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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): MAY 18, 2000
______________________________
CLECO CORPORATION
(Exact name of registrant as specified in its charter)
LOUISIANA 1-15759 72-1445282
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
2030 DONAHUE FERRY ROAD 71360-5226
PINEVILLE, LOUISIANA (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (318) 484-7400
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ITEM 5. OTHER EVENTS.
On May 18, 2000, Cleco Corporation (the "Company") entered into a Terms
Agreement (incorporating by reference the terms of an Underwriting Agreement
relating to senior unsecured debt securities) dated May 18, 2000 with BNY
Capital Markets, Inc., as underwriter, relating to the offering by the Company
of $100,000,000 aggregate principal amount of 8 3/4% Senior Notes due 2005 under
its Registration Statement on Form S-3 (Registration No. 333-33098).
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
1.1 Underwriting Agreement relating to senior debt securities
(included in Exhibit 1.2 below).
1.2 Terms Agreement dated May 18, 2000 between the Company and BNY
Capital Markets, Inc., as underwriter, incorporating by reference
the Underwriting Agreement.
4.1 Form of Supplemental Indenture No. 1, dated as of May 25, 2000,
providing for the issuance of the Company's 8 3/4% Senior Notes
due 2005.
4.2 Form of 8 3/4% Senior Notes due 2005 (included in Exhibit 4.1
above).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CLECO CORPORATION
Date: May 24, 2000 By:/s/ Thomas J. Howlin
----------------------------
Thomas J. Howlin
Senior Vice President--
Financial Services and
Chief Financial Officer
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EXHIBIT INDEX
1.1 Underwriting Agreement relating to senior debt securities
(included in Exhibit 1.2 below).
1.2 Terms Agreement dated May 18, 2000 between the Company and BNY
Capital Markets, Inc., as underwriter, incorporating by reference
the Underwriting Agreement.
4.1 Form of Supplemental Indenture No. 1, dated as of May 25, 2000,
providing for the issuance of the Company's 8 3/4% Senior Notes
due 2005.
4.2 Form of 8 3/4% Senior Notes due 2005 (included in Exhibit 4.1
above).
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EXHIBIT 1.2
CLECO CORPORATION
(THE "COMPANY")
8 3/4% SENIOR NOTES DUE 2005
TERMS AGREEMENT
May 18, 2000
To: BNY Capital Markets, Inc.
One Wall Street, 18th Floor
New York, New York 10286
Dear Sirs:
The undersigned agrees to sell to you, as sole Underwriter, for your
account, on and subject to the terms and conditions of the Underwriting
Agreement (the "Underwriting Agreement," a copy of which is attached hereto as
Appendix A) to be filed by the Company as an exhibit to its Current Report on
Form 8-K to be filed with the Securities and Exchange Commission on or prior to
May 25, 2000, the following securities ("Offered Securities") on the following
terms:
Title: 8 3/4% Senior Notes due 2005.
Principal Amount: $100,000,000.
Percentage of Principal Amount: The Offered Securities shall be issued
at 99.331% of their principal amount plus accrued interest, if any, from
May 25, 2000.
Purchase Price: 98.706% of the principal amount of the Offered
Securities plus accrued interest, if any, from May 25, 2000.
Interest: 8 3/4% per annum from May 25, 2000, payable semiannually in
arrears on June 1 and December 1 of each year, commencing December 1, 2000,
to holders of record on the preceding May 15 or November 15, as the case
may be.
Maturity Date: June 1, 2005.
Optional Redemption: The Company may redeem the Offered Securities, in
whole or in part, at any time, according to the price formula set forth in
the Prospectus
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Supplement dated May 18, 2000 (the "Prospectus Supplement") to the
Prospectus dated May 12, 2000 under the caption "Description of the Notes--
Optional Redemption."
Additional Covenants Relating to the Offered Securities: The Company
will be subject to the additional covenants relating to the Offered
Securities set forth in the Prospectus Supplement under the captions
"Description of the Notes--Change of Control,""--Certain Covenants Relating
to the Notes--Limitation on Liens on Voting Securities of Subsidiaries" and
"--Limitation on Issuance or Disposition of Voting Securities of Restricted
Subsidiaries".
Sinking Fund: None.
Listing: None.
Closing: 9:00 a.m., Central Standard Time, on May 25, 2000, at the
offices of Baker Botts L.L.P., 910 Louisiana, One Shell Plaza, Houston,
Texas 77002, in federal (same day) funds. The Offered Securities will be
made available for checking and packaging at the office of Baker Botts
L.L.P. at least 24 hours prior to the Closing Date.
Settlement and Trading: Book-Entry Only via DTC.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by the Underwriter for use in the
Prospectus consists of the following information in the Prospectus Supplement:
the third sentence in the fourth paragraph, and the penultimate paragraph under
the caption "Underwriting" in the Prospectus Supplement.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and you in accordance
with its terms.
Very truly yours,
CLECO CORPORATION
By: /s/ Thomas J. Howlin
----------------------------------
Thomas J. Howlin
Senior Vice President--Financial
Services and Chief Financial Officer
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
BNY CAPITAL MARKETS, INC.
