EXHIBIT 1.01
12,000,000 Preferred Securities
Entergy London Capital, L.P.
[____]% Cumulative Quarterly Income Preferred Securities, Series
A ("QUIPS"4)
(liquidation preference $25 per preferred security)
fully and unconditionally guaranteed, as set forth herein, by
Entergy London Investments plc
UNDERWRITING AGREEMENT
[________], 1997
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
As representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
The undersigned, Entergy London Capital, L.P. (the
"Partnership"), a special purpose limited partnership formed
under the Revised Uniform Limited Partnership Act of the State of
Delaware (Title 6, Chapter 17 of the Delaware Code, (the
"Delaware Act"), proposes to issue and sell to the several
underwriters named in Schedule I hereto (the "Underwriters,"
which term, when the context permits, shall also include any
underwriters substituted as hereinafter in Section 11 provided),
for whom you are acting as representatives (in such capacity, you
shall hereinafter be referred to as the "Representatives"),
12,000,000 of its [____]% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security), representing limited partner interests in the
Partnership (the "Preferred Securities"), as follows:
__________________________
4 QUIPS is a servicemark of Xxxxxxx, Xxxxx & Co.
SECTION 1. Purchase and Sale of Preferred Securities. On
the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the
Partnership shall issue and sell to each of the Underwriters
named in Schedule I hereto, and each Underwriter shall purchase
from the Partnership at the time and place herein specified,
severally and not jointly, the number of Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto
at a purchase price of $25.00 per Preferred Security.
The Company (as defined herein) (a) agrees to issue the
Company Securities (as defined herein) concurrently with the
issue and sale of the Preferred Securities as contemplated herein
and (b) guarantees the timely performance by the Partnership of
its obligations under this Section 1. The Partnership agrees to
purchase the Debentures (as defined herein) with the proceeds of
the Preferred Securities (as defined herein) and the capital
contribution of the Company, as general partner of the
Partnership (in such capacity, the "General Partner"), as
contemplated herein.
Because the proceeds of the sale of the Preferred
Securities, together with the capital contribution of the General
Partner, will be used to purchase the Debentures, the Company
hereby agrees to pay on the Closing Date (as defined herein) to
Xxxxxxx, Xxxxx & Co., for the accounts of the several
Underwriters, as compensation for their arranging the investment
therein of such proceeds, an amount equal to $[_____] per
Preferred Security ($[_____] per Preferred Security sold to
certain institutions).
SECTION 2. Description of Preferred Securities, Debentures
and Guarantee. The Preferred Securities will be guaranteed by
Entergy London Investments plc, a public limited company
incorporated under the laws of England and Wales (the "Company"
and, together with the Partnership, the "Offerors"), with respect
to distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to, and to the extent set
forth in, the Guarantee Agreement (the "Guarantee Agreement"),
dated as of [________], 1997, between the Company and The Bank of
New York, as Trustee (the "Guarantee Trustee").
The proceeds from the sale of the Preferred Securities will
be combined with the capital contribution of the General Partner
and will be used by the Partnership to purchase $ _______
aggregate principal amount of [____]% Junior Subordinated
Deferrable Interest Debentures, Series A issued by the Company
(the "Debentures" and, together with the Guarantee, the "Company
Securities"). The Preferred Securities will be issued pursuant
to the Amended and Restated Limited Partnership Agreement, dated
as of [________], 1997 (the "Partnership Agreement"), among the
Company, as General Partner, Xxxxxxx X. Xxxxx, Xx., as the
initial limited partner (the "Initial Limited Partner"), and such
other Persons (as defined therein) who become Partners (as
defined therein) as provided therein. The Debentures will be
issued pursuant to an Indenture for Unsecured Subordinated Debt
Securities relating to Preferred Securities, dated as of
[_________], 1997, as supplemented by a certificate of an officer
of the Company pursuant to resolutions of the Board of Directors
of the Company (the "Indenture"), between the Company and The
Bank of New York, as Trustee (the "Debenture Trustee"). The
Preferred Securities and the Company Securities are referred to
herein as the "Securities."
SECTION 3. Representations and Warranties of the Offerors.
Each of the Offerors jointly and severally represents and
warrants to the several Underwriters, and covenants and agrees
with the several Underwriters, that:
(a) The Company is duly organized and validly existing
as a public limited company in good standing under the laws of
England and Wales and has the necessary corporate power and
authority to conduct the business that it is described in the
Prospectus (as defined herein) as conducting, to own and operate
the properties owned and operated by it in such business, to
issue the Company Securities, to enter into and perform its
obligations under this Underwriting Agreement, the Partnership
Agreement, the Indenture, the Guarantee Agreement and the Company
Securities, to purchase, own, and hold the general partner
interests of the Partnership and to consummate the transactions
herein and therein contemplated. The Company is the sole General
Partner of the Partnership. The Company is duly qualified as a
foreign corporation to transact business and is in good standing
in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification, except where the failure to so qualify would not
have a material adverse effect on the financial condition of the
Company and its subsidiaries taken as a whole and would not
subject the Company to any material liability or disability.
(b) Each of London Electricity plc, London Electricity
Services Limited, The London Power Company Limited and London
Electricity Enterprises Limited (collectively, the "Significant
Subsidiaries") is (i) duly organized and validly existing as a
public limited company in good standing under the laws of England
and Wales, has the necessary corporate power and authority to
conduct the business that it is described in the Prospectus as
conducting and to own and operate the properties owned and
operated by it in such business and (ii) duly qualified as a
foreign corporation to transact business and is in good standing
in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification, except where the failure to so qualify would not
have a material adverse effect on the financial condition of the
Company and its subsidiaries taken as a whole and would not
subject the Company to any material liability or disability.
(c) The Partnership has been duly formed and is
validly existing as a limited partnership in good standing under
the Delaware Act, has the power and authority to own its
property, to conduct its business as described in the Prospectus,
to issue and sell the Preferred Securities, to enter into and
perform its obligations under this Underwriting Agreement and the
Preferred Securities and to consummate the transactions herein
contemplated; the Partnership has no subsidiaries and is duly
qualified to transact business and in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Partnership; the Partnership has conducted and will conduct no
business other than the transactions contemplated by this
Underwriting Agreement and described in the Prospectus; the
Partnership is not a party to or otherwise bound by any agreement
other than those described in the Prospectus and is not a party
to any action, suit or proceeding of any nature; the Partnership
is not and will not be classified as an association taxable as a
corporation for United States federal or United Kingdom income
tax purposes; and the Partnership is and will be treated as a
consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(d) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-1 (File Nos. 333-33331 and 333-33331-01) and a related
Preliminary Prospectus (as defined below) for the registration of
the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), and such registration statement, as amended,
has become effective. Such registration statement, as amended at
the time it, or the most recent post-effective amendment thereto
(or any registration statement filed pursuant to Rule 462(b)
under the Securities Act and hereinafter referred to as a "Rule
462(b) Registration Statement"), became or becomes effective,
including the information deemed to be part thereof pursuant to
Rule 430A(b) under the Securities Act, is hereinafter referred to
as the "Registration Statement," and the prospectus constituting
a part thereof, in the form filed pursuant to subsection (1) or
(4) of Rule 424(b) under the Securities Act ("Rule 424(b)), and
as it may thereafter be amended or supplemented pursuant to
Section 6(d) hereof, is hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in
connection with the offering of the Securities that differs from
the Prospectus filed with the Commission pursuant to Rule 424(b),
the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for
such use. For purposes herein, (i) "Preliminary Prospectus"
shall mean any preliminary prospectus included in the
Registration Statement prior to the Effective Date (as defined
below) or filed with the Commission pursuant to Rule 424(a) under
the Securities Act and (ii) "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment
thereto (or any Rule 462(b) Registration Statement) became or
becomes effective under the Securities Act.
(e) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Offerors will not file any amendment to the
Registration Statement or supplement to the Prospectus, without
prior notice to the Underwriters and to Winthrop, Xxxxxxx, Xxxxxx
& Xxxxxxx ("Counsel for the Underwriters"), or any such amendment
or supplement to which said Counsel shall reasonably object on
legal grounds in writing.
(f) The Registration Statement, the Indenture and the
Guarantee Agreement, at the Effective Date, will fully comply or
fully complied, and any Preliminary Prospectus, when delivered to
the Underwriters for their use in marketing the Preferred
Securities, fully complied, and the Prospectus, when delivered to
the Underwriters for their use in making confirmations of sales
of the Preferred Securities 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
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations
did or will be deemed to comply therewith. On the Effective
Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time that any
Preliminary Prospectus was delivered to the Underwriters for
their use in marketing the Preferred Securities, such Preliminary
Prospectus did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. At the time the Prospectus
is delivered to the Underwriters for their use in making
confirmations of sales of the Preferred Securities and at the
Closing Date, the Prospectus, as it may then be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (e) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Offerors 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 of the Guarantee Trustee
and the Debenture Trustee, respectively, as they may be amended,
filed as exhibits to the Registration Statement (the "Form T-
1s").
(g) All of the issued general and limited partner
interests of the Partnership (other than the Preferred
Securities) are owned by the General Partner and the Initial
Limited Partner, respectively, and have been duly and validly
authorized and validly issued, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(h) This Agreement has been duly authorized, executed
and delivered by each of the Partnership and the Company.
(i) The Partnership Agreement has been duly authorized
by the General Partner and, at the Closing Date, will have been
duly executed and delivered by the General Partner, and will
constitute a valid and binding instrument of the General Partner,
in its capacity as general partner of the Partnership,
enforceable against the General Partner in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Partnership Agreement
will conform to the description thereof in the Prospectus.
