then be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made,
not misleading. The foregoing representations and
warranties in this subsection (iv) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by the Underwriters or on behalf of any Underwriter
specifically for use in connection with the preparation of
the Registration Statement or the Prospectus, as they may be
then amended or supplemented, or to any statements in or
omissions from the statements of eligibility on Form T-1 and
Form T-2, as they may then be amended, under the TIA filed
as exhibits to the Registration Statement.
(v) Each of (A) the Participation Agreements (as
defined in the Prospectus), (B) the Granting Clause
Documents (as defined in Appendix A to the Participation
Agreements), (C) the Trust Indenture, (D) the Refunding
Agreements, and (E) this Underwriting Agreement (the
documents described in clauses (A) through (D) above, as
they each may be amended or supplemented as of the Closing
Date, being collectively referred to herein as the
"Transaction Documents") has been or, as of the Closing
Date, will be duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and
delivery thereof by each other party thereto, constitutes a
legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except
as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and, with respect to this
Underwriting Agreement, subject to any principles of public
policy limiting the right to enforce the indemnification
provisions contained herein.
(vi) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Trust Indenture, the
Granting Clause Documents or the Refunding Agreements or any
other indenture, mortgage, deed of trust or other agreement
or instrument to which the Company is now a party.
(vii) Except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, the
Company has obtained all material licenses, permits, and
other governmental or regulatory authorizations currently
required for the conduct of its business (including, without
limitation, the performance of its current obligations under
the Transaction Documents), and is in all material respects
complying therewith, and the Company is not aware of any
fact that would lead it to believe that any material
license, permit or other governmental or regulatory
authorization would not remain in effect or be renewed in
its ordinary course of business.
(viii) It is not necessary for the Funding Corporation
to register as an investment company pursuant to the
Investment Company Act of 1940, as amended, in order to
participate in the transactions contemplated by the
Prospectus.
(b) The Funding Corporation represents and warrants to
the several Underwriters that each of the Participation
Agreements, the Refunding Agreements, the Trust Indenture, this
Underwriting Agreement and the Bonds has been or, as of the
Closing Date, will be duly authorized, executed and delivered by
the Funding Corporation and, assuming the due authorization,
execution, authentication and delivery thereof by each other
party thereto, constitutes a legal, valid and binding obligation
of the Funding Corporation enforceable against it in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and subject to
any principles of public policy limiting the right to enforce the
indemnification provisions contained herein.
SECTION 1. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds of each series as soon after the
effectiveness of this Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Bonds are to be offered to the public at the respective
initial public offering prices specified in the Prospectus
Supplement [plus accrued interest thereon from _________ __, 1996
to the Closing Date].
SECTION 2. Time and Place of Closing. Delivery of
the Bonds and payment of the purchase price therefor by wire
transfer or check or checks payable to the Funding Corporation in
same day funds shall be made at the offices of Xxxx & Priest LLP,
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York
time, on _____________ __, 1996, or at such other time on the
same or such other day as shall be agreed upon by the Company and
Xxxxxx Xxxxxxx & Co. Incorporated, or as may be established in
accordance with Section 12 hereof. The hour and date of such
delivery and payment are herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in
book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the Bonds
shall be in the form of one or more typewritten bonds in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co, as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between Xxxxxx
Xxxxxxx & Co. Incorporated and the Company, or at such other time
and/or date as may be agreed upon between Xxxxxx Xxxxxxx & Co.
Incorporated and the Company.
SECTION 3. Covenants of the Funding Corporation and
the Company. Each of the Funding Corporation and the Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration
Statement relating to the Bonds, as originally filed with
the Commission, and of all amendments or supplements thereto
relating to the Bonds, certified by an officer of the
Company to be in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriters may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424 and will advise Xxxxxx
Xxxxxxx & Co. Incorporated promptly of the issuance of any
stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Funding Corporation or the Company
shall have received notice. Each of the Funding Corporation
and the Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are
required by law to deliver a prospectus, if any event
relating to or affecting the Company or the Funding
Corporation, or of which the Company shall be advised by the
Underwriters in writing, shall occur which in the Company's
opinion should be set forth in a supplement or amendment to
the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is
delivered to a purchaser of the Bonds, the Company will
amend or supplement the Prospectus by either (i) preparing
and filing with the Commission and furnishing to the
Underwriters a reasonable number of copies of a supplement
or supplements or an amendment or amendments to the
Prospectus, or (ii) making an appropriate filing pursuant to
Section 13, 14 or 15(d) of the Exchange Act which will
supplement or amend the Prospectus, so that, as supplemented
or amended, it 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 when the Prospectus is delivered to a
purchaser, not misleading. Unless such event relates solely
to the activities of the Underwriters (in which case the
Underwriters shall assume the expense of preparing any such
amendment or supplement), the expenses of complying with
this Section 7(d) shall be borne by the Company until the
expiration of nine months from the time of effectiveness of
this Underwriting Agreement and such expenses shall be borne
by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company and the Funding Corporation will furnish such
proper information as may be lawfully required and otherwise
cooperate in qualifying the Bonds for offer and sale under
the blue sky laws of such jurisdictions as the Underwriters
may reasonably designate, provided, that neither the Funding
Corporation nor the Company shall be required to qualify as
a foreign corporation or dealer in securities, to file any
consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by it
to be unduly burdensome.