By: /s/ Dan Klinger
------------------------------
Dan Klinger
Vice President
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APPENDIX A
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CLECO CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
1. Introduction. Cleco Corporation, a Louisiana corporation (the
"Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement referred
to in Section 2(a) hereof (the "Registered Securities"). The Registered
Securities will be issued under an indenture, dated as of May 1, 2000 (the
"Indenture"), between the Company and Bank One, N.A., as trustee (the
"Trustee"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with all such
terms for any particular series of the Registered Securities to be determined at
or prior to the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement as described in Section 3 hereof, for
resale in accordance with the terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives," as used in this Agreement (other than in Sections
2(b), 5(h) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-33098)
relating to the Registered Securities, including a prospectus, pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), and such
registration statement has been declared effective by the Commission. No
stop order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or, to
the best knowledge of the Company, threatened by the Commission. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3 and including any documents incorporated therein
by reference (but excluding any Form T-1), is referred to herein as the
"Registration Statement," and the prospectus and/or prospectus supplement
included in such Registration Statement, as supplemented as contemplated by
Section 3 to reflect the terms of the Offered Securities and the terms of
the offering thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act,
including all material incorporated by reference therein, is referred to
herein as the "Prospectus." If it is
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contemplated, at the time a Terms Agreement relating to the Offered
Securities is executed, that a registration statement will be filed
pursuant to Rule 462(b) under the Securities Act prior to the Closing Date
(hereinafter defined), the term "Registration Statement" as used herein
includes such registration statement. The terms "supplement" and
"amendment" as used in this Agreement include, without limitation, all
documents filed by the Company with the Commission subsequent to the date
of the Prospectus that are deemed to be incorporated by reference in the
Prospectus.
(b) On the effective date of the Registration Statement relating to
the Registered Securities (or the most recent post-effective amendment
thereto), such Registration Statement conformed in all material respects to
the requirements of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission (the "Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in Section
3, the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Securities Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such documents
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) Each document filed or to be filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference, or deemed to be incorporated by reference in the Prospectus
(including any document to be filed pursuant to the Exchange Act which will
constitute an amendment to the Prospectus) conformed or, when so filed,
will conform in all material respects to the requirements of the Exchange
Act and the applicable Rules and Regulations, and none of such documents
included or, when so filed, will include any untrue statement of a material
fact or omitted or, when so filed, will omit to state any material fact
required to be stated therein or necessary to make the statements therein
(and, in the case of a document filed after the effective date of the
Registration Statement and not treated as a post-effective amendment to the
Registration Statement for purposes of the liability provisions of the
Securities Act, in the light of the circumstances under which they were
made at the time of the filing of such document with the Commission) not
misleading.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Louisiana,
with power and authority to own its properties and conduct the business in
which it is engaged as described in the Prospectus.
(e) The Company has all necessary corporate power and authority to
execute and deliver the Terms Agreement (including the provisions of this
Agreement), the Offered Securities and any supplemental indenture or other
document required under the Indenture to establish the Offered Securities
thereunder (the "Supplemental Indenture")
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(collectively, the "Transaction Documents") and to perform its obligations
under the Indenture and the Transaction Documents; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(f) The Terms Agreement (including the provisions of this Agreement)
has been duly authorized, executed and delivered by the Company.
(g) The Indenture has been duly authorized by the Company and, when
executed and delivered by the Company and the Trustee, will constitute a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law); and the Indenture
has been duly qualified under the Trust Indenture Act.
(h) The Offered Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in
the Indenture and the Supplemental Indenture and paid for as provided in
the Terms Agreement (including the provisions of this Agreement), will be
duly and validly issued and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law); and the Offered Securities, when so executed, authenticated, issued
and delivered, will conform in all material respects to the description
thereof contained in the Prospectus.
(i) The execution and delivery by the Company of each of the
Transaction Documents and the issuance, authentication, sale and delivery
of the Offered Securities will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
"Significant Subsidiaries" as that term is defined in Regulation S-X
(hereinafter, "Significant Subsidiaries") pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
for borrowed money to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or by-laws
of the Company or any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries or any
of their properties or assets, except as would not have, in any case, a
material adverse effect on the condition (financial or otherwise), results
of operations or business of the
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Company and its Significant Subsidiaries taken as a whole (a "Material
Adverse Effect"); and no consent, approval, authorization or order of, or
filing or registration with, any such court or arbitrator or governmental
agency or body under any such statute, judgment, order, decree, rule or
regulation is required for the execution, delivery and performance by the
Company of each of the Transaction Documents, the issuance, authentication,
sale and delivery of the Offered Securities and compliance by the Company
with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for such consents,
approvals, authorizations, filings, registrations or qualifications (i)
which shall have been obtained or made prior to the Closing Date, and (ii)
except to the extent that the failure to obtain such consents, approvals,
authorizations, filings, registrations or qualifications would not have a
Material Adverse Effect.
(j) No statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency or body which prevents the issuance of
the Offered Securities or suspends the sale of the Offered Securities in
any jurisdiction and no injunction or restraining order by any federal or
state court of competent jurisdiction has been issued with respect to the
Company which would prevent or suspend the issuance or sale of the Offered
Securities or the use of the Prospectus in any jurisdiction.
(k) Based upon the timely filing by the Company with the Commission of
an exemption statement pursuant to Rule 2 under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"), the Company is exempt
from regulation as a public utility holding company under the 1935 Act,
except with respect to the acquisition of certain voting securities of
other domestic public utility companies and utility holding companies.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture
(as supplemented by the Supplemental Indenture), including, but not limited to,
interest rate, maturity, any redemption provisions and any sinking fund
requirements. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time thereafter as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of the
Offered Securities. The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement specifies "Book-Entry Only" settlement or otherwise
states that the provisions of this paragraph shall apply, the Company will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global securities in
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definitive form ("Global Securities") deposited with The Depository Trust
Company ("DTC") or its designated custodian and registered in the name of the
DTC or its nominee. Interests in any permanent global securities will be held
only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Offered Securities shall be made on
the Closing Date by the Underwriters in federal (same day) funds by wire
transfer to an account previously designated by the Company against delivery to
DTC or its designated custodian of the Global Securities representing all of the
Offered Securities.