(j) The Guarantee Agreement has been duly qualified
under the Trust Indenture Act, has been duly authorized by the
Company and, at the Closing Date, will have been duly executed
and delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreement by the
Guarantee Trustee, will constitute a valid and binding instrument
of the Company, 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 by general equitable
principles (regardless of whether enforceability is considered in
a proceeding in equity or at law); and the Guarantee and the
Guarantee Agreement will conform to the descriptions thereof
contained in the Prospectus.
(k) The Preferred Securities have been duly authorized
by the Partnership and, when issued and delivered against payment
therefor in accordance with the provisions of this Agreement and
the Partnership Agreement, will constitute validly issued and
(subject to the terms of the Partnership Agreement) fully paid
and non-assessable limited partner interests in the Partnership
and will be entitled to the benefits of the Partnership
Agreement; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights; there are no
provisions in the Partnership Agreement the inclusion of which,
subject to the terms and conditions therein, or, assuming that
holders of the Preferred Securities, as limited partners of the
Partnership, take no action other than actions permitted by the
Partnership Agreement, the exercise of which, in accordance with
the terms and conditions therein, would cause holders of the
Preferred Securities, as limited partners of the Partnership, to
be deemed to be participating in the control of the business of
the Partnership; and the Preferred Securities will conform to the
description thereof contained in the Prospectus.
(l) The Indenture has been duly qualified under the
Trust Indenture Act, has been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered
by the Company, and assuming due authorization, execution and
delivery of the Indenture by the Debenture Trustee, will
constitute a valid and binding instrument of the Company,
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 by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law); and the Indenture will conform
to the description thereof contained in the Prospectus.
(m) The Debentures have been duly authorized and, on
the Closing Date, will have been duly executed by the Company
and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor by the
Partnership as described in the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting creditors' rights
and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law)
and will be entitled to the benefits of the Indenture; and the
Debentures will conform to the description thereof contained in
the Prospectus.
(n) Neither the Company nor any of its subsidiaries
has sustained since the date of the most recent audited financial
statements included in the Prospectus any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth in the Prospectus; and, since the
respective dates as of which information is given in the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in the business, property or
financial condition of the Company and its subsidiaries taken as
a whole, otherwise than as set forth in the Prospectus.
(o) The issuance and sale by the Company of the
Company Securities and the execution, delivery and performance by
the Company of the Indenture, this Underwriting Agreement, the
Partnership Agreement and the Guarantee Agreement, and the
consummation of the transactions herein and therein contemplated,
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
[the Credit Facility Agreement dated December 17, 1996, as
amended, among the Company, ABN AMRO Bank, N.V., Bank of America
International Limited and Union Bank of Switzerland], [credit
facilities resulting from the reorganization of the corporate
structure so that the Company is no longer the acquisition
facility borrower] (collectively, the "Acquisition Debt
Agreements"), or any other indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company, the Significant Subsidiaries or [upstream entities that
will be a party to the Acquisition Debt Agreements after the
corporate reorganization] are a party or by which the Company,
the Significant Subsidiaries or [upstream entities that will be a
party to the Acquisition Debt Agreements after the corporate
reorganization] are bound or to which any of the property or
assets of the Company, the Significant Subsidiaries or [upstream
entities that will be a party to the Acquisition Debt Agreements
after the corporate reorganization] are subject, nor will such
action result in any violation of the provisions of the
Memorandum and Articles of Association of the Company or the
Significant Subsidiaries, each as amended, or any statute, rule,
regulation or other law, or any order or judgment, of any court
or governmental agency or body having jurisdiction over the
Company or the Significant Subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the formation of the
Partnership, the issue and sale of the Securities or the
consummation by the Partnership or the Company of the
transactions contemplated by this Underwriting Agreement, the
Indenture, the Partnership Agreement or the Guarantee Agreement
except such as have been, or will be prior to the Closing Date,
obtained under the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act
and the Public Utility Holding Company Act of 1935, as amended
(the "1935 Act"), and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Preferred Securities by the Underwriters.
(p) The Company has an authorized capitalization as
set forth in the Prospectus and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are
owned by direct or indirect subsidiaries of Entergy Corporation;
and all of the issued shares of capital stock of each subsidiary
of the Company (including, without limitation, London Electricity
plc) have been duly and validly authorized and issued, are fully
paid and non-assessable and, except as otherwise set forth in the
Prospectus, are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(q) Neither the Company nor any of the Significant
Subsidiaries is in violation of its Memorandum and Articles of
Association, as amended, or is in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which
the Company or the Significant Subsidiaries is a party or by
which any of them is bound or to which any of their respective
properties or assets is subject.
(r) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or the Significant Subsidiaries is a party or of which
any property of the Company or the Significant Subsidiaries is
the subject that, if determined adversely to the Company or the
Significant Subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated.
(s) The Company, London Electricity plc and the other
Significant Subsidiaries are entitled to the exemption from the
1935 Act provided by Sections 33(a)(1) and (c)(1) thereof.
(t) The independent certified public accountants,
Xxxxxxx & Xxxxxxx L.L.P., who have audited the financial
statements included in the Registration Statement and the
Prospectus are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission
thereunder.
(u) The financial statements, together with the
related schedules and notes, included in the Registration
Statement and the Prospectus, present fairly the consolidated
financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the
basis stated in the Registration Statement and the Prospectus at
the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; the other financial and statistical
information and data included in the Registration Statement and
the Prospectus are accurately presented and prepared on a basis
consistent with such financial statements and the books and
records of the Company and its subsidiaries; and the pro forma
financial statements included in the Registration Statement and
the Prospectus comply in all material respects with Article 11 of
Regulation S-X under the Securities Act.
(v) Neither the Company nor the Partnership is, and
upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus, will be, an "investment company" or
a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(w) The Partnership is not in violation of its
Certificate of Limited Partnership dated as of August 4, 1997
filed with the State of Delaware on August 4, 1997, as amended,
or the Partnership Agreement; the execution, delivery and
performance by the Partnership of its obligations under this
Underwriting Agreement and the Preferred Securities will not
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Partnership is now a party.
(x) Except as set forth in or contemplated by the
Prospectus, each of the Company and the Significant Subsidiaries
possesses adequate franchises, licenses, permits and other rights
to conduct its respective business and operations as now
conducted, without any known conflicts with the rights of others
that could have an adverse effect on the Company and the
Significant Subsidiaries.
(y) No labor dispute with the employees of the Company
or the Significant Subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company does not have knowledge
of any existing or imminent labor disturbance by the employees of
any of the principal customers or contractors of the Company or
the Significant Subsidiaries, which, in either case, may
reasonably be expected to result in a material adverse effect on
the financial condition of the Company and its subsidiaries taken
as a whole.
(z) Each of the Company and the Significant
Subsidiaries has good and marketable title to all real property
and other properties owned by the Company and the Significant
Subsidiaries (other than properties which are not material to the
financial condition of the Company and its subsidiaries taken as
whole or the conduct of the business of the Company and the
Significant Subsidiaries), in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Registration Statement and the Prospectus or (b)
do not, singly or in the aggregate, materially adversely affect
the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the
Company and the Significant Subsidiaries; and all of the leases
and subleases material to the business of the Company and the
Significant Subsidiaries and under which the Company and the
Significant Subsidiaries hold properties described in the
Registration Statement and the Prospectus are in full force and
effect, and the Company has no notice of any material claim of
any sort that has been asserted by anyone adverse to the rights
of the Company or the Significant Subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning
the rights of the Company or the Significant Subsidiaries to the
continued possession of the leased or subleased premises under
any such lease or sublease.
(aa) Except as described in the Registration Statement
and the Prospectus and except such matters as would not, singly
or in the aggregate, result in a material adverse effect on the
financial condition of the Company and its subsidiaries, taken as
a whole, (A) the Company and the Significant Subsidiaries are not
in violation of any national, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health,
the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and the Significant Subsidiaries have all
permits, authorizations and approvals required under any
applicable Environmental Laws and is in compliance with their
requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or the Significant
Subsidiaries and (D) there are no events or circumstances known
to the Company or the Significant Subsidiaries that may
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or the Significant Subsidiaries relating to Hazardous
Materials or Environmental Laws.
(bb) The Company and its obligations under this
Underwriting Agreement, the Company Securities, the Partnership
Agreement, the Guarantee Agreement and the Indenture are subject
to civil and commercial actions, suits or proceedings and neither
it nor any of its properties, assets or revenues has, in the
United Kingdom or any political subdivision thereof or in the
United States or any political subdivision thereof, any right of
immunity from any legal action, suit or proceeding, from the
giving of any relief in any such legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of
any court, from service of process, attachment upon or prior to
judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of a judgment, in
any such jurisdiction, with respect to its obligations,
liabilities or any other matter under or arising out of or in
connection with the issuance of the Company Securities; and, to
the extent that the Company or the Significant Subsidiaries or
any of their respective properties, assets or revenues may have
or may hereafter become entitled to any such right of immunity in
any jurisdiction, the Company has effectively waived such right
and consented to such relief and enforcement pursuant to
Section 15 of this Underwriting Agreement; nothing in this clause
(bb) shall be deemed to waive any defense (other than any such
immunity) available to the Company.
(cc) The Company has the power to submit to the
jurisdiction of any federal or state court in the State of New
York, County of New York, and has the power to designate, appoint
and empower an agent for service of process in any legal action,
suit or proceeding based on or arising under this Underwriting
Agreement in any federal or state court in the State of New York,
County of New York.
(dd) Payments of principal and interest in respect of
the Debentures to persons outside the United Kingdom are not
subject under the laws of the United Kingdom or any political
subdivision thereof or therein to any withholding or similar
charges for or on account of taxation or otherwise.