(g) The Company will, except as herein provided, pay or
cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the Registration Statement and any post-effective amendment
thereto, (ii) the printing, issuance and delivery of the
Bonds and the preparation, execution, printing and
recordation of the Trust Indenture, (iii) legal fees and
expenses relating to the qualification of the Bonds under
the blue sky laws of various jurisdictions in an amount not
to exceed $20,000, (iv) the printing and delivery to the
Underwriters of reasonable quantities of copies of the
Registration Statement, the Basic Prospectus, the
preliminary (and any supplemental) blue sky survey, any
preliminary prospectus supplement relating to the Bonds and
the Prospectus and any amendment or supplement thereto,
except as otherwise provided in paragraph (d) of this
Section 7, (v) fees of the rating agencies in connection
with the rating of the Bonds, (vi) fees (if any) of the
National Association of Securities Dealers, Inc. (the
"NASD") in connection with its review of the terms of the
offering and (vii) the procurement by the Underwriters of
same day funds for the payment of the purchase price for the
Bonds as required by Section 6 of this Underwriting
Agreement. Except as provided above, the Company shall not
be required to pay any amount for any expenses of the
Underwriters, except that, if this Underwriting Agreement
shall be terminated in accordance with the provisions of
Section 8, 9 or 13 hereof, the Company will reimburse the
Underwriters for (i) the reasonable fees and expenses of
Counsel for the Underwriters, and (ii) reasonable out-of-
pocket expenses, in an amount not exceeding in the aggregate
$15,000, incurred in contemplation of the performance of
this Underwriting Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account
of loss of anticipated profits.
SECTION 4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and on
the Closing Date of the representations and warranties made
herein on the part of the Funding Corporation and the Company and
of any certificates furnished by the Funding Corporation and the
Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 5:30 p.m., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Funding
Corporation, the Company or the Underwriters, threatened by,
the Commission on the Closing Date; and the Underwriters
shall have received a certificate, dated the Closing Date
and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of each of the Funding Corporation
and the Company to the effect that no such stop order has
been or is in effect and that no proceedings for such
purpose are pending before, or, to the knowledge of the
Funding Corporation or the Company, respectively, threatened
by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order or orders of the Commission under the Public Utility
Holding Company Act of 1935, as amended (the "Holding
Company Act"), authorizing the issuance and sale of the
Bonds on the terms set forth in, or contemplated by, this
Underwriting Agreement, the Trust Indenture and the
Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from Monroe & Lemann (A Professional Corporation)
and Xxxx & Priest LLP, as counsel to the Company, and Xxxx &
Priest LLP, as counsel to the Funding Corporation, opinions,
dated the Closing Date, substantially in the forms set forth
in Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and the
Underwriters with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for
use in offering the Bonds, with changes therein to reflect
such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Xxxxxx & Xxxxxxx, Counsel
for the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit D hereto,
with such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Coopers & Xxxxxxx L.L.P., the Company's independent
certified public accountants (the "Accountants"), a letter
dated the date hereof and addressed to the Underwriters to
the effect that (i) they are independent certified public
accountants with respect to the Company within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the financial
statements and financial statement schedules examined by
them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and the applicable published rules and
regulations thereunder; (iii) on the basis of performing the
procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, if any, and the stockholder
of the Company, since December 31, 1995 to a specified date
not more than five business days prior to the date of such
letter, and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily
reveal matters of significance with respect to the comments
made in such letter, and, accordingly, that the Accountants
make no representations as to the sufficiency of such
procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe
that, to the extent applicable, (A) the unaudited financial
statements of the Company (if any) included or incorporated
by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder; (B)
any material modifications should be made to said unaudited
financial statements for them to be in conformity with
generally accepted accounting principles; and (C) at a
specified date not more than five business days prior to the
date of the letter, there was any change in the capital
stock or long-term debt of the Company, or decrease in its
net assets, in each case as compared with amounts shown in
the most recent balance sheet incorporated by reference in
the Prospectus, except in all instances for changes or
decreases which the Prospectus discloses have occurred or
may occur, for declarations of dividends, for the repayment
or redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company (A) set forth in the Prospectus,
and (B) set forth in documents filed by the Company pursuant
to Section 13, 14 or 15(d) of the Exchange Act as specified
in Exhibit E hereto, in each case, to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received (i) certificates, dated the Closing Date and signed
by the President, a Vice President, the Treasurer or an
Assistant Treasurer of each of the Funding Corporation and
the Company, respectively, to the effect that (A) the
representations and warranties of the Funding Corporation
and the Company, as the case may be, contained herein are
true and correct, and (B) each of the Funding Corporation
and the Company has performed and complied with all
agreements and conditions in this Underwriting Agreement on
its part to be performed or complied with at or prior to the
Closing Date, (ii) a certificate, dated the Closing Date and
signed by the President, a Vice President, the Treasurer or
an Assistant Treasurer of the Company that since the most
recent date as of which information is given in the
Prospectus, there has not been any material adverse change
in the business, property or financial condition of the
Company and there has not been any material transaction
entered into by the Company, other than transactions in the
ordinary course of business, in each case other than as
referred to in, or contemplated by, the Prospectus as it may
then be amended or supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Trust Indenture
and the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date, the statements contained in the letter
delivered pursuant to Section 8(f) hereof.