4. Covenants of the Company. The Company agrees with the several
Underwriters that, in connection with each offering of Offered Securities:
(a) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives reasonably
request.
(b) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the second business
day following the execution and delivery of the Terms Agreement.
(c) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect any such amendment or supplement in a form
to which the Representatives shall reasonably object by notice to the
Company after a reasonable period to review; provided, however, that the
Company shall be permitted in any case to make all applicable filings under
the Exchange Act; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(d) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), for any filing fees or other expenses (including fees and
disbursements of counsel) in connection with qualifying the Registered
Securities for sale and determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives may designate
and the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities, for
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of Registered Securities and for expenses
incurred in preparing, printing and distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters. It
is understood, however, that, except as provided in this Section, and
Sections 6 and 8 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel and any advertising fees
connected with any offers they make.
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(e) If, at any time when, in the reasonable opinion of counsel for the
Representatives, a prospectus relating to the Offered Securities is
required to be delivered under the Securities Act in connection with sales
by any Underwriter or dealer, any event relating to or affecting the
Company shall occur as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading in the light of the circumstances under which they were made, or
if it is necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representatives of
such event and will promptly prepare and file with the Commission, at its
own expense, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(f) The Company will make generally available to its security holders
as soon as practicable an earnings statement of the Company covering a 12-
month period beginning after the Closing Date which will satisfy the
provisions of Section 11(a) of the Securities Act and the Rules and
Regulations (including Rule 158).
(g) The Company will cooperate in good faith with the Representatives
in qualifying the Offered Securities for sale under the applicable
securities or "blue sky" laws of such jurisdictions as the Representatives
may designate; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified.
(h) The Company will apply the net proceeds from the sale of the
Offered Securities as set forth in the Prospectus under the heading "Use of
Proceeds."
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities shall be
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations to be
performed hereunder and to the following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(b) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall be in effect and no proceedings for
that purpose shall be pending before or, to the knowledge of the Company or
any Underwriter, threatened by, the Commission.
(b) The Representatives, on behalf of the Underwriters, shall have
received an opinion, dated the Closing Date, of Phelps Dunbar, L.L.P.,
Louisiana counsel to the Company, to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Louisiana
and has all power and authority necessary to own its properties and to
conduct the business in which it is engaged as described in the
Prospectus.
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(ii) The Company has all necessary corporate power and authority
to execute and deliver each of the Transaction Documents and the
Indenture and to perform its obligations thereunder; all corporate
action required to be taken for the due authorization, execution and
delivery of each of the Transaction Documents and the consummation of
the transactions contemplated thereby have been duly and validly
taken; and the Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company.
(iv) The Offered Securities have been duly authorized by the
Company.
(v) The execution and delivery of each of the Transaction
Documents and the issuance and sale of the Offered Securities will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any Louisiana statute, rule, regulation
or order of any Louisiana governmental agency or body or any Louisiana
court having jurisdiction over the Company, any of its Significant
Subsidiaries or their respective properties, or the charter or by-laws
of the Company or any of its Significant Subsidiaries or, to such
counsel's knowledge, any material agreement or instrument identified
to such counsel by the Company that relates to the borrowing of funds
which the Company or any of its Significant Subsidiaries is bound or
to which any of the properties of the Company or any of its
Significant Subsidiaries is subject, except in each instance for such
breach, violation or default that would not have a Material Adverse
Effect.
(vi) No approval, authorization, consent or order of any public
board, body or agency of the State of Louisiana is legally required
for the issuance and sale of the Offered Securities, or the
performance by the Company of its agreements in this Agreement or in
the Indenture.
(c) The Representatives, on behalf of the Underwriters, shall have
received an opinion, dated the Closing Date, of Baker Botts L.L.P.,
special counsel to the Company, to the effect that:
(i) The Registration Statement has become effective under the
Securities Act and, to their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the Securities Act; the Registration Statement and
the Prospectus (other than (i) the financial statements and schedules,
including the notes thereto, the accountants' report thereon and the
related summary of accounting policies, contained or incorporated by
reference therein, (ii) the other financial and statistical
information contained or incorporated by reference therein and (iii)
the exhibits thereto, as to which no opinion need be rendered) appear
on their face to comply as to form in all
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material respects with the requirements of Form S-3, the related
published Rules and Regulations and the Trust Indenture Act.
(ii) They do not know of any contracts of a character required to
be described in the Registration Statement or Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement which are not described, filed or incorporated by reference
as required.
(iii) Based upon the timely filing by the Company with the
Commission of an exemption statement pursuant to Rule 2 under the 1935
Act which, to the best of such counsel's knowledge, is not the subject
of any notification provided for in Rule 6 under the 1935 Act, the
Company is exempt from regulation as a public utility holding company
under the 1935 Act, except with respect to the acquisition of certain
voting securities of other domestic public utility companies and
utility holding companies.
(iv) The Indenture has been duly qualified under the Trust
Indenture Act and, assuming the due execution and delivery thereof by
the Trustee, constitutes a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(v) The Offered Securities have been duly issued by the Company
and, assuming the due authentication thereof by the Trustee, the
Offered Securities, upon payment and delivery in accordance with the
Terms Agreement (including the provisions of this Agreement),
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(vi) The Offered Securities conform in all material respects to
the description thereof contained in the Prospectus.
(vii) To the best of such counsel's knowledge, there are no legal
proceedings pending or threatened against the Company of a character
which are required to be disclosed in the Registration Statement and
Prospectus which have not been disclosed therein or which question the
validity or enforceability of any of the Transaction Documents or the
Indenture or any action taken or to be taken pursuant thereto.
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In giving such opinion, Baker Botts L.L.P. may rely as to matters of Louisiana
law upon the opinion of Phelps Dunbar, L.L.P., referred to above.