(ee) No exchange control authorization or any other
authorization, approval, consent or license of any governmental
authority or agency of or in the United Kingdom is required for
the payment by the Company of any amounts in United States
dollars pursuant to the terms of the Debentures or the Guarantee
Agreement.
SECTION 4. Offering. The Offerors are advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities
as soon after the effectiveness of this Underwriting Agreement as
in their judgment the Underwriters deem advisable. The Offerors
are further advised by the Representatives that the Preferred
Securities will be offered to the public at the initial public
offering price specified in the Prospectus.
SECTION 5. Time and Place of Closing; Delivery to
Underwriters. Delivery of certificates for the Preferred
Securities and payment of the purchase price therefor by wire
transfer of immediately available 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 [________], 1997, or at
such other time on the same or such other day as shall be agreed
upon by the Offerors and the Representatives, or as may be
established in accordance with Section 11 hereof. The hour and
date of such delivery and payment are herein called the "Closing
Date."
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and in such
denominations as the Underwriters shall request not later than
two full business days prior to the Closing Date. The
certificates evidencing the Preferred Securities shall be
delivered to the Representatives through the facilities of The
Depository Trust Company in New York, New York for the account of
the Representatives with any transfer taxes payable in connection
with the transfer of the Preferred Securities duly paid, against
payment of the purchase price therefor.
On the Closing Date, the Company will pay, or cause to be
paid, the compensation payable at such time to the Underwriters
pursuant to Section 1 hereof by wire transfer in immediately
available funds to an account designated by Xxxxxxx, Xxxxx & Co.,
for the accounts of the several Underwriters.
SECTION 6. Covenants of the Offerors. Each of the
Offerors jointly and severally covenants and agrees with the
several Underwriters that:
(a) Not later than the Closing Date, the Offerors will
deliver to the Representatives a copy of the Registration
Statement in the form that it became effective or a conformed
copy thereof, certified by an officer of the Company to be in
such form.
(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(b) and will advise the
Representatives 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 that either of the
Offerors shall have received notice. Each of the Offerors 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 as the Underwriters are
required by law to deliver a prospectus after this Underwriting
Agreement has become effective, if any event relating to or
affecting the Company or the Partnership, or of which the Company
or the Partnership shall be advised by the Representatives in
writing, shall occur which in the opinion of the Company 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
Preferred Securities, the Company will amend or supplement the
Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus 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 6(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, on behalf of the Partnership,
make generally available to the Partnership's security holders,
as soon as practicable, an earning statement (which need not be
audited) covering a period of at least twelve months beginning
after the "effective date of the registration statement" within
the meaning of Rule 158 under the Securities Act, which earning
statement shall be in such form, and be made generally available
to security holders in such a manner, as to meet the requirements
of the last paragraph of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Offerors will furnish such proper information as may be
lawfully required, and will otherwise cooperate in qualifying the
Preferred Securities and the Debentures for offer and sale, under
the blue sky laws of such jurisdictions as the Representatives
may reasonably designate, provided that the Offerors shall not be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements
deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay
all fees, expenses and taxes incident to the performance of each
Offeror's obligations under this Underwriting Agreement
including, but not limited to, (i) the preparation and filing of
the Registration Statement and any post-effective amendment
thereto, (ii) the printing, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters,
(iii) legal counsel relating to the qualification of the
Preferred Securities and the Debentures under the blue sky laws
of various jurisdictions, in an amount not to exceed $12,500,
(iv) the printing and delivery to the Underwriters of reasonable
quantities of copies of the Registration Statement, the
preliminary (or any supplemental) blue sky survey, any
Preliminary Prospectus and the Prospectus and any amendment or
supplement thereto, except as otherwise provided in paragraph (d)
of this Section 6, (v) the rating of the Preferred Securities and
the Debentures by one or more nationally recognized statistical
rating agencies, (vi) filings or other notices (if any) with or
to, as the case may be, the National Association of Securities
Dealers, Inc. (the "NASD") in connection with its review of the
terms of the offering, and (vii) the listing of the Preferred
Securities on the New York Stock Exchange (the "NYSE"), the
listing of the Debentures on the Luxembourg Stock Exchange and
the registration of the Preferred Securities and, if the
Preferred Securities are exchanged for Debentures, the Debentures
under the Exchange Act in accordance with Section 6(i) hereof.
Except as provided above, the Company shall not be required to
pay any expenses of the Underwriters, except that, if this
Underwriting Agreement shall be terminated in accordance with the
provisions of Section 7, 8 or 12 hereof, the Company will
reimburse the Underwriters for (A) the reasonable fees and
expenses of Counsel for the Underwriters, whose fees and expenses
the Underwriters agree to pay in any other event, and (B)
reasonable out-of-pocket expenses 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.
(h) Each of the Offerors will not offer, sell,
contract to sell or otherwise dispose of any limited partner
interests in the Partnership, or any preferred stock or any other
securities of the Partnership or the Company that are
substantially similar to the Preferred Securities, including any
guarantee of such securities, or any securities convertible into
or exchangeable for or that represent the right to receive
limited partner interests, preferred stock or any such
substantially similar securities of either the Partnership or the
Company, except for the Preferred Securities and the Guarantee,
without the consent of the Representatives until the earlier to
occur of (i) thirty (30) days after the Closing Date and (ii) the
date of the termination of the trading restrictions on the
Preferred Securities, as determined by the Underwriters. The
Representatives agree to notify the Offerors of such termination
if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause
the Preferred Securities to be duly authorized for listing on the
NYSE, subject to notice of issuance, and to be registered under
the Exchange Act and to cause the Debentures to be duly
authorized for listing on the Luxembourg Stock Exchange; if the
Preferred Securities are exchanged for Debentures, the Company
will use its best efforts to have the Debentures listed on the
exchange or other organization on which the Preferred Securities
were then listed, and to have the Debentures registered under the
Exchange Act.
(j) If the Company elects to rely upon Rule 462(b)
under the Securities Act, the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with
Rule 462(b) under the Securities Act and pay the applicable fees
in accordance with Rule 111 under the Securities Act by the
earlier of (i) 10:00 p.m., New York City time, on the date of the
Prospectus, and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2) under the Securities Act.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the
Preferred Securities 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 Offerors and of any
certificates furnished by the Offerors 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(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Offerors and the
Representatives.
(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 Offerors or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President, the Treasurer
or an Assistant Treasurer of the Company and the General Partner,
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 Company or the Partnership, as the case
may be, threatened by the Commission.
(c) At the Closing Date, there shall have been issued
and there shall be in full force and effect an order of the
Commission under the 1935 Act, authorizing the formation of the
Partnership and [list other actions].
(d) At the Closing Date, the Underwriters shall have
received from Linklaters and Paines and Xxxx & Priest LLP,
opinions, dated the Closing Date, substantially in the forms set
forth in Exhibits A and B hereto, respectively, (i) with such
changes therein as may be agreed upon by the Offerors and the
Representatives, 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
Preferred Securities, with changes therein to reflect such
supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware
counsel for the Company and the Partnership, an opinion, dated
the Closing Date, substantially in the form set forth in Exhibit
C hereto (i) with such changes therein as may be agreed upon by
the Offerors and the Representatives, 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 Preferred Securities, with changes therein to
reflect such supplementation.
(f) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters, an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit D
hereto, with such changes therein as may be necessary to reflect
any supplementation of the Prospectus prior to the Closing Date.
(g) 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 and its consolidated subsidiaries 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 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 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, 1996 to a
specified date not more than five 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 and its consolidated
subsidiaries (if any) included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Securities 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 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 included in the Prospectus, except in all instances
for changes or decreases which the Prospectus discloses have
occurred or may occur or for changes or decreases as set forth in
such letter, identifying the same and specifying the amount
thereof; (iv) on the basis of a reading of the unaudited pro
forma financial statements included in the Prospectus, carrying
out certain specified procedures, inquiries of certain officials
of the Company and the company acquired who have responsibility
for financial and accounting matters and proving the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in such pro forma financial statements,
nothing came to their attention that caused them to believe that
such pro forma financial statements do not comply in form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that such pro forma adjustments
have not been properly applied to such historical amounts in the
compilation of such pro forma financial statements; [(v)
formulation for comfort levels on selected and summary financial
data tables to be discussed]; and (vi) stating that they have
compared specific dollar amounts, percentages of revenues and
earnings and other financial information pertaining to the
Company set forth in the Prospectus 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.
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
Treasurer of the Company, to the effect that (i) the
representations and warranties of the Company contained herein
are true and correct, and (ii) the Company has performed and
complied with all agreements and conditions in this Underwriting
Agreement to be performed or complied with by the Company at or
prior to the Closing Date.
(i) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
General Partner, to the effect that (i) the representations and
warranties of the Partnership contained herein are true and
correct, (ii) the Partnership has performed and complied with all
agreements and conditions in this Underwriting Agreement to be
performed or complied with by the Partnership at or prior to the
Closing Date and (iii) since the most recent date as of which
information is given in the Prospectus, as it may then be amended
or supplemented, there has not been any material adverse change
in the business, property or financial condition of the
Partnership and there has not been any material transaction
entered into by the Partnership, 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.
(j) At the Closing Date, the Underwriters shall have
received duly executed counterparts of the Partnership Agreement,
the Guarantee Agreement and the Indenture.
(k) 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 7(g) hereof.
(l) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company or the Partnership that, in the reasonable opinion of
the Representatives, materially impairs the investment quality of
the Preferred Securities.
(m) On or prior to the Closing Date, the Underwriters
shall have received from the Company evidence reasonably
satisfactory to Xxxxxxx, Xxxxx & Co. that Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Group have publicly
assigned to the Preferred Securities ratings of ___ and ___,
respectively, which ratings shall be in full force and effect on
the Closing Date.