(j) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Deloitte & Touche LLP a letter, dated the date hereof,
and addressed to the Underwriters, with respect to certain
financial information contained in the Prospectus, as
mutually agreed to by the Underwriters and the Company.
(k) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Lease (as defined in the Prospectus), the Lease
Indenture (as defined in the Prospectus) or the Trust
Indenture shall have occurred.
(l) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(m) Prior to the Closing Date, the Underwriters shall
have received from the Company evidence reasonably
satisfactory to the Underwriters that the Bonds have
received ratings of _____ or higher from Xxxxx'x Investors
Service, Inc. and ______ or higher from Standard & Poor's
Ratings Group.
(n) Between the date hereof and the Closing Date,
neither Xxxxx'x Investors Service, Inc. nor Standard and
Poor's Ratings Group shall have lowered its rating of any of
the Company's debt securities in any respect.
(o) The Bonds shall, upon delivery to the Underwriters
in accordance with this Underwriting Agreement, be secured
by the Pledged Lessor Bonds (as defined in the Prospectus)
in accordance with the Trust Indenture; the conditions
precedent to a refunding, as set forth in the Participation
Agreement (including, without limitation, Sections 2(b) and
10(c) thereof) and the Refunding Agreements (including,
without limitation, Article 2 thereof), shall have been met
prior to the issuance and delivery of such notes, with none
of such conditions precedent having been waived by the
Funding Corporation, the Company or the Trustee without the
consent of the Underwriters.
(p) The opinions of counsel required to be delivered by
the first two sentences of Section 10(c)(5) of the
Participation Agreement as a condition precedent to a
refunding shall also be addressed and delivered to the
Underwriters, except for the opinions of Special Counsel,
NRC Counsel and Special Louisiana Counsel to the Owner
Participants, all as described and/or defined in the
Participation Agreement, it being understood that such
opinions of counsel may be confirmations by counsel of
opinions previously delivered by such counsel in connection
with the transactions described in or contemplated by the
Participation Agreement, provided that such confirmations of
opinions shall be dated the Closing Date, shall confirm the
previously delivered opinions as of the Closing Date, and
shall either be addressed to the Underwriters or shall state
that the Underwriters may rely upon the previously delivered
opinions, as so confirmed, as if addressed to them.
(q) The opinions of counsel required to be delivered to
the Trustee pursuant to Section 2.04(e) of the Trust
Indenture shall also be addressed and delivered to the
Underwriters.
(r) The Underwriters shall have received payment in
full of the underwriting commissions specified in Section 2
hereof.
(s) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(t) The Funding Corporation and the Company will
furnish the Underwriters with additional conformed copies of
such opinions, certificates, letters and documents as may be
reasonably requested.
If any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 7 and in Section 11.
SECTION 5. Conditions of the Obligations of the
Funding Corporation and the Company. The obligations of the
Funding Corporation and the Company hereunder shall be subject to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the
Closing Date.
(b) At the Closing Date there shall be in full force
and effect an order or orders of the Commission under the
Holding Company Act authorizing the issuance and sale of the
Bonds on the terms set forth in or contemplated by this
Underwriting Agreement, the Trust Indenture and the
Prospectus.
In case any of the conditions specified in this Section
9 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to the
Underwriters. Any such termination shall be without liability of
any party to the other party, except as otherwise provided in
paragraph (g) of Section 7 and in Section 11.