In addition, Baker Botts L.L.P. shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company,
representatives of the Underwriters and counsel to the Underwriters at which the
contents of the Registration Statement and the Prospectus were discussed and,
although such counsel did not independently verify such information and is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, on the basis of the foregoing (relying as to
materiality to a large extent upon officers and other representatives of the
Company), no facts came to such counsel's attention that led such counsel to
believe that the Registration Statement (other than the financial statements and
schedules, the notes thereto and the auditor's reports thereon, the other
financial, numerical, statistical and accounting data included or incorporated
by reference therein, or omitted therefrom, and the exhibits thereto, as to
which such counsel need express no belief) as of its effective date contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (other than the financial statements, the
notes thereto and the auditor's report thereon and the other financial,
numerical, statistical and accounting data included or incorporated by reference
therein, or omitted therefrom, as to which such counsel need express no belief)
as of its issue date or as of the Closing Date included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Representatives, on behalf of the Underwriters, shall have
received from counsel to the Underwriters such opinion or opinions, dated
the Closing Date, as the Representatives may require. In giving such
opinion, such counsel may rely as to matters of Louisiana law upon the
opinion of Phelps Dunbar, L.L.P., referred to above.
(e) On or prior to the date of the Terms Agreement, the
Representatives, on behalf of the Underwriters, shall have received a
letter, dated the date of delivery thereof, of PricewaterhouseCoopers LLP
confirming that they are independent public accountants within the meaning
of the Securities Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the audited financial statements and any
schedules reported on 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
related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included in the Registration Statement;
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(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated total revenues, net
income and net income per share amounts or other amounts
constituting such "capsule" information and described in such
letter do not agree with the corresponding amounts set forth in
the unaudited consolidated financial statements or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of the such letter,
there was any change in the capital stock or any increase in
long-term debt of the Company and its consolidated subsidiaries
or, at the date of the latest available balance sheet read by
such accountants, there was any decrease in consolidated net
current assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year in net sales, income from operations
or net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases that the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
included in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
10
<PAGE>
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed to be
included in the Prospectus for purposes of this subsection.
(f) The Representatives, on behalf of the Underwriters, shall have
received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP to
the effect that such accountants reaffirm, as of the Closing Date and as
though made on the Closing Date, the statements made by the accountants in
the letter furnished pursuant to paragraph (e) of this Section 5, except
that the specified date referred to in such letter will be a date not more
than three days prior to the Closing Date for the purposes of this
Subsection.
(g) The Representatives, on behalf of the Underwriters, shall have
received a certificate, dated the Closing Date, of the President or any
Vice President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as one enterprise except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(h) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as one enterprise which, in the judgment of a majority in interest of
the Underwriters, including any Representatives, is so material and adverse
as to make it impracticable to proceed with completion of the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)(2)
under the Securities Act); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange or
any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared by
U.S. Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or
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international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect of
any such outbreak, escalation, declaration, calamity or emergency is so
material and adverse as to make it impracticable to proceed with completion
of the sale of and payment for the Offered Securities.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending or preparing to defend
against, or appearing as a third-party witness in connection with, any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus or preliminary
prospectus supplement the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus supplement relating to such Offered
Securities was required to be delivered by such Underwriter under the Securities
Act in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Prospectus (exclusive of
material incorporated by reference). Anything in this paragraph to the contrary
notwithstanding, the Company shall not be liable for any settlement of any claim
or action effected without its written consent.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any losses, claims, damages
or liabilities to which the Company may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or the omission or
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<PAGE>
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in the Terms Agreement, or (ii) the failure of such
Underwriter to send or give to a purchaser of the Offered Securities, at or
prior to the written confirmation of the sale of such Offered Securities to
such person, a copy of the Prospectus (exclusive of material incorporated
by reference) where such delivery was required under the Securities Act,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred. Anything in this
paragraph to the contrary notwithstanding, no Underwriter shall be liable
for any settlement of any claim or action effected without the written
consent of such Underwriter.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 6, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party of
the commencement thereof in writing; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above.
In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, which consent shall not be unreasonably
withheld, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. In no event
shall the indemnifying party be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then
13
<PAGE>
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the
offering of the Offered 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 Company on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by the Underwriters 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 in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has signed
the Registration Statement and to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, the Representatives may make
arrangements satisfactory to the Company for the
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<PAGE>
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the non-
defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under the Terms Agreement (including the provisions of
this Agreement), to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Offered Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Sections 6 and 8. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements will
not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement pursuant to Section 7
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
5(h), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
9. Notices. All communications hereunder shall be in writing and, if sent
to the Underwriters, shall be mailed, delivered or telecopied and confirmed to
the Representatives at the address furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, shall be mailed,
delivered or telecopied and confirmed to it at 2030 Donahue Ferry Road,
Pineville, Louisiana 71360-5226, Attention: Assistant Treasurer.
10. Parties. The Terms Agreement (including the provisions of this
Agreement) shall inure to the benefit of and be binding upon you and the Company
and such Underwriters as are identified in the Terms Agreement and their
respective successors and the partners, directors and officers referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action
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under such Terms Agreement (including the provisions of this Agreement) taken by
the Representatives will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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EXHIBIT 4.1
CLECO CORPORATION
AND
BANK ONE, N.A.,
as Trustee
____________________
SUPPLEMENTAL INDENTURE NO. 1
Dated as of May 25, 2000
TO
INDENTURE
Dated as of May 1, 2000
___________________
8 3/4% Senior Notes due 2005
$100,000,000
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of the 25th day of May, 2000,
between Cleco Corporation, a corporation duly organized and existing under the
laws of the State of Louisiana (the "Company"), and Bank One, N.A., a national
banking association duly organized and existing under the laws of the United
States of America, as trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of May 1, 2000 (the "Indenture"), providing for the issuance
from time to time of one or more series of its Securities.