(n) Between the date hereof and the Closing Date
neither [insert names of rating agencies] shall have lowered its
rating of any of the Company's outstanding debt securities in any
respect.
(o) On or prior to the Closing Date, (i) the Preferred
Securities shall have been duly listed, subject to notice of
issuance, on the NYSE, (ii) the Debentures shall have duly
authorized for listing on the Luxembourg Stock Exchange and (iii)
the Company's registration statement on Form 8-A relating to the
Preferred Securities shall have become effective under the
Exchange Act.
(p) All legal matters in connection with the issuance
and sale of the Preferred Securities shall be satisfactory in
form and substance to Counsel for the Underwriters.
(q) The Offerors 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 7 shall
not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Offerors. Any such termination shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Condition of Obligations of the Offerors. The
obligations of the Offerors hereunder shall be subject to the
following condition:
(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 have been issued
and there shall be in full force and effect an order of the
Commission under the 1935 Act authorizing the formation of the
Partnership and [list other actions].
In case the condition specified in this Section 8 shall not
have been fulfilled, this Underwriting Agreement may be
terminated by the Offerors upon notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Offerors shall, jointly and severally, indemnify,
defend and hold harmless each Underwriter and each person who
controls each Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages or liabilities, joint or
several, to which each Underwriter or any or all of them may
become subject under the Securities Act or any other statute or
common law and shall reimburse each Underwriter and any such
controlling person for any legal or other expenses (including to
the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon
an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as amended or
supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, 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 Offerors by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement to any thereof or
arising out of, or based upon, statements in or omissions from
the Form T-1s; 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
Preferred Securities to any person in respect of any Preliminary
Prospectus or the Prospectus as supplemented or amended,
furnished by any Underwriter to a person to whom any of the
Preferred Securities were sold (excluding in both cases, however,
any document then incorporated by reference therein), insofar as
such indemnity relates to any untrue or misleading statement or
omission made in any Preliminary 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
on a timely basis by the Offerors to the Underwriters pursuant to
Section 6(d) hereof, respectively, unless a copy of the
Prospectus (in the case of such a statement or omission made in
any Preliminary 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 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) The Company shall indemnify, defend and hold
harmless the Partnership against any and all losses, claims,
damages or liabilities that may become due from the Partnership
under Section 9(a) hereof.
(c) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or upon
any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus 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,
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 Offerors by any Underwriter
specifically for use in connection with the preparation of the
Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto.
(d) In case any action shall be brought, based upon
the Registration Statement, any Preliminary 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 and any person
controlling any indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(e) If the indemnification provided for under
subsections (a), (b), (c) or (d) in this Section 9 is unavailable
to any extent 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 Offerors and the
Underwriters from the offering of the Preferred Securities 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 Offerors 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 Offerors
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) to the Offerors 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 Offerors 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 Offerors or by any of the
Underwriters and such parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(e)
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 9(e), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Preferred
Securities 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 9(e) are several in
proportion to their respective underwriting obligations and not
joint. The obligations of the Company under this Section 9 shall
be in addition to any liability which the Company may otherwise
have.
SECTION 10. 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 9 of, and the
representations and warranties and other agreements of the
Offerors 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 Offerors or its directors or officers, or any of
the other persons referred to in Section 9 hereof and (ii)
acceptance of and payment for the Preferred Securities and (b)
the indemnity and contribution agreements contained in Section 9
shall remain operative and in full force and effect regardless of
any termination of this Underwriting Agreement.
SECTION 11. 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 Preferred Securities that it has agreed to purchase and
pay for hereunder, and the number of Preferred Securities that
such defaulting Underwriter agreed but failed or refused to
purchase is not more than one-tenth of the number of the
Preferred Securities, the other Underwriters shall be obligated
to purchase the Preferred Securities that such defaulting
Underwriter agreed but failed or refused to purchase; provided
that in no event shall the number of Preferred Securities that
any Underwriter has agreed to purchase pursuant to Schedule I
hereof be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such number of Preferred Securities
without written consent of such Underwriter. If any Underwriter
shall fail or refuse to purchase Preferred Securities and the
number of Preferred Securities with respect to which such default
occurs is more than one-tenth of the number of the Preferred
Securities, the Offerors shall have the right (a) to require the
non-defaulting Underwriters to purchase and pay for the
respective number of Preferred Securities that it had severally
agreed to purchase hereunder, and, in addition, the number of
Preferred Securities that the defaulting Underwriter shall have
so failed to purchase up to an amount thereof equal to one-ninth
of the respective number of Preferred Securities 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
number of Preferred Securities 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 Offerors
shall exercise its rights under clause (a) and/or (b) above, the
Offerors shall give written notice thereof to the Representatives
within 24 hours (excluding any Saturday, Sunday, or legal
holiday) of the time when the Offerors learn of the failure or
refusal of any Underwriter to purchase and pay for its respective
number of Preferred Securities, and thereupon the Closing Date
shall be postponed for such period, not exceeding three business
days, as the Offerors shall determine. In the event the Offerors
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 Offerors shall be deemed to have elected to terminate
this Underwriting Agreement. In the absence of such election by
the Offerors, this Underwriting Agreement will, unless otherwise
agreed by the Offerors 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 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 12. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from the Representatives to the Offerors if (a) after the
execution and delivery of this Underwriting Agreement and prior
to the Closing Date (i) trading of the Preferred Securities or
trading in securities generally shall have been suspended or
materially limited on the NYSE by The New York Stock Exchange,
Inc., the Commission or other governmental authority or on The
International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited (the "London Stock Exchange"), (ii)
minimum or maximum ranges for prices shall have been generally
established on the NYSE by The New York Stock Exchange, Inc., the
Commission or other governmental authority or on the London Stock
Exchange, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities, (iv) a change or development
involving a prospective change in United Kingdom taxation
materially adversely affecting the Company, the Debentures or the
Guarantee, or (v) there shall have occurred any outbreak or
escalation of hostilities or any calamity or crisis that, in the
judgment of the Representatives, is material and adverse and (b)
in the case of any of the events specified in clauses (a)(i)
through (v), such event singly or together with any other such
event makes it, in the reasonable judgment of the
Representatives, impracticable to market the Preferred
Securities. This Underwriting Agreement shall also be subject to
termination, upon notice by the Representatives as provided
above, if, in the judgment of the Representatives, the subject
matter of any amendment or supplement (prepared by the Offerors)
to the Prospectus (except for information relating solely to the
manner of public offering of the Preferred Securities or to the
activity of the Underwriters or to the terms of any series of
securities of the Offerors other than the Preferred Securities)
filed or issued after the effectiveness of this Underwriting
Agreement by the Offerors shall have materially impaired the
marketability of the Preferred Securities. Any termination
hereof, pursuant to this Section 12, shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Consent to Jurisdiction; Appointment of Agent
to Accept Service of Process.
(a) The Company agrees (i) that any legal action, suit or
proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection
with this Underwriting Agreement may be brought in any federal or
state court in the State of New York, County of New York, and
(ii) to file such consents with such authorities as may be
required to irrevocably evidence such agreement.
(b) The Company agrees to designate a designee, appointee
and agent in The City of New York satisfactory to the
Underwriters for the purpose of consenting and agreeing to the
service of any and all legal process, summons, notices and
documents in any such action, suit or proceeding against the
Company, by serving a copy thereof upon the relevant agent for
service of process referred to in this Section 13 (whether or not
the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such
service) with a copy to the Company as provided in Section 18.
The Company agrees that the failure of any such designee,
appointee and agent to give any notice of such service to it
shall not impair or affect in any way the validity of such
service. Nothing herein shall in any way be deemed to limit the
ability of the holders of the Preferred Securities or the
Debentures, the Underwriters and the other persons referred to in
Section 9 to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to
obtain jurisdiction over the Company, or bring actions, suits or
proceedings against it in such other jurisdictions, and in such
manner, as may be permitted by applicable law. The Company
irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have
to the laying of venue of any of the aforesaid actions, suits or
proceedings arising out of or in connection with this
Underwriting Agreement brought in the federal courts located in
The City of New York or the courts of the State of New York
located in The City of New York and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.
(c) The provisions of this Section 13 shall survive any
termination of this Underwriting Agreement, in whole or in part.
SECTION 14. Foreign Taxes. All payments by the Company to
the Underwriters hereunder shall be made free and clear of, and
without deduction or withholding for or on account of, any and
all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
the United Kingdom, any political subdivision thereof, or any
other jurisdiction in which the Company has a branch or an office
from which payment is made or deemed to be made, excluding
(i) any such tax imposed by reason of any Underwriter having some
connection with any such jurisdiction other than its
participation as an Underwriter hereunder, and (ii) any income or
franchise tax on the overall net income of any Underwriter
imposed by the United States or by the State of New York or any
political subdivision of the United States or of the State of New
York (all such non-excluded taxes, "Foreign Taxes"). If the
Company is prevented by operation of law or otherwise from
paying, causing to be paid or remitting that portion of amounts
payable hereunder represented by Foreign Taxes withheld or
deducted, then amounts payable under this Underwriting Agreement
shall, to the extent permitted by law, be increased to such
amount as is necessary to yield and remit to such Underwriter an
amount that, after deduction of all Foreign Taxes (including all
Foreign Taxes payable on such increased payments), equals the
amount that would have been payable if no Foreign Taxes applied.