SECTION 6. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact required to be stated
therein or contained in the Registration Statement, as amended or
supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the time
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, as each
may be amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the indemnity agreement contained in this paragraph shall
not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was
made in reliance upon and in conformity with information
furnished herein or in writing to the Company by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of or based
upon statements in or omissions from the statements of
eligibility on Form T-1 and Form T-2 under the TIA filed as
exhibits to the Registration Statement; and provided further,
that the indemnity agreement contained in this subsection shall
not inure to the benefit of any Underwriter or to the benefit of
any person controlling any Underwriter on account of any such
losses, claims, damages, liabilities, expenses or actions arising
from the sale of the Bonds to any person in respect of any Basic
Prospectus or the Prospectus, as supplemented or amended,
furnished by an Underwriter to a person to whom any of the Bonds
were sold (excluding in both cases, however, any document then
incorporated or deemed incorporated by reference therein),
insofar as such indemnity relates to any untrue or misleading
statement or omission made in the Basic Prospectus or the
Prospectus but eliminated or remedied prior to the consummation
of such sale in the Prospectus, or any amendment or supplement
thereto, furnished pursuant to Section 7(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation (if it is made available to the
Underwriters prior to settlement of such sale).
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon the
Registration Statement, the Basic Prospectus or the Prospectus
(including amendments or supplements thereto), against any party
in respect of which indemnity may be sought pursuant to any of
the preceding paragraphs, such party (hereinafter called the
indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims which are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 10 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) bear to the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 10(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 10(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 10(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 7. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 10 of, and the
representations and warranties and other agreements of the
Funding Corporation and the Company contained in, this
Underwriting Agreement shall remain operative and in full force
and effect regardless of (i) any investigation made by or on
behalf of any Underwriter or by or on behalf of the Funding
Corporation or the Company, or its directors or officers or any
of the other persons referred to in Section 10 hereof and (ii)
acceptance of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 10 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 8. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Bonds which it has
agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Bonds, the other
Underwriters shall be obligated to purchase the Bonds which such
defaulting Underwriter agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Bonds
which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such principal amount of Bonds
without written consent of such Underwriter. If any Underwriter
shall fail or refuse to purchase Bonds and the aggregate
principal amount of Bonds with respect to which such default
occurs is more than one-tenth of the aggregate principal amount
of the Bonds, the Company shall have the right (a) to require the
non-defaulting Underwriters to purchase and pay for the
respective principal amounts of Bonds that they had severally
agreed to purchase hereunder, and, in addition, the principal
amount of Bonds that the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to one-
ninth of the respective principal amount of Bonds that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of
the NASD (or, if not members of the NASD, who are foreign banks,
dealers or institutions not registered under the Exchange Act and
who agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall
give written notice thereof to the Underwriters within 24 hours
(excluding any Saturday, Sunday or legal holiday) of the time
when the Company learns of the failure or refusal of any
Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as
the Company shall determine. In the event the Company shall be
entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this
Underwriting Agreement. In the absence of such election by the
Company, this Underwriting Agreement will, unless otherwise
agreed by the Company and the non-defaulting Underwriters,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 7
and in Section 11. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 9. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from Xxxxxx Xxxxxxx & Co. Incorporated to the Company and the
Funding Corporation, if (a) after the execution and delivery of
this Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended on the New York Stock
Exchange by The New York Stock Exchange, Inc., the Commission or
other governmental authority, (ii) minimum or maximum ranges for
prices shall have been generally established on the New York
Stock Exchange by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (iii) a general
moratorium on commercial banking activities shall have been
declared by either Federal or New York State authorities, or (iv)
there shall have occurred any material outbreak or escalation of
hostilities or any calamity or crisis that, in the judgment of
Xxxxxx Xxxxxxx & Co. Incorporated, is material and adverse and
(b) in the case of any of the events specified in clauses (a) (i)
through (iv), such event singly or together with any other such
event makes it, in the reasonable judgment of Xxxxxx Xxxxxxx &
Co. Incorporated, impracticable to market the Bonds. This
Underwriting Agreement shall also be subject to termination, upon
notice by Xxxxxx Xxxxxxx & Co. Incorporated as provided above,
if, in the judgment of Xxxxxx Xxxxxxx & Co. Incorporated, the
subject matter of any amendment or supplement (prepared by the
Company) to the Prospectus (except for information relating
solely to the manner of public offering of the Bonds by the
Underwriters or to the activity of the Underwriters) filed or
issued after the effectiveness of this Underwriting Agreement by
the Company shall have materially impaired the marketability of
the Bonds. Any termination hereof, pursuant to this Section 13,
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 7 and in
Section 11.
SECTION 10. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to Xxxxxx
Xxxxxxx & Co. Incorporated. This Underwriting Agreement may be
executed in any number of separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one and
the same agreement. This Underwriting Agreement shall inure to
the benefit of each of the Company, the Funding Corporation, the
Underwriters and, with respect to the provisions of Section 10,
each director, officer and other persons referred to in Section
10, and their respective successors. Should any part of this
Underwriting Agreement for any reason be declared invalid, such
declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of
any Bonds from the Underwriters.