Pursuant to the terms of the Indenture, the Company desires to provide for
the establishment of a new series of Securities to be designated as the 8 3/4%
Senior Notes due 2005 (the "8 3/4% Senior Notes"), the form and substance of
such 8 3/4% Senior Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this Supplemental Indenture No. 1.
Section 301 of the Indenture provides that various matters with respect to
any series of Securities issued under the Indenture may be established in an
indenture supplemental to the Indenture.
Subparagraph (7) of Section 901 of the Indenture provides that the Company
and the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as permitted by Sections
201 and 301 of the Indenture.
For and in consideration of the premises and the issuance of the series of
Securities provided for herein, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of such series,
as follows:
ARTICLE ONE
Relation to Indenture; Additional Definitions
SECTION 1.01. Relation to Indenture. This Supplemental Indenture No. 1
constitutes an integral part of the Indenture.
SECTION 1.02. Additional Definitions. For all purposes of this
Supplemental Indenture No. 1:
(1) Capitalized terms used herein shall have the meanings specified herein
or in the Indenture, as the case may be;
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(2) "8 3/4% Senior Notes" has the meaning set forth in the Recitals herein
and Section 2.01 hereof;
(3) "Change of Control" means the occurrence of any of the following:
(a) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation) of all or
substantially all the assets of the Company and the
Subsidiaries taken as a whole;
(b) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(c) the consummation of any transaction the result of which is
that any "person" or "group" (within the meaning of Section
13(d)(3) of the Exchange Act) becomes the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Exchange
Act) of more than 50% of the total voting power in the
aggregate of all classes of the Voting Securities of the
Company then outstanding; or
(d) the first day on which a majority of the members of the
board of directors of the Company or any successor Person
under Article Eight of the Indenture (the "Board") are not
Continuing Directors;
(4) "Change of Control Triggering Event" means the occurrence of a Change
of Control and a Ratings Event;
(5) "Change of Control Triggering Event Notice" has the meaning set forth
in Section 4.03 hereof;
(6) "Continuing Director" means, as of any date of determination, any
member of the Board who:
(a) was a member of the Board on May 25, 2000; or
(b) was nominated for election or elected to the Board with the
approval of a majority of the Continuing Directors who were
members of the Board at the time of such nomination or
election;
(7) "H.15 Statistical Release" has the meaning set forth in Section 3.02
hereof;
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(8) "Indebtedness" has the meaning set forth in Section 4.01 hereof;
(9) "Independent Investment Banker" has the meaning set forth in Section
3.01 hereof;
(10) "Interest Payment Date" has the meaning set forth in Section 2.04
hereof;
(11) "Investment Grade" means a rating of Baa3 or higher by Moody's (or its
equivalent under any successor rating categories of Moody's) and a
rating of BBB- or higher by S&P (or its equivalent under any successor
rating categories of S&P);
(12) "Maturity Date" has the meaning set forth in Section 2.03 hereof;
(13) "Moody's" means Moody's Investors Service, Inc., or any successor to
its securities ratings business;
(14) "Ratings Event" means, at any time within 90 days (which period is
extended so long as the rating of the 8 3/4% Senior Notes is under
publicly announced consideration for a possible downgrade by either
Moody's and/or S&P) after the date of public notice of a Change of
Control, or of the intention of the Company or any other Person to
effect a Change of Control, the rating of the 8 3/4% Senior Notes is
decreased below Investment Grade by each of Moody's and S&P;
(15) "Redemption Price" has the meaning set forth in Section 3.01 hereof;
(16) "Regular Record Date" has the meaning set forth in Section 2.04
hereof;
(17) "Remaining Term" has the meaning set forth in Section 3.02 hereof;
(18) "Repurchase Date" has the meaning set forth in Section 4.03 hereof;
(19) "Repurchase Notice" has the meaning set forth in Section 4.03 hereof;
(20) "Repurchase Period" means the period beginning on the date that is 30
days after the date on which the Company mails the Holders of the
8 3/4% Senior Notes the Change of Control Triggering Event Notice and
ending on the date which is 60 days after the date on which the
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Company mails the Holders of the 8 3/4% Senior Notes the Change of
Control Triggering Event Notice;
(21) "Repurchase Price" has the meaning set forth in Section 4.03 hereof;
(22) "Restricted Subsidiary" means any Subsidiary that is a consolidated
operating Subsidiary that accounts for 10% or more of the Company's
consolidated revenues or assets as of the date of the Company's most
recent audited financial statements and any other Subsidiary that the
Board of Directors designates as a Restricted Subsidiary.
(23) "S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor to its securities
ratings business;
(24) "Treasury Yield" has the meaning set forth in Section 3.02 hereof;
(25) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 1; and
(26) The terms "herein," "hereof," "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 1.
ARTICLE TWO
General Terms and Conditions of the 8 3/4% Senior Notes
SECTION 2.01. Title of the Securities. There shall be and is hereby
authorized a series of Securities designated as the "8 3/4% Senior Notes due
2005" (the "8 3/4% Senior Notes").
SECTION 2.02. Limitation on Aggregate Principal Amount. The aggregate
principal amount of the 8 3/4% Senior Notes shall be limited to $100,000,000;
provided, however, that the authorized aggregate principal amount of the 8 3/4%
Senior Notes may be increased above such amount by a Board Resolution to such
effect.
SECTION 2.03. Maturity Date. The 8 3/4% Senior Notes shall mature and the
principal amount thereof shall be due and payable, together with all accrued and
unpaid interest thereon, on June 1, 2005 (the "Maturity Date").