SECTION 15. Waiver of Immunities. To the extent that the
Company or any of its properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise,
from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service or process, from
attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other
legal process or proceeding for the giving of any relief or for
the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out
of or in connection with the Company Securities, the Partnership
Agreement, the Guarantee Agreement, the Indenture or this
Underwriting Agreement, the Company hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such
immunity and consents to such relief and enforcement. Nothing in
this Section 15 shall be deemed to waive any defense (other than
any such immunity) available to the Company.
SECTION 16. Judgment Currency. Each of the parties hereto
agrees to indemnify each other party hereto, and its controlling
persons, officers and directors referred to in Section 9, against
any loss incurred by any such indemnified party as a result of
any judgment or order being given or made for any amount due
hereunder and such judgment or order being expressed and paid in
a currency (the "Judgment Currency") other than United States
dollars and as a result of any variation as between (i) the rate
of exchange at which the United States dollar amount is converted
into the Judgment Currency for the purpose of such judgment or
order, and (ii) the rate of exchange at which any such
indemnified party is able to purchase United States dollars on
the business day next succeeding the date of such judgment, with
the amount of the Judgment Currency actually received by any such
indemnified party. If, alternatively, any such indemnified party
receives a profit as a result of such currency conversion, it
will return any such profits to the party or parties from whom
indemnification could have been sought under this Section 16
(after taking into account any taxes or other costs arising in
connection with such conversion and repayment). The foregoing
indemnity shall constitute a separate and independent obligation
of the parties hereto, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid.
The term "rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or
conversion into, United States dollars.
SECTION 17. Miscellaneous. THE RIGHTS AND DUTIES OF THE
PARTIES TO THIS UNDERWRITING AGREEMENT SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, 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 Offerors and to the Representatives. 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 Offerors, the
Underwriters and, with respect to the provisions of Section 9,
each director, officer and other person referred to in Section 9,
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 Preferred Securities from the Underwriters.
SECTION 18. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to Xxxxxxx, Xxxxx & Co. at the address set forth at the
beginning of this Underwriting Agreement (to the attention of its
General Counsel) or, if to the Offerors, shall be mailed or
delivered to it at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx
00000, Attention: _________, or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000, Attention: Treasurer.
If the foregoing is in accordance with your
understanding, please sign and return to us counterparts of this
Underwriting Agreement, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Underwriting Agreement
and such acceptance hereof, shall constitute a binding agreement
among each of the Underwriters, the Company and the Partnership.
It is understood that your acceptance of this Underwriting
Agreement on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company
and the Partnership for examination upon request, but without
warranty on the part of the Representatives as to the authority
of the signers thereof.
Very truly yours,
Entergy London Investments plc
By:___________________________
Name:
Title:
Entergy London Capital, L.P.
By: Entergy London Investments plc,
as General Partner
By:___________________________
Name:
Title:
Accepted as of the date first above written:
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
As representatives of the other several
Underwriters named in Schedule I hereto
By:____________________________
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE I
Entergy London Capital, L.P.
[____]% Cumulative Quarterly Income Preferred Securities, Series A
Number of
Underwriter Preferred Securities
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
____________
Total 12,000,000
============
Exhibit A
[Letterhead of Linklaters & Paines]
Entergy Power Capital, L.P.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx
Xxxxxxxxx 00000
XXX
(the "Partnership")
November 1997
Entergy Power Investments plc
Templar House
00-00 Xxxx Xxxxxxx
Xxxxxx
XX0X 0XX
(the "Company")
Xxxxxxx, Xxxxx & Co.
[Other Representatives]
As Representatives of the several Underwriters named in Schedule
I to the Underwriting Agreement referred to below (the
"Underwriters")
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx
Xxx Xxxx
00000
XXX
Dear Sirs
Entergy London Capital, L.P.
% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation preference $25 per preferred security)
fully and unconditionally guaranteed by Entergy London
Investments plc
1 We have acted as English legal advisers to the
Partnership and the Company in connection with the issue
and sale by the Partnership to the several Underwriters
pursuant to the Underwriting Agreement, dated November
1997 (the "Underwriting Agreement") among the Company, the
Partnership and the representatives of the several
Underwriters of 12,000,000 % Cumulative Quarterly Income
Preferred Securities, Series A (liquidation preference $25
per preferred security) (the "Preferred Securities"),
guaranteed to the extent the Partnership has funds by the
Company. This opinion is delivered to you at the request
of the Company and the Partnership and is delivered
pursuant to section 7(d) of the Underwriting Agreement.
Expressions defined in the Underwriting Agreement have the
same meanings when used in this opinion except where
otherwise defined herein.
2 This opinion is limited to English law as currently
applied by the English Courts and is given on the basis
that it will be governed by and construed in accordance
with English law. We express no opinion on matters of
United States federal or state law or the laws of any
other jurisdiction.
3 For the purposes of this opinion we have examined and
relied upon copies of the documents listed and, where
appropriate, defined in the Schedule to this letter and
any other documents we have deemed appropriate. We have
assumed that:-
3.1(except in the case of the Company) all relevant
documents are within the capacity and powers of, and have
been validly authorised by, each party and (in the case of
each party) that those documents have been or (in the case
of the Preferred Securities and Debentures) will be
validly executed and delivered by the relevant party in
the same form as examined by us for the purpose of this
opinion;
3.2each of the Principal Agreements (as defined in
paragraph 4.1 below) and the Preferred Securities and
Debentures is valid and binding on and (without detracting
from the exception in assumption 3.1 above) enforceable
against each party under the law to which it is expressed
to be subject;
3.3words and phrases used in the Principal Agreements, the
Preferred Securities, the Debentures, the Registration
Statement and the Prospectus filed under the Securities
Act have the same meanings and effect as they would if
those documents were governed by English law and there is
no provision of any law (other than English law) which
would affect anything in this opinion;
3.4the Underwriters have complied and will comply with all
applicable provisions of the Financial Services Act 1986
with respect to anything done or to be done by them in
relation to the Preferred Securities or the Debentures in,
from or otherwise involving the United Kingdom (including
Section 3 (carrying on investment business) 56
(unsolicited calls) and 57 (investment advertisements));
3.5all copy documents examined by us for the purpose of
this opinion conform to the originals;
3.6no Principal Agreement nor any Preferred Security or
Debenture has been amended, supplemented or terminated;
3.7the copies of the Memorandum and Articles of
Association of each of the Company and the Significant
Subsidiaries (as defined below) examined by us for the
purpose of this opinion are complete and up-to-date;
3.8the Minutes of which copies have been examined by us
for the purpose of this opinion are a true record of the
proceedings described therein of duly convened,
constituted and quorate meetings of the Board of Directors
of the Company and that the resolutions set out in those
Minutes and in the Written Consents were duly passed and
remain in full force and effect without modification; and
3.9all documents submitted to us as originals are
authentic and all signatures are genuine and are those of
persons authorised by the relevant resolutions to execute
(or, as the case may be, witness the execution of) the
relevant document on behalf of the Company.
4 Based on and subject to the foregoing and subject to
the exceptions and qualifications mentioned below and to
any matters not disclosed to us, we are of the following
opinion:-
4.1The Company has been duly incorporated as a public
limited company under the laws of England and Wales and
has the necessary corporate power and authority under its
Memorandum and Articles of Association to conduct the
business that it is described in the Prospectus as
conducting, to own and operate properties owned and
operated by it in such business, to issue the Company
Securities, to enter into and perform its obligations
under the Underwriting Agreement, the Agreement of Limited
Partnership (as amended and restated) (the "Partnership
Agreement"), the Indenture, the Guarantee Agreement,
(together the "Principal Agreements") and the Company
Securities, to make the capital contribution to the
Partnership as General Partner.
4.2a search made on 1997 at the Companies Registration
Office in London revealed no order or resolution for the
winding up of the Company or of London Electricity plc,
London Electricity Services Limited, the London Power
Company Limited or London Electricity Enterprises Limited
(together, the "Significant Subsidiaries") and no notice
of appointment in respect of the Company or of its
Significant Subsidiaries of a liquidator, receiver,
administrative receiver or administrator. It should be
noted that such a search is not capable of revealing
whether or not a petition for winding up or administration
has been presented in a County Court or District Registry
or in the High Court of Justice, and that notice of a
winding up or administration order made or winding up
resolution passed or of the appointment of a receiver or
administrative receiver may not be filed at the Companies
Registration Office immediately;
4.3London Electricity plc and each of the other
Significant Subsidiaries has been duly incorporated as a
public limited company or private company limited by
shares under the laws of England and Wales, has the
necessary corporate power and authority under its
Memorandum and Articles of Association, as amended, to
conduct the business that it is described in the
Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
4.4The Partnership Agreement, the Indenture and the
Guarantee Agreement have been, insofar as English law is
concerned, duly authorised, executed and delivered by the
Company; the Underwriting Agreement has been, insofar as
English law is concerned, duly authorised, executed and
delivered by the Company for itself and as General Partner
under the Partnership Agreement.
4.5Insofar as English law is concerned, the Debentures
have been duly authorised and, when authenticated in the
manner provided for in the Indenture and delivered against
payment therefor as described in the Prospectus, will have
been duly executed, issued and delivered by the Company.
4.6No consent, approval, authorisation or order of any
governmental or regulatory agency in Great Britain is
required (i) for the formation of the Partnership or the
capital contribution of the Company to the Partnership, as
General Partner of the partnership; (ii) for the execution
and delivery by the Company of the Principal Agreements;
(iii) to permit the issue and sale of the Securities or
the performance by the Partnership of its obligations with
respect to the Preferred Securities or (iv) to permit the
performance by the Company of its obligations with respect
to the Principal Agreements.
4.7The Company has duly authorised the capital
contribution to the Partnership made by the Company as
General Partner and, insofar as English law is concerned,
has taken all necessary action to make such capital
contribution.