SECTION 11. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Xxxxxx Xxxxxxx & Co. Incorporated at the address
set forth at the beginning of this Underwriting Agreement (to the
attention of the General Counsel), if to the Company, shall be
mailed or delivered to it at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxx 00000, Attention: Secretary, if to Entergy Services,
Inc., shall be mailed or delivered to it at 000 Xxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention: Treasurer or, if to the
Funding Corporation, shall be mailed or delivered to it c/o
_________________________________________________, with a copy to
________________________________.
Very truly yours,
W3A FUNDING CORPORATION
By:
Name:
Title:
LOUISIANA POWER & LIGHT COMPANY
By:
Name:
Title:
Accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
CITICORP SECURITIES, INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
Name:
Title:
EXHIBIT A
[Letterhead of Monroe & Lemann]
______________, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We, together with Xxxx & Priest LLP, of New York, New
York, have acted as counsel for Louisiana Power & Light Company
(the "Company") in connection with the issuance and sale to you
pursuant to the Underwriting Agreement, effective __________ __,
1996 (the "Underwriting Agreement"), among W3A Funding
Corporation (the "Funding Corporation"), the Company and you, of
$____________ aggregate principal amount of the Funding
Corporation's Waterford 3 Secured Lease Obligation Bonds, _____%
Series due ____ and $___________ aggregate principal amount of
its Waterford 3 Secured Lease Obligation Bonds, _____% Series due
____ (collectively, the "Bonds"). The Bonds are being issued
pursuant to the Collateral Trust Indenture dated as of
___________ __, 1996, as amended by Supplemental Indenture No. 1
thereto, dated as of ___________ __, 1996 (the Collateral Trust
Indenture, as so amended, being hereinafter referred to as the
"Trust Indenture"), among the Funding Corporation, the Company
and Bankers Trust Company, as trustee (the "Trustee"). This
opinion is being rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement; and (f) the
proceedings before the Commission under the Holding Company Act
relating to the issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement. We have also
examined or caused to be examined such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. We have not examined
the Bonds, except specimens thereof, and we have relied upon a
certificate of the Trustee as to the authentication and delivery
thereof. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Underwriting
Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the State of Louisiana.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and has been duly qualified under the TIA and
no proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "Description of the Collateral Bonds
and the Indenture", "Description of the Lease Indentures",
"Description of the Leases" and "Other Agreements", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(5) The execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture and
the consummation of the transactions contemplated thereby (a)
will not violate any provision of the Company's Restated Articles
of Incorporation or By-Laws, each as amended, (b) will not
violate any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as contemplated by
the Trust Indenture) any of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to us (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction).
(6) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the statements of eligibility on Form T-1 and Form T-2 filed as
exhibits to the Registration Statement, upon which we do not
pass) the TIA, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the day first
filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(7) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and the execution, delivery and performance
by the Company of the Underwriting Agreement and the Trust
Indenture; to the best of our knowledge, said order is in full
force and effect; no further approval, authorization, consent or
other order of any governmental body including without limitation
the Nuclear Regulatory Commission (other than under the
Securities Act, which has been duly obtained, or in connection or
compliance with the provisions of the securities or blue sky laws
of any jurisdiction) is legally required to permit the issuance
and sale of the Bonds by the Funding Corporation pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
(8) Assuming the capacity of the Owner Participant (as
defined in the Prospectus), the Owner Trustee and the Lease
Indenture Trustee (as defined in the Prospectus) to engage in the
transactions contemplated by the Lease Indenture (as defined in
the Prospectus) and the Transaction Documents, (a) the Pledged
Lessor Bonds (as defined in the Prospectus) are equally and
ratably secured by a lien on and security interest in (i) the
related Undivided Interest (as defined in the Prospectus) and
(ii) the rights of the Owner Trustee under the Transaction
Documents, including the right to receive all payments of Basic
Rent (as defined in Appendix A to the Participation Agreement)
and certain other payments made by the Company, subject to
certain exceptions (including, but not limited to, the creation
of liens in respect of moneys and securities not held by the
Lease Indenture Trustee), and (b) the execution by the Owner
Trustee and delivery to the Lease Indenture Trustee of the Lease
Indenture and the Transaction Documents, and the filings and/or
recordings heretofore effected, create a valid and perfected
first lien thereon and security interest therein (subject only to
Permitted Liens) in favor of Funding Corporation. The
description of the Indenture Estate contained in the Lease
Indenture is adequate under the laws of the State of Louisiana to
create the lien therein that the Lease Indenture purports to
create.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company and with the independent certified public accountants
of the Company who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the
Registration Statement, at the Effective Date, 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 that the Prospectus, at
the time first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act and at
the date hereof, 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.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement, the
Prospectus or as to the statements of eligibility on Form T-1 and
Form T-2 filed as exhibits to the Registration Statement or as to
the information contained in the Prospectus Supplement under the
caption "Certain Terms of the Collateral Bonds--Book-Entry Only
System."