SECTION 2.04. Interest and Interest Rates. Each 8 3/4% Senior Note shall
bear interest at the rate of 8 3/4% per annum, accruing from May 25, 2000 and
interest shall be payable, semi-annually in arrears, on June 1 and December 1 of
each year (each such date,
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an "Interest Payment Date"), commencing on December 1, 2000, to the Person in
whose name such 8 3/4% Senior Note or any Predecessor Security is registered, at
the close of business on the immediately preceding May 15 and November 15,
respectively, whether or not such day is a Business Day (each such date, a
"Regular Record Date"). The amount of interest payable for any period shall be
computed on the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of a 360-
day year of twelve 30-day months and the days elapsed in any partial month. In
the event that any date on which interest is payable on a 8 3/4% Senior Note is
not a Business Day, then a payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that 8 3/4% Senior Note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, except that interest payable on the
Maturity Date shall be paid to the Holder to whom principal is paid. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and shall either (i) be paid
to the Person in whose name such 8 3/4% Senior Note (or one or more Predecessor
Securities) is registered at the close of business on the Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the 8 3/4% Senior Notes not less than 10
days prior to such Special Record Date, or (ii) be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the 8 3/4% Senior Notes may be listed or
traded, and upon such notice as may be required by such exchange or quotation
system, all as more fully provided in the Indenture.
SECTION 2.05. Place of Payment. The Place of Payment where the 8 3/4%
Senior Notes may be presented or surrendered for payment shall be the Corporate
Trust Office of the Trustee.
SECTION 2.06. Place of Registration or Exchange; Notice and Demands With
Respect to the 8 3/4% Senior Notes. The place where the Holders of the 8 3/4%
Senior Notes may present the 8 3/4% Senior Notes for registration of transfer or
exchange and may make notices and demands to or upon the Company with respect to
the 8 3/4% Senior Notes shall be the Corporate Trust Office of the Trustee.
SECTION 2.07. Percentage of Principal Amount. The 8 3/4% Senior Notes
shall be issued at 99.331% of their principal amount, plus accrued interest, if
any, from May 25, 2000.
SECTION 2.08. Global Securities. The 8 3/4% Senior Notes shall be
issuable in whole or in part in the form of one or more Global Securities. Such
Global Securities shall be deposited with, or on behalf of, The Depository Trust
Company, New York, New York,
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which shall act as Depositary with respect to the 8 3/4% Senior Notes. Such
Global Securities shall bear the legends set forth in the form of 8 3/4% Senior
Note contained herein.
SECTION 2.09. Form of Securities. The 8 3/4% Senior Notes shall be
substantially in the form contained in ARTICLE FIVE hereof.
SECTION 2.10. Securities Registrar. The Trustee shall initially serve as
Securities Registrar.
SECTION 2.11. Defeasance and Discharge; Covenant Defeasance. Article
Fourteen of the Indenture, including without limitation, Sections 1402 and 1403
thereof, shall apply to the 8 3/4% Senior Notes.
SECTION 2.12. Sinking Fund Obligations. The Company has no obligation to
redeem or purchase any 8 3/4% Senior Note pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation of future
sinking fund obligations) or upon the happening of a specified event or, except
as provided in Section 4.03 hereof, at the option of a Holder thereof.
ARTICLE THREE
Optional Redemption of the 8 3/4% Senior Notes
SECTION 3.01. Redemption Price. The Company shall have the right to
redeem the 8 3/4% Senior Notes, in whole or in part, at any time at a price
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, to (but excluding) the Redemption Date plus the Make-Whole Premium, if
any (the "Redemption Price"). The amount of the Make-Whole Premium with respect
to any 8 3/4% Senior Note (or portion thereof) to be redeemed will be equal to
the excess, if any, of: (i) the sum of the present values, calculated as of the
Redemption Date, of: (A) each interest payment that, but for such redemption,
would have been payable on the 8 3/4% Senior Note (or portion thereof) being
redeemed on each Interest Payment Date occurring after the Redemption Date
(excluding any accrued and unpaid interest for the period prior to the
Redemption Date); and (B) the principal amount that, but for such redemption,
would have been payable at the Maturity Date of the 8 3/4% Senior Note (or
portion thereof) being redeemed; over (ii) the principal amount of the 8 3/4%
Senior Note (or portion thereof) being redeemed. The present values of interest
and principal payments referred to in clause (i) above will be determined in
accordance with generally accepted principles of financial analysis. Such
present values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have been
payable, but for the redemption, to the Redemption Date at a discount rate equal
to the Treasury Yield (as defined below) plus 20 basis points.
The Make-Whole Premium shall be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company
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fails to make such appointment at least 45 Business Days prior to the Redemption
Date, or if the institution so appointed is unwilling or unable to make such
calculation, such calculation shall be made by BNY Capital Markets, Inc., or, if
such firm is unwilling or unable to make such calculation, by an independent
investment banking institution of national standing appointed by the Trustee (in
any such case, an "Independent Investment Banker").