4.8Neither the issue, offering and sale by the Company of
the Company Securities in the manner contemplated by the
Underwriting Agreement and by the Prospectus nor the
execution and delivery by the Company of any of the
Principal Agreements nor the performance by the Company of
its obligations under any of the Principal Agreements will
conflict with or result in a breach or violation of (i)
the Memorandum of Association or Articles of Association
of the Company or the Significant Subsidiaries or (ii) any
law, rule or regulation of any governmental or other
regulatory authority in Great Britain applicable to the
Company or the Significant Subsidiaries or (iii) the
provision of any licence granted to London Electricity plc
under the Electricity Act 1984.
4.9Except as set forth in or contemplated by the
Prospectus, London Electricity plc possesses adequate
franchises, licences, permits and other rights to conduct
is businesses of distribution and supply of electricity as
set forth in the Prospectus the absence of which could
have a material adverse effect on the Company and the
Significant Subsidiaries.
4.10 The statements under the captions "Business - UK
Environmental Regulation," "Business - UK and EU
Competition Law" and "The Electric Utility Industry in
Great Britain" in the Prospectus, in each case insofar as
such statements purport to summarise orders, statutes,
laws, rules or regulations, or other legal matters,
involving English law or relating to the Great Britain
electric utility industry, constitute fair and accurate
summaries of such matters in all material respects.
4.11 The statements under the caption "Certain Income
Tax Considerations - UK Income Tax Consideration" in the
Prospectus constitute a fair and accurate summary of the
matters addressed therein in all material respects.
4.12 The English Courts will recognise and give effect
to the choice of the laws of the State of New York ("New
York law") as the law governing the Principal Agreements
(except the Partnership Agreement). The validity and
binding nature of the obligations contained in the
Principal Agreements (except the Partnership Agreement)
are governed by and construed in accordance with New York
law.
4.13 The English Courts will recognise and give effect
to the choice of law of the State of Delaware ("Delaware
law") as the law governing the Partnership Agreement. The
validity and binding nature of the obligations contained
in the Partnership Agreement are governed by and construed
in accordance with Delaware law.
4.14 On the assumption that the Underwriting Agreement,
the Indenture, the Guarantee Agreement and the Company
Securities create valid and binding obligations of the
parties under New York law and the Partnership Agreement
creates valid and binding obligations of the parties under
Delaware law, English law will not prevent any provisions
of the Underwriting Agreement, the Indenture, the
Guarantee Agreement, the Company Securities and the
Partnership Agreement from being valid and binding
obligations of the Company, subject to all limitations
resulting from bankruptcy, insolvency, liquidation,
receivership, administration, re-organisation of the
Company and similar laws of general application relating
to or affecting the rights of creditors applicable to the
Company.
4.15 A final and conclusive judgment against the
Company for a definite sum of money entered by a state or
federal court in the United States of America in any suit,
action or proceeding arising out of or in connection with
the Underwriting Agreement, the Indenture, the Guarantee
Agreement or the Partnership Agreement would normally be
enforced by the English Courts (although this is a matter
within such Courts' discretion), without re-examination or
re-litigation of the matters adjudicated upon, provided
that:-
(i) the judgment was not obtained by fraud;
(ii) the enforcement of the judgment would not be
contrary to English public policy or Section 5 of
the Protection of Trading Interests Act 1980;
(iii) the judgment was not given in a manner
contrary to the principles of natural justice (as
applied by the English Courts);
(iv) the judgment is not inconsistent with an
English judgment in respect of the same matter;
(v) the judgment is not for multiple damages or
amounts to a penalty under English law;
(vi) the proceedings before the state or federal
court in the United States of America were not of
a revenue nature (i.e. relating to taxation);
(vii) enforcement proceedings are instituted within
the limitation periods under the Limitation Act
1980;
(viii) the state or federal court in the United
States of America has jurisdiction over the
Company in accordance with the rules of English
law;
(ix) claims have not become subject to set-off or
counter claim; and
(x) the judgement of a court of the United States
or any part thereof did not predicate solely upon
the federal securities laws of the United States
as it is doubtful whether an English Court would
enforce such a judgement.
4.16 In relation to any action against the Company
under any of the Principal Agreements to which it is a
party or the Company Securities, an English Court might
assume jurisdiction on the basis that the Company (as
defendant) has its seat in England but an English Court
could decline jurisdiction or stay its proceedings in
relation to any dispute arising from the Principal
Agreements or the Company Securities:
(i) on the ground that proceedings involving the
same or a related issue are pending in a foreign
jurisdiction; or
(ii) on the ground of forum non conveniens, in
other words that a foreign forum is more
appropriate.
A plaintiff who is not resident in England or Wales may be
required by an English Court, on the application of the
defendant, to provide security for the defendant's costs.
4.17 Under English law and UK Inland Revenue practice
as applied and interpreted on the date hereof and on the
basis of the United Kingdom/United States Double Taxation
Treaty (the "Treaty") currently in force, no taxes,
levies, imposts or charges of the United Kingdom or any
political subdivision or taxing authority thereof or
therein would be required to be deducted or withheld (a)
from any payment to a beneficial owner of the Preferred
Securities who is a resident of the United States (who is
not also a resident of the United Kingdom and who does not
have a permanent establishment or a fixed base in the
United Kingdom to which the Preferred Securities are
connected) (a "United States Holder"), made (i) by the
Partnership pursuant to the Preferred Securities or (ii)
by the Company pursuant to the Guarantee Agreement or (b)
from any payment by the Company in respect of the
Debentures, provided that, in respect of a payment or in
respect of quarterly amounts due on the Debentures by the
Company, the Debentures are in bearer form and are quoted
on a recognised stock exchange and such payment is made by
a non-United Kingdom paying agent or by a United Kingdom
paying agent in circumstances where the Debentures are
held in a recognised clearing system or it is proved that
the person who is the beneficial owner of the Debentures
and entitled to the payment (or the person whose income
the payment is deemed to be for United Kingdom tax
purposes) is not resident in the United Kingdom; and
provided further that, in respect of a payment made by the
Company to a United States Holder pursuant to the
Guarantee Agreement as regards the portion of any such
payment which represents income in respect of the
Preferred Securities:
(A) that portion is exempt from taxation in
the United Kingdom under Article 22 of the
Treaty ("Other Income");
(B) the United States Holder is entitled to
and has claimed the benefit of the Treaty in
respect of such payment; and
(C) the Company has received from the UK
Inland Revenue prior to the payment being made
a direction pursuant to the Treaty allowing
payment to be made without deduction of United
Kingdom tax.
If (B) or (C) above is not satisfied so that tax is
withheld by the Company, a person entitled to exemption
under the Treaty may claim repayment of such tax from the
UK Inland Revenue.
5 Our reservations or qualifications are as follows:-
5.1We express no opinion as to whether the equitable
remedies of specific performance or injunctive relief
would be available in respect of any obligation of the
Company or the Partnership. Insofar as any obligation
under the Principal Agreements or the Company Securities
is to be performed in any jurisdiction other than England
and Wales, an English Court may have to have regard to the
law of that jurisdiction in relation to the manner of
performance and the steps to be taken in the event of
defective performance.
5.2The obligations of the Company under the Principal
Agreements and the Company Securities will be subject to
any law from time to time in force relating to liquidation
or administration or any other law or legal procedure
affecting generally the enforcement of creditors' rights.
5.3An English Court will not apply New York law or
Delaware law if:
(a) it is not pleaded and proved; or
(b) to do so would be contrary to the mandatory rules of
English law or manifestly incompatible with English
public policy.
5.4To the extent it relates to United Kingdom stamp
duties, any undertaking or indemnity given by the Company
or the Partnership may be void under section 117 of the
Stamp Act 1891.
5.5An English Court may refuse to give effect to any
provision of an agreement which amounts to an indemnity in
respect of the costs of unsuccessful litigation brought
before an English Court or where the Court has itself made
an order for costs.
5.6Where obligations are to be performed in a jurisdiction
outside England, they may not be enforceable in England to
the extent that performance would be illegal under the
laws of that other jurisdiction.
5.7Any certificate, determination, notification, opinion
or the like might be held by English court not be
conclusive if it could be shown to have an unreasonable or
arbitrary basis or in the event of manifest error despite
any provision in the relevant agreements to the contrary.
5.8This opinion is given as at the date set out above. We
express no opinion as to effect that any further event, or
any act of the Company or a Significant Subsidiary, may
have on the matters referred to herein.
6 This opinion is addressed to you solely for your
benefit in connection with the issue of the Preferred
Securities and the Debentures. It is not to be transmitted
to anyone else nor is it to be relied upon by anyone or
for any other purpose or quoted or referred to in any
public document or filed with anyone without our express
consent.
Yours faithfully
Linklaters & Paines
Schedule
1 A certified copy of the Memorandum and Articles of
Association of the Company
2 Copies of the Memorandum and Articles of Association of
each of the Significant Subsidiaries
3 Certified copies of the Written Consents of the Board
of Directors of the Company held on July 1997 and
November 1997
4 Searches in relation to the Company and each of the
Significant Subsidiaries obtained form the Companies
Registration Office on November 1997
5 Form S-1 Registration Statement dated November 1997
relating to the Preferred Securities (the "Registration
Statement" and "Prospectus")
6 Prospectus dated November 1997 relating to the %
Perpetual Junior Subordinated Debentures, Series A (the
"Debentures") as submitted to the Luxembourg Stock
Exchange ("Luxembourg Prospectus")
7 Underwriting Agreement relating to the Preferred
Securities dated November 1997 between the Company, the
Partnership and Xxxxxxx, Xxxxx & Co. and others (the
"Underwriters")
8 Indenture for Unsecured Subordinated Debt Securities
relating to the Preferred Securities dated November 1997
between the Company and the Bank of New York as Trustee
(the "Trustee") (the "Indenture")
9 Amended and Restated Limited Partnership Agreement of
Entergy London Capital, L.P. between the Company as
General Partner and Xxxxxxx X. Xxxxx, Xx. as the Initial
Limited Partner (the "Partnership Agreement")
10 Guarantee Agreement dated November 1997 between the
Company the Trustee (the "Guarantee Agreement")
11 Form of Perpetual Junior Subordinated Debenture
relating to the Debentures.