[We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct.] We are members of the Louisiana Bar
and do not hold ourselves out as experts on the laws of any other
state. We have examined the opinions of even date herewith
rendered to you by Xxxx & Priest LLP and Winthrop, Stimson,
Xxxxxx & Xxxxxxx, and we concur in the conclusions expressed
therein insofar as they involve questions of Louisiana law. As
to all matters of New York law, we have relied, with your
approval, upon the opinion of even date herewith addressed to you
by Xxxx & Priest LLP.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose without our prior written
consent, except that Xxxx & Priest LLP and Winthrop, Stimson,
Xxxxxx & Xxxxxxx may rely on this opinion as to all matters of
Louisiana law in rendering their opinions required to be
delivered under the Underwriting Agreement.
Very truly yours,
MONROE & LEMANN
(A Professional Corporation)
By:
EXHIBIT B
[Letterhead of Xxxx & Priest LLP]
______________, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We, together with Monroe & Lemann (A Professional
Corporation), of New Orleans, Louisiana, have acted as counsel
for Louisiana Power & Light Company (the "Company") in connection
with the issuance and sale to you pursuant to the Underwriting
Agreement, effective ____________ __, 1996 (the "Underwriting
Agreement"), among W3A Funding Corporation (the "Funding
Corporation"), the Company and you, of $___________ aggregate
principal amount of the Funding Corporation's Waterford 3 Secured
Lease Obligation Bonds, _____% Series due ____ and $___________
aggregate principal amount of its Waterford 3 Secured Lease
Obligation Bonds, _____% Series due ____ (collectively, the
"Bonds"). The Bonds are being issued pursuant to the Collateral
Trust Indenture, dated as of __________ __, 1996, as amended by
Supplemental Indenture No. 1, dated as of __________ __, 1996
(the Collateral Trust Indenture, as so amended, being hereinafter
referred to as the "Trust Indenture"), among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee"). This opinion is being rendered to you at the
request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement; and (f) the
proceedings before the Commission under the Holding Company Act
relating to the issuance and sale of the Bonds by the Funding
Corporation and the execution and delivery by the Company of the
Trust Indenture and the Underwriting Agreement. We have also
examined or caused to be examined such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. We have not examined
the Bonds, except specimens thereof, and we have relied upon a
certificate of the Trustee as to the authentication and delivery
thereof. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Underwriting
Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and has been duly qualified under the TIA, and
no proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "Description of the Collateral Bonds
and the Indenture", "Description of the Lease Indentures",
"Description of the Leases" and "Other Agreements", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture and
the consummation of the transactions contemplated thereby (a)
will not violate any provision of the Company's Restated Articles
of Incorporation or By-Laws, each as amended, (b) will not
violate any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as contemplated by
the Trust Indenture) any of the assets of the Company pursuant to
the provisions of, any mortgage, indenture, contract, agreement
or other undertaking known to us (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction).
(5) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the statements of eligibility on Form T-1 and Form T-2 filed as
exhibits to the Registration Statement, upon which we do not
pass) the TIA, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the day first
filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
or threatened under Section 8(d) of the Securities Act.
(6) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and the execution, delivery and performance
by the Company of the Trust Indenture and Underwriting Agreement;
to the best of our knowledge, said order is in full force and
effect; no further approval, authorization, consent or other
order of any governmental body including without limitation the
Nuclear Regulatory Commission (other than under the Securities
Act, which has been duly obtained, or in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required to permit the issuance and sale
of the Bonds by the Funding Corporation pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness,
completeness and fairness of the statements made by the Company
and information included in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph (3)
above. In connection with the preparation by the Company of the
Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company and with the
independent certified public accountants of the Company who
examined certain of the financial statements included or
incorporated by reference in the Registration Statement. Our
examination of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at
the Effective Date, 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 that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, 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. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus, as to the statements of
eligibility on Form T-1 and Form T-2 filed as exhibits to the
Registration Statement or as to the information contained in the
Prospectus Supplement under the caption "Certain Terms of the
Collateral Bonds--Book-Entry Only System."
[We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct.] We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. As to all matters of Louisiana law, we have relied upon
the opinion of even date herewith addressed to you of Monroe &
Lemann (A Professional Corporation). We have not examined into
and are not passing upon matters relating to title to property,
franchises or the lien of the Trust Indenture.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner by any other
person or for any other purpose without our prior written
consent, except that Monroe & Lemann (A Professional Corporation)
may rely on this opinion as to matters of New York law in
rendering its opinion required to be delivered under the
Underwriting Agreement.