SECTION 3.02. Make-Whole Premium. For purposes of determining the Make-
Whole Premium, "Treasury Yield" means a rate of interest per annum equal to the
weekly average yield to maturity of United States Treasury Notes that have a
constant maturity that corresponds to the remaining term to maturity of the
8 3/4% Senior Notes, calculated to the nearest 1/12th of a year (the "Remaining
Term"). The Treasury Yield shall be determined as of the third Business Day
immediately preceding the applicable Redemption Date. The weekly average yields
of United States Treasury Notes shall be determined by reference to the most
recent statistical release published by the Federal Reserve Bank of New York and
designated "H.15 (519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets forth a
weekly average yield for United States Treasury Notes having a constant maturity
that is the same as the Remaining Term, then the Treasury Yield shall be equal
to such weekly average yield. In all other cases, the Treasury Yield shall be
calculated by interpolation, on a straight-line basis, between the weekly
average yields on the Unites States Treasury Notes that have a constant maturity
closest to and greater than the Remaining Term and the United States Treasury
Notes that have a constant maturity closest to and less than the Remaining Term
(in each case as set forth in the H.15 Statistical Release). Any weekly average
yields so calculated by interpolation shall be rounded to the nearest 1/100th of
1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly
average yields for United States Treasury Notes are not available in the H.15
Statistical Release or otherwise, then the Treasury Yield shall be calculated by
interpolation of comparable rates selected by the Independent Investment Banker.
SECTION 3.03. Partial Redemption. If the 8 3/4% Senior Notes are only
partially redeemed pursuant to this ARTICLE THREE, the 8 3/4% Senior Notes shall
be redeemed pro rata or by lot or by any other method that the Trustee deems
fair and appropriate.
SECTION 3.04. Notice of Optional Redemption. If the Company elects to
exercise its right to redeem all or some of the 8 3/4% Senior Notes pursuant to
this ARTICLE THREE, the Company or the Trustee shall mail a notice of such
redemption to each Holder of a 8 3/4% Senior Note that is to be redeemed not
less than 30 days and not more than 60 days before the Redemption Date.
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ARTICLE FOUR
Covenants Applicable to the 8 3/4% Senior Notes
SECTION 4.01. Limitation on Liens on Voting Securities of Subsidiaries.
After the date hereof and so long as any of the 8 3/4% Senior Notes remain
Outstanding, the Company shall not, and shall not permit any Subsidiary to,
pledge or grant a security interest in, or permit any pledge, security interest
or other lien upon, any Voting Securities of any Subsidiary owned directly or
indirectly by the Company or any of its Subsidiaries to secure any Indebtedness,
without making effective provision to secure the 8 3/4% Senior Notes equally and
ratably with the other Indebtedness and any other Indebtedness similarly
entitled to be equally and ratably secured. This covenant shall not apply,
however, to:
(1) any pledge, security interest or other encumbrance upon any Voting
Securities of any Subsidiary existing as of May 25, 2000;
(2) the creation or existence of any pledge, security interest or other
encumbrance upon any Voting Securities of any Subsidiary
(a) created at the time of the Company's and/or a Subsidiary's
acquisition (including acquisition through merger or
consolidation) of such Voting Securities or within 24 months
after the Company's and/or a Subsidiary's acquisition of such
Voting Securities to secure all or a portion of the purchase
price for such Voting Securities,
(b) existing on such Voting Securities at the time of the Company's
and/or a Subsidiary's acquisition of such Voting Securities or
(c) created solely to secure obligations incurred to finance the
refurbishment, improvement, installation, development or
construction of any asset of the Company or any Subsidiary, which
obligations are incurred no later than 24 months after completion
of such refurbishment, improvement, installation, development or
construction, or
(3) any extension, renewal or refunding of any pledge, security interest
or other encumbrance described in clauses (1) and (2).
For purposes of this Section 4.01, "Indebtedness" means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by the Company or any Subsidiary for the repayment of
borrowed money. All indebtedness for borrowed money secured by a lien upon
property owned by the Company or any Subsidiary and upon which indebtedness for
borrowed money the Company or such Subsidiary customarily pays interest,
although the Company or such Subsidiary has not assumed or
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become liable for the payment of such indebtedness for borrowed money, shall for
purposes of this Section 4.01 be deemed to be Indebtedness of the Company or
such Subsidiary. All indebtedness for borrowed money of others guaranteed as to
payment of principal by the Company or any Subsidiary or in effect guaranteed by
the Company or such Subsidiary through a contingent agreement to purchase such
indebtedness for borrowed money shall be deemed for purposes of this Section
4.01 to be Indebtedness of the Company or such Subsidiary, but no other
contingent obligation of the Company or any Subsidiary in respect of
indebtedness for borrowed money or other obligations incurred by others shall
for purposes of this Section 4.01 be deemed to be Indebtedness of the Company or
such Subsidiary.
In case the Company or any Subsidiary shall propose to pledge, mortgage,
hypothecate or grant a security interest in any Voting Securities of any
Subsidiary to secure any Indebtedness, other than as permitted by clauses (1),
(2) and (3) in the second preceding paragraph, the Company will prior thereto
give written notice thereof to the Trustee, and the Company will prior to or
simultaneously with such pledge, mortgage, hypothecation or grant of security
interest, by supplemental indenture executed to the Trustee (or to the extent
legally necessary to another trustee or an additional or separate trustee), in a
form reasonably satisfactory to the Trustee, effectively secure (for so long as
such other Indebtedness shall be so secured) all the 8 3/4% Senior Notes equally
and ratably with such Indebtedness and with any other Indebtedness for borrowed
money similarly entitled to be equally and ratably secured.
SECTION 4.02. Limitation on Issuance or Disposition of Voting Securities
of Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, issue, sell, assign, transfer or otherwise dispose of,
directly or indirectly, any Voting Securities of any Restricted Subsidiary
(except to the Company or to one or more Restricted Subsidiaries or for the
purpose of qualifying directors); provided, however, that this covenant shall
not apply if:
(1) all or any part of such Voting Securities are issued, sold, assigned,
transferred or otherwise disposed of in a transaction for
consideration that is at least equal to the fair value of such Voting
Securities, as determined by the Board of Directors acting in good
faith, or
(2) the issuance, sale, assignment, transfer or other disposition is
required to comply with the order of a court or regulatory authority
of competent jurisdiction, other than an order issued at the Company's
or a Restricted Subsidiary's request.