12 Officer's Certificate of the Company dated November
1997 establishing the terms of the Debentures (the
"Officer's Certificate")
13 Copy of the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A.,
relating to the validity of the Preferred Securities
14 Copy of the opinion of Xxxx & Priest LLP, relating to
the validity of the Perpetual Junior Subordinated
Debentures and the Guarantee
15 Copy of the opinion of Xxxx & Priest LLP, as to United
States tax matters
16 Copies of the licences granted to London Electricity plc
under the Electricity Act 1984
EXHIBIT B
[Letterhead of Xxxx & Priest LLP]
[_______ __], 1997
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, together with Linklaters & Paines, London, England,
and Xxxxxxxx, Xxxxxx & Finger, P.A., Wilmington, Delaware, have
acted as counsel for Entergy London Investments plc, a public
limited company incorporated under the laws of England and Wales
(the "Company"), and Entergy London Capital, L.P., a special
purpose limited partnership formed under the laws of the State of
Delaware (the "Partnership"), in connection with the issuance and
sale by the Partnership to the several Underwriters pursuant to
the Underwriting Agreement, effective [________ __], 1997 (the
"Underwriting Agreement"), among the Company, the Partnership and
you, as the representatives of the several Underwriters, of
12,000,000 [___]% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities"), guaranteed to the extent
the Partnership has funds by the Company. This opinion is
rendered to you at the request of the Company and the
Partnership. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Underwriting Agreement; (b) the
Indenture; (c) the Partnership Agreement; (d) the Guarantee
Agreement; (e) the Registration Statement and Prospectus filed
under the Securities Act; (f) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Company Securities and the execution and delivery by the
Company of the Indenture, the Underwriting Agreement, the
Partnership Agreement, and the Guarantee Agreement; and (g) the
proceedings before and the order entered by the Commission under
the 1935 Act relating to the formation of the Partnership and
[list other actions]. 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. 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 Debentures, except a specimen
thereof, and we have relied upon a certificate of the Debenture
Trustee as to the authentication and delivery thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) Assuming that the Indenture has been duly
authorized, executed and delivered by the Company insofar as the
laws of England and Wales are concerned, the Indenture (except as
to Section ___ thereof or any provisions thereof that purport to
waive any immunity with respect to the attachment of property of
the Company prior to the entry of judgment, upon which we do not
pass) is a legal, valid and binding instrument of the Company
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 by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law).
(2) Assuming that the Debentures have been duly
authorized, executed, issued and delivered by the Company insofar
as the laws of England and Wales are concerned, the Debentures
are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(3) Assuming that the Guarantee Agreement has been
duly authorized, executed and delivered by the Company insofar as
the laws of England and Wales are concerned, the Guarantee
Agreement (except as to Section ___ thereof or any provisions
thereof that purport to waive any immunity with respect to the
attachment of property of the Company prior to the entry of
judgment, upon which we do not pass) is a legal, valid and
binding instrument of the Company 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 by general
equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(4) Each of the Indenture and the Guarantee Agreement
is duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualifications have been instituted
or, to our knowledge, threatened by the Commission.
(5) The statements made in the Prospectus under the
captions "Risk Factors", "Entergy London Capital", "Description
of the Preferred Securities", "Description of the Guarantee",
"Description of the Perpetual Junior Subordinated Debentures" and
"Relationship Among the Preferred Securities, the Perpetual
Junior Subordinated Debentures and the Guarantee" 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.
(6) The statements made in the Prospectus under the
caption "Certain Income Tax Considerations - US Income Tax
Considerations" constitute a fair and accurate summary of the
matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
(7) Neither the Company nor the Partnership is, and
upon the issuance and sale of the Securities as contemplated by
the Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus, will be, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended.
(8) Except in each case as to the financial statements
and other financial data included therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and the
Prospectus, as of its date, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Form T-1s, upon which we do not
pass) the Trust Indenture 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; and 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.
(9) The Company, London Electricity plc and the other
Significant Subsidiaries are entitled to the exemption from the
1935 Act provided by Sections 33(a)(1) and (c)(1) thereof.
(10) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the formation of the
Partnership and [list other actions]; 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 of the United States or the State of New York
(other than orders of the Commission under the Securities Act,
the Exchange Act and the Trust Indenture Act, which have 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 form the Partnership, or to permit the
issuance and sale of the Securities or the performance by the
Partnership of its obligations with respect to the Preferred
Securities, or by the Company of its obligations with respect to
the Company Securities or under the Indenture, the Underwriting
Agreement, the Partnership Agreement or the Guarantee Agreement.
(11) The issuance and sale by the Company of the
Company Securities and the execution, delivery and performance by
the Company of the Indenture, the Underwriting Agreement, the
Partnership Agreement and the Guarantee Agreement (a) will not
violate any provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any assets of the Company,
the Significant Subsidiaries or [upstream entities that will be a
party to the Acquisition Debt Agreements after the corporate
reorganization] pursuant to the provisions of, the Acquisition
Debt Agreements or any other mortgage, indenture, contract,
agreement or other undertaking known to us (having made due
inquiry with respect thereto) to which either of the Company, the
Significant Subsidiaries or [upstream entities that will be a
party to the Acquisition Debt Agreements after the corporate
reorganization] is a party or which purports to be binding upon
either of the Company, the Significant Subsidiaries or [upstream
entities that will be a party to the Acquisition Debt Agreements
after the corporate reorganization] or upon any of their
respective assets and (b) will not violate any provision of any
Federal law of the United States or any law of the State of New
York applicable to the Company or the Significant Subsidiaries
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 of the United States
or the State of New York applicable to the Company or the
Significant Subsidiaries (except that various consents of, and
filings with governmental authorities of the State of New York
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 the State of New York).
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 the Partnership 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 paragraphs (5) and
(6) above. In connection with the preparation by the Company and
the Partnership of the Registration Statement and the Prospectus,
we have had discussions with certain officers and representatives
of the Company and its subsidiaries and the Partnership, with
other counsel for the Company and the Partnership, and with the
independent certified public accountants of the Company who
examined certain of the financial statements included in the
Registration Statement. Our examination of the Registration
Statement and the Prospectus and such 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, as
of its date and at the date hereof, contained or contains any
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 data included in
the Registration Statement or the Prospectus or as to the Form T-
1s.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other jurisdiction.
We have not examined into and are not passing upon matters
relating to the incorporation of the Company.
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 it 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,
XXXX & PRIEST LLP
EXHIBIT C
[Letterhead of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A.]
[________ __], 1997
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
As representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special Delaware counsel for Entergy
London Investments plc, a public limited company incorporated
under the laws of England and Wales (the "Company"), and Entergy
London Capital, L.P., a Delaware limited partnership (the
"Partnership"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Limited Partnership of the
Partnership, dated as of August 4, 1997 (the "Original
Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on August 4,
1997;
(b) The Agreement of Limited Partnership of the
Partnership, dated as of August 4, 1997 (the "Original
Partnership Agreement"), between the Company, as general partner
of the Partnership (the "General Partner"), and Xxxxxxx X. Xxxxx,
Xx., as initial limited partner of the Partnership (the "Initial
Limited Partner);
(c) The Certificate of Amendment to the Original
Certificate, dated as of [________ __,] 1997 (the "Certificate of
Amendment"), as filed in the office of the Secretary of State on
[_________ __,] 1997 (the Original Certificate as amended by the
Certificate of Amendment being hereinafter referred to as the
"Certificate");
(d) Amendment No. 1 to the Original Partnership
Agreement, dated as of [________ __,] 1997, between the General
Partner and the Initial Limited Partner;
(e) The Amended and Restated Limited Partnership
Agreement of the Partnership, dated as of [________ __,] 1997
(including Annex A, Annex B and Exhibit I to Annex B thereto)
(the "Partnership Agreement"), among the General Partner, the
Initial Limited Partner and such Persons who become limited
partners of the Partnership;
(f) The Underwriting Agreement, dated [_______ __],
1997 (the "Underwriting Agreement"), among the Partnership, the
Company and you, as Representatives of the several underwriters
named in Schedule I to the Underwriting Agreement;
(g) The Prospectus, dated [__________ __], 1997 (the
"Prospectus"), relating to 12,000,000 [__]% Cumulative Quarterly
Income Preferred Securities, Series A, of the Partnership
representing limited partner interests in the Partnership (each,
a "Preferred Security" and collectively, the "Preferred
Securities"); and
(h) A Certificate of Good Standing for the
Partnership, dated [________ __], 1997, obtained from the
Secretary of State.