Very truly yours,
XXXX & PRIEST LLP
EXHIBIT C
[Letterhead of Xxxx & Priest LLP]
______________, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to W3A Funding
Corporation ("Funding Corporation"), in connection with the
issuance and sale to you of $___________ aggregate principal
amount of its Waterford 3 Secured Lease Obligation Bonds, _____%
Series due ____ and $___________ of its Waterford 3 Secured Lease
Obligation Bonds, _____% Series due ____ (collectively, the
"Bonds"), pursuant to the Underwriting Agreement, effective
__________ __, 1996 (the "Underwriting Agreement"), among Funding
Corporation, Louisiana Power & Light Company ("LP&L") and you.
The Bonds are being issued pursuant to the Collateral Trust
Indenture, dated as of ________ __, 1996 (the "Original
Indenture"), as amended by Supplemental Indenture No. 1 (the
"Supplemental Indenture"), dated as of ___________ __, 1996 (the
Original Indenture, as so amended, being hereinafter referred to
as the "Trust Indenture"), among Funding Corporation, LP&L and
Bankers Trust Company, as Trustee (the "Trustee"). This opinion
is being rendered to you at the request of Funding Corporation.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) Funding Corporation's Certificate of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds by Funding
Corporation and the execution and delivery by Funding Corporation
of the Trust Indenture and the Underwriting Agreement; and (f)
the proceedings before the Commission under the Holding Company
Act relating to the issuance and sale of the Bonds by Funding
Corporation, and the execution and delivery by Funding
Corporation of the Trust Indenture and the Underwriting
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Bonds, except specimens
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) Funding Corporation is duly organized and validly
existing as a corporation in good standing under the laws of the
State of Delaware and has due corporate power and authority to
own its properties and conduct its business as described in the
Prospectus.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of
Funding Corporation, has been duly and validly executed and
delivered by Funding Corporation, is a legal, valid and binding
instrument enforceable against Funding Corporation in accordance
with its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and has been duly qualified
under the TIA, and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(3) Funding Corporation has executed such instruments
and complied with such other formalities as are required by the
Trust Indenture as a condition precedent to the creation and
issuance of the Bonds.
(4) The Bonds have been duly and validly authorized,
executed and issued by Funding Corporation and are legal, valid
and binding obligations of Funding Corporation enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), are entitled to
the benefit of the security afforded by the Trust Indenture.
(5) The Registration Statement has become, and on the
date hereof is, effective under the Securities Act, and to the
best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose are pending or threatened under Section 8(d) of
the Act.
(6) An appropriate order has been entered by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and the execution, delivery and performance
by Funding Corporation of the Trust Indenture and Underwriting
Agreement; to the best of our knowledge, said order is in full
force and effect; no further approval, authorization, consent or
other order of any governmental body (other than under the
Securities Act, which has been duly obtained, or in connection or
compliance with the provisions of the securities or blue sky laws
of any jurisdiction) is legally required to permit the issuance
and sale of the Bonds by the Funding Corporation pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Funding Corporation of
its obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
(7) It is not necessary for Funding Corporation to
register as an investment company pursuant to the Investment
Company Act of 1940, as amended, in order to participate in the
transactions contemplated by the Prospectus.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by Funding Corporation.
(9) The execution, delivery and performance by Funding
Corporation of the Underwriting Agreement, the Bonds or the Trust
Indenture and the consummation of the transactions contemplated
thereby (a) will not violate any provision of Funding
Corporation's Certificate of Incorporation or By-Laws, each as
amended, (b) will not violate any provision of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance on or security interest in (except as
contemplated by the Trust Indenture) any of the assets of Funding
Corporation pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to us
(having made due inquiry with respect thereto) to which Funding
Corporation is a party or which purports to be binding upon the
Company or upon any of its assets, and (c) will not violate any
provision of any law or regulation applicable to Funding
Corporation or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality applicable
to Funding Corporation (except that various consents of, and
filings with, governmental authorities may be required to be
obtained or made, as the case may be, in connection or compliance
with the provisions of the securities or blue sky laws of any
jurisdiction).
(10) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "W3A Funding Corporation",
"Description of the Collateral Bonds and the Indenture",
"Description of the Lease Indentures", "Description of the
Leases" and "Other Agreements", insofar as they purport to
constitute summaries of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
(11) No recordation, registration or filing of the
Original Indenture, the Supplemental Indenture or any other
supplemental indenture or instrument of further assurance is
necessary to make effective the lien intended to be created by
the Trust Indenture or fully to preserve and protect the rights
of the bondholders and the Trustee.