SECTION 4.03. Put Right of Holders Upon a Change of Control Triggering
Event. In the event that there occurs a Change of Control Triggering Event,
each Holder of 8 3/4% Senior Notes shall have the right, at such Holder's
option, to require the Company to purchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's
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8 3/4% Senior Notes during the Repurchase Period, at a price equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, to (but
excluding) the Repurchase Date (the "Repurchase Price"). The Company shall mail
or cause to be mailed notice of the occurrence of a Change of Control Triggering
Event (the "Change of Control Triggering Event Notice") to the Trustee and to
each Holder of the 8 3/4% Senior Notes within 30 days following any Change of
Control Triggering Event. The Change of Control Triggering Event Notice shall
state: (i) that a Change of Control Triggering Event has occurred; (ii) that all
8 3/4% Senior Notes tendered during the Repurchase Period will be accepted for
repurchase; (iii) the date by which the repurchase right must be exercised,
which date is the last day of the Repurchase Period; (iv) the Repurchase Price;
and (v) the procedure which a Holder of 8 3/4% Senior Notes must follow to
exercise the repurchase right. To exercise this repurchase right, a Holder of
8 3/4% Senior Notes must deliver during the Repurchase Period a written notice
to the Company (or an agent designated by the Company for such purpose in the
Change of Control Triggering Event Notice) of the Holder's exercise of such
right (the "Repurchase Notice"), together with the 8 3/4% Senior Note with
respect to which the repurchase right is being exercised, duly endorsed for
transfer to the Company. The Repurchase Notice shall be irrevocable, must be
received by the Company prior to the last day of the Repurchase Period and shall
state the name in which the 8 3/4% Senior Note is registered on the Securities
Register and the principal amount of the 8 3/4% Senior Note to be repurchased.
The Company shall repurchase the 8 3/4% Senior Note with respect to which this
repurchase right is being exercised on the fifth Business Day after receipt of
the Repurchase Notice (the "Repurchase Date"). 8 3/4% Senior Notes repurchased
pursuant to this Section 4.03 shall be delivered to the Trustee and canceled as
provided in Section 310 of the Indenture.
ARTICLE FIVE
Form of 8 3/4% Senior Notes
SECTION 5.01. The 8 3/4% Senior Notes and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF SECURITY)
IF THE NOTE IS TO BE A GLOBAL SECURITY, INSERT - THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
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[For so long as this Global Security is deposited with or on behalf of The
Depository Trust Company, it shall bear the following legend.] Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) to Cleco Corporation or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of The Depository Trust Company) ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
CLECO CORPORATION
8 3/4% SENIOR NOTES DUE 2005
No. _______ $_________
CUSIP No. ____________
Cleco Corporation, a corporation duly organized and existing under the laws
of the State of Louisiana (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________, or registered
assigns, the principal sum of _________ Dollars on June 1, 2005, and to pay
interest thereon from May 25, 2000 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on June 1
and December 1 in each year, commencing December 1, 2000, at the rate of 8 3/4%
per annum until the principal hereof is paid or made available for payment. The
amount of interest payable for any period shall be computed on the basis of
twelve 30-day months and a 360-day year. The amount of interest payable for any
partial period shall be computed on the basis of a 360-day year of twelve 30-day
months and the days elapsed in any partial month. In the event that any date
on which interest is payable on this Security is not a Business Day, then a
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean, when used with
respect to any Place of Payment, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment
are authorized or obligated by law or executive order to close. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 15
or November 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date; provided, however, that interest payable
on the Maturity Date shall be paid to the Holder to whom principal is paid. Any
such interest not punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record
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Date, and shall either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange or automated quotation system on which the Securities of
this series may be listed or traded, and upon such notice as may be required by
such exchange or quotation system, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose, which shall initially be the Corporate Trust Office of the Trustee, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated in writing by the Person
entitled thereto as specified in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_____________________
CLECO CORPORATION
(SEAL) By:
----------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
--------------------
BANK ONE, N.A.,
As Trustee
By:
------------------------------------
Authorized Signatory
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(FORM OF REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued or to be issued in one or more
series under an Indenture, dated as of May 1, 2000 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and Bank One, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $100,000,000;
provided, however, that the authorized aggregate principal amount of the
Securities may be increased above such amount by a Board Resolution to such
effect.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail at any time, as a whole or in part, at the election of
the Company, at a price equal to 100% of the principal amount of this Security
plus accrued and unpaid interest, if any, to (but excluding) the Redemption Date
plus the Make-Whole Premium, if any; all as more fully provided in the
Indenture. The amount of the Make-Whole Premium with respect to this Security
(or portion hereof being redeemed) will be equal to the excess, if any, of: (i)
the sum of the present values, calculated as of the Redemption Date, of: (A)
each interest payment that, but for such redemption, would have been payable on
this Security (or portion hereof being redeemed) on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued and unpaid interest
for the period prior to the Redemption Date); and (B) the principal amount of
this Security (or portion hereof being redeemed) that, but for such redemption,
would have been payable at the Maturity Date; over (ii) the principal amount of
this Security (or portion hereof being redeemed).
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like terms for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
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If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 33% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonably indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in
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<PAGE>
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees. No service charge
shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. The Indenture, as supplemented by this Supplemental
Indenture No. 1, is in all respects adopted, ratified and confirmed. This
Supplemental Indenture No. 1 shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 6.02. The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this Supplemental Indenture No. 1.
SECTION 6.03. This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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SECTION 6.04. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH 8 3/4% SENIOR
NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed as of the day and year first above written.
CLECO CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
BANK ONE, N.A.,
As Trustee
By:
--------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
19