Capitalized terms used herein and not otherwise defined
are used as defined in the Partnership Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (h) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (h) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our
own, but rather have relied solely upon the foregoing documents,
the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Partnership Agreement constitutes the entire agreement among
the parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Partnership, and that the Partnership Agreement and the
Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph (1)
below, the due creation, due organization or due formation, as
the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of each natural person who is a party to
the documents examined by us, (iv) except to the extent provided
in paragraph (2) below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent provided in paragraph (9) below, that
each of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Security is to be
issued by the Partnership (the "Preferred Security Holders") of a
Preferred Securities Certificate for the Preferred Security and
the payment for the Preferred Security acquired by it, in
accordance with the Partnership Agreement, and as described in
the Prospectus, (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the
Partnership Agreement, and as described in the Prospectus and
(viii) that the books and records of the Partnership set forth
all information required by the Partnership Agreement and the
Delaware Revised Uniform Limited Partnership Act (6 Del. C. 17-
101, et seq.) (the "Partnership Act"), including all information
with respect to all Persons to be admitted as partners of the
Partnership and their contributions to the Partnership. We have
not participated in the preparation of the Prospectus and assume
no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
(1) The Partnership has been duly formed and is
validly existing in good standing as a limited partnership under
the Partnership Act, and all filings required under the laws of
the State of Delaware with respect to the formation and valid
existence of the Partnership as a limited partnership have been
made.
(2) Under the Partnership Agreement and the
Partnership Act, the Partnership has the partnership power and
authority (i) to own property and conduct its business, all as
described in the Prospectus, (ii) to issue and sell the Preferred
Securities in accordance with the Partnership Agreement, and as
described in the Prospectus, and to perform its other obligations
under the Partnership Agreement, the Underwriting Agreement and
the Preferred Securities, (iii) to execute and deliver the
Underwriting Agreement, and (iv) to consummate the transactions
contemplated by the Underwriting Agreement.
(3) The Partnership Agreement constitutes a valid and
binding obligation of the Company and the General Partner, and is
enforceable against the General Partner, in accordance with its
terms.
(4) The Preferred Securities have been duly authorized
by the Partnership Agreement and are duly and validly issued and,
subject to the qualifications set forth in paragraph (5) below,
fully paid and nonassessable limited partner interests in the
Partnership.
(5) Assuming that the Preferred Security Holders, as
limited partners of the Partnership, do not participate in the
control of the business of the Partnership, the Preferred
Security Holders, as limited partners of the Partnership, will
have no liability in excess of their obligations to make payments
provided for in the Partnership Agreement and their share of the
Partnership's assets and undistributed profits (subject to the
obligation of a Preferred Security Holder to repay any funds
wrongfully distributed to it).
(6) There are no provisions in the Partnership
Agreement the inclusion of which, subject to the terms and
conditions therein, or, assuming that the Preferred Security
Holders, as limited partners of the Partnership, take no action
other than permitted by the Partnership Agreement, the exercise
of which, in accordance with the terms and conditions therein,
would cause the Preferred Security Holders, as limited partners
of the Partnership, to be deemed to be participating in the
control of the business of the Partnership.
(7) Under the Partnership Agreement and the
Partnership Act, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance and sale by the Partnership of the
Preferred Securities and the execution, delivery and performance
by the Partnership of the Underwriting Agreement and the
consummation of the transactions contemplated by the Underwriting
Agreement do not violate (a) the Certificate or the Partnership
Agreement or (b) any applicable Delaware law, rule or regulation.
(9) Under the Partnership Agreement and the
Partnership Act, (i) the issuance and sale by the Partnership of
the Preferred Securities and the execution and delivery by the
Partnership of the Underwriting Agreement, and the performance by
the Partnership of its obligations thereunder, have been duly
authorized by all necessary partnership action on the part of the
Partnership and (ii) assuming the due authorization, execution
and delivery of the Underwriting Agreement by the General Partner
under the Partnership Agreement on behalf of the Partnership and
of the Preferred Certificates for the Preferred Securities by the
General Partner on behalf of the Partnership, the Underwriting
Agreement and the Preferred Securities Certificates have been
duly executed and delivered by the Partnership.
The opinion expressed in paragraph (3) above is
subject, as to enforcement, to the effect upon the Partnership
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance
or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in
equity or at law) and (iii) the effect of applicable public
policy on the enforceability of provisions relating to
indemnification or contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to the reliance upon this opinion as
to matters of Delaware law by Xxxxxxxx, Xxxxxxx, Xxxxxx &
Xxxxxxx, as if it were addressed to it, in rendering its opinion
to you of even date herewith. Except as stated above, without
our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
XXXXXXXX, XXXXXX & XXXXXX, P.A.
EXHIBIT D
[Letterhead of Winthrop, Xxxxxxx, Xxxxxx & Xxxxxxx]
[_________ __], 1997
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
As representatives of the several
Underwriters named in Schedule I to
the Underwriting Agreement referred
to below (the "Underwriters")
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for the several Underwriters
of 12,000,000 [___]% Cumulative Quarterly Income Preferred
Securities, Series A (liquidation preference $25 per preferred
security) (the "Preferred Securities"), issued by Entergy London
Capital, L.P., a special purpose limited partnership formed under
the laws of the State of Delaware (the "Partnership"), pursuant
to the agreement among you, as the representatives of the several
Underwriters, Entergy London Investments plc, a public limited
company incorporated under the laws of England and Wales (the
"Company"), and the Partnership effective [__________], 1997 (the
"Underwriting Agreement").
We are members of the New York Bar 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 Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for the Company
and the Partnership, as to the matters covered in such opinion
relating to Delaware law. We have reviewed said opinion and
believe that it is satisfactory. We have also reviewed the
opinion of Xxxx & Priest LLP required by Section 7(d) of the
Underwriting Agreement, and we believe said opinion to be
satisfactory.
We have also reviewed such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. We have also
reviewed, and have relied as to matters of fact material to this
opinion upon, the documents delivered to you at the closing of
the transactions contemplated by the Underwriting Agreement, and
we have reviewed such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to render this opinion. As to such matters of
fact material to this opinion, we have relied upon
representations and certifications of the Company and the
Partnership in such documents and in the Underwriting Agreement,
and upon statements in the Registration Statement. In such
review, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the conformity to the
originals of the documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such
documents and all documents submitted to us as originals and the
correctness of all statements of fact contained in all such
original documents. We have not examined the certificates
representing the Preferred Securities or the Debentures except in
each case for specimens thereof, and we have relied upon a
certificate of the General Partner as to the execution and
delivery of the Preferred Securities and a certificate of the
Debenture Trustee as to the authentication and delivery of the
Debentures. 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 Preferred Securities have been duly authorized
by the Partnership Agreement and are duly and validly issued and
fully paid and nonassessable limited partner interests in the
partnership. Assuming that the holders of the Preferred
Securities, as limited partners of the Partnership, do not
participate in the control of the business of the Partnership,
such holders will have no liability in excess of their
obligations to make payments provided for in the Partnership
Agreement and their share of the Partnership's assets and
undistributed profits (subject to the obligation of a holder of
Preferred Securities to repay any funds wrongfully distributed to
it).
(2) Assuming that the Indenture has been duly
authorized, executed and delivered by the Company insofar as the
laws of England and Wales are concerned, the Indenture (except as
to Section ___ thereof or any provisions thereof that purport to
waive any immunity with respect to the attachment of property of
the Company prior to the entry of judgment, upon which we do not
pass) is a legal, valid and binding instrument of the Company
enforceable against the Company 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 enforceability is considered in a proceeding in equity or
at law), and by an implied covenant of good faith and fair
dealing.
(3) The statements made in the Prospectus under the
captions "Description of the Preferred Securities", "Description
of the Guarantee", "Description of the Perpetual Junior
Subordinated Debentures", "Relationship Among the Preferred
Securities, the Perpetual Junior Subordinated Debentures and the
Guarantee" and "Underwriting", 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) Assuming that the Debentures have been duly
authorized, executed, issued and delivered by the Company insofar
as the laws of England and Wales are concerned, the Debentures
are legal, valid and binding obligations of the Company
enforceable against the Company 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 enforceability is considered in a proceeding in equity or
at law), and by an implied covenant of good faith and fair
dealing, and the Debentures are entitled to the benefits provided
by the Indenture.
(5) Assuming that the Guarantee Agreement has been
duly authorized, executed and delivered by the Company insofar as
the laws of England and Wales are concerned, the Guarantee
Agreement (except as to Section ___ thereof or any provisions
thereof that purport to waive any immunity with respect to the
attachment of property of the Company prior to the entry of
judgment, upon which we do not pass) is a legal, valid and
binding instrument of the Company enforceable against the Company
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 enforceability is considered in
a proceeding in equity or at law), and by an implied covenant of
good faith and fair dealing.
(6) To the best of our knowledge, each of the
Indenture, and the Guarantee Agreement is duly qualified under
the Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or threatened by the
Commission.
(7) An appropriate order has been issued by the
Commission under the 1935 Act authorizing the formation of the
Partnership and [list other actions], 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 of the United States or the State of New York
(other than orders of the Commission under the Securities Act,
the Exchange Act and the Trust Indenture Act, which have 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
Securities.
(8) Except in each case as to the financial statements
and other financial data included therein, upon which we do not
pass, the Registration Statement, at the Effective Date, and the
Prospectus, as of its date, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the Form T-1s, upon which we do not
pass) the Trust Indenture 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; and, to the best of our knowledge, the Registration
Statement has become, and on the date hereof is, effective under
the Securities Act and 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 the Partnership and the 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)
hereof. In connection with the preparation by the Company and
the Partnership of the Registration Statement and the Prospectus,
we had discussions with certain officers, employees and
representatives of the Company and its subsidiaries, the
Partnership and Entergy Services, Inc., with counsel for the
Company and the Partnership, with your representatives and with
the independent certified public accountants of the Company who
examined certain of the financial statements included in the
Registration Statement. Our review of the Registration Statement
and the Prospectus, and such discussions, did not disclose to us
any information that 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, as
of its date and at the date hereof, contained or contains any
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 data included in
the Registration Statement or Prospectus or as to the Form T-1s.
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,
XXXXXXXX, XXXXXXX, XXXXXX & XXXXXXX