The opinion expressed in paragraph (11) above assumes
(x) the due authorization, execution and delivery of the Original
Indenture and the Supplemental Indenture by each of the parties
thereto (other than Funding Corporation) and that the same
constitute the legal, valid and binding agreements of such
parties, enforceable in accordance with their respective terms,
(y) that no property of the types described in the Granting
Clauses of the Original Indenture has been subjected to the lien
of the Trust Indenture, and (z) that the Trustee has obtained and
continues to retain possession of the Pledged Lessor Bonds (as
defined in the Prospectus). In connection with such opinion, we
note that each of the filings and recordings of the Original
Indenture and the Supplemental Indenture described in Schedule 1
to the Refunding Agreements has been made.
In rendering the opinions set forth above, we have not
passed upon and do not purport to pass upon the application of
any laws of any jurisdiction other than the Federal laws of the
United States, the law of the State of New York and the General
Corporation Law of the State of Delaware.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon in any manner or for any
other purpose by any other person without our prior written
consent, except that the Trustee, Funding Corporation and LP&L
are entitled to rely on this opinion as if addressed to them.
Very truly yours,
XXXX & PRIEST LLP
EXHIBIT D
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
______________, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
Citicorp Securities, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $___________ in aggregate principal amount of
Waterford 3 Secured Lease Obligation Bonds, _____% Series due
____ and $___________ in aggregate principal amount of Waterford
3 Secured Lease Obligation Bonds, _____% Series due ____
(collectively, the "Bonds") issued by W3A Funding Corporation
(the "Funding Corporation") pursuant to the Underwriting
Agreement, effective __________ __, 1996 (the "Underwriting
Agreement"), among Funding Corporation, Louisiana Power & Light
Company ("LP&L") and you. The Bonds are being issued pursuant to
the Collateral Trust Indenture, dated as of ________ __, 1996, as
amended by Supplemental Indenture No. 1, dated as of ___________
__, 1996 (the Collateral Trust Indenture, as so amended, being
hereinafter referred to as the "Trust Indenture"), among Funding
Corporation, LP&L and Bankers Trust Company, as Trustee (the
"Trustee").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon an opinion of even date herewith addressed
to you of Monroe & Lemann (A Professional Corporation) as to all
matters of Louisiana law related to this opinion. We have
reviewed said opinion and believe that it is satisfactory. We
have also reviewed the opinion of Xxxx & Priest LLP required by
Section 8(d) of the Underwriting Agreement, and we believe said
opinion to be satisfactory.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. As
to various questions of fact material to this opinion, we have
relied upon representations of the Company and the Funding
Corporation and statements in the Registration Statement
hereinafter mentioned. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to the originals
of the documents submitted to us as certified or photostatic
copies. We have not examined the Bonds, except specimens
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof. We have not examined
into, and are expressing no opinion or belief as to matters
relating to, incorporation of the Company or the Funding
Corporation, titles to property, franchises or the liens of the
Trust Indenture or the Lease Indenture (as defined in the
Prospectus). Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, and is a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and is qualified under the TIA, and, to our
knowledge, no proceedings to suspend such qualification have been
instituted or threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations
of the Funding Corporation, enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Selected Information",
"Selected Information Relating to the Collateral Bonds", "Certain
Terms of the Collateral Bonds", "Security and Source of Payment
for the Collateral Bonds", "Description of the Collateral Bonds
and the Indenture", "Description of the Lease Indentures",
"Description of the Leases" and "Other Agreements", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Funding Corporation and
the Company.
(5) An appropriate order has been issued by the
Commission under the Holding Company Act authorizing the issuance
and sale of the Bonds and, to the best of our knowledge, such
order is in full force and effect; and no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act, which has been duly
obtained, or in connection or compliance with the provisions of
the securities or "blue sky" laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Funding Corporation pursuant to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the statements of eligibility on Form T-1 and Form T-2 filed as
exhibits to the Registration Statement, upon which we do not
pass) the TIA, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; and, with respect to documents or portions thereof
filed with the Commission pursuant to the Exchange Act, and
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, such documents or portions thereof, on the day first
filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act; and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose are pending or
threatened under Section 8(d) of the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and information included or incorporated by reference in
the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we have had discussions with certain officers,
employees and representatives of the Funding Corporation, the
Company and Entergy Services, Inc., with counsel for the Funding
Corporation and the Company and with your representatives. Our
review of the Registration Statement and the Prospectus, and our
discussions, did not disclose to us any information which gives
us reason to believe that the Registration Statement, at the
Effective Date, 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
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, 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. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or Prospectus, as to the statements of eligibility on
Form T-1 and Form T-2 filed as exhibits to the Registration
Statement or as to the information contained in the Prospectus
Supplement under the caption "Certain Terms of the Collateral
Bonds--Book-Entry Only System.".
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, XXXXXX & XXXXXXX
EXHIBIT E
ITEMS CONTAINED IN EXCHANGE ACT DOCUMENTS PURSUANT TO
SECTION 8(f)(iv) OF THE UNDERWRITING AGREEMENT FOR INCLUSION IN
THE LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
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