<PAGE> 1
- ------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
<TABLE>
<S> <C>
For the quarterly period ended September 30, 1998 Commission file number 1-5663
</TABLE>
Or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
CLECO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
LOUISIANA 72-0244480
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2030 DONAHUE FERRY ROAD, PINEVILLE, LOUISIANA 71360-5226
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (318) 484-7400
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No
---- ----
As of November 1, 1998, there were 22,486,530 shares outstanding of the
Registrant's Common Stock, par value $2.00 per share.
- ------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
PART I. FINANCIAL INFORMATION ----
<S> <C> <C>
Item 1. Financial Statements.......................................................................... 1
Report of Independent Accountants........................................................... 2
Consolidated Statements of Income........................................................... 3
Consolidated Balance Sheets................................................................. 5
Consolidated Statements of Cash Flows....................................................... 7
Notes to Consolidated Financial Statements.................................................. 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
Disclosure Regarding Forward-Looking Statements............................................. 11
Results of Operations....................................................................... 11
Financial Condition......................................................................... 14
Item 3. Quantitative and Qualitative Disclosures About
Market Risk................................................................................... 16
PART II. OTHER INFORMATION
Item 5. Other Information............................................................................. 17
Item 6. Exhibits and Reports on Form 8-K.............................................................. 21
SIGNATURE................................................................................................. 22
</TABLE>
<PAGE> 3
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The consolidated financial statements for Cleco Corporation (the Company)
included herein are unaudited but reflect, in management's opinion, all
adjustments, consisting only of normal recurring adjustments, that are necessary
for a fair presentation of the Company's financial position and the results of
its operations for the interim periods presented. Because of the seasonal nature
of the Company's business, the results of operations for the nine months ended
September 30, 1998 are not necessarily indicative of the results that may be
expected for the full fiscal year. The financial statements included herein
should be read in conjunction with the financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1997 (1997 Form 10-K).
The consolidated financial statements included herein have been subjected to a
limited review by PricewaterhouseCoopers LLP, independent accountants for the
Company, whose report is included herein.
1
<PAGE> 4
REPORT OF INDEPENDENT ACCOUNTANTS
October 26, 1998
To the Board of Directors and Shareholders
of Cleco Corporation:
We have made a review of the consolidated balance sheet of Cleco Corporation as
of September 30, 1998, and the related consolidated statements of income and
cash flows for the three-month and nine-month periods ended September 30, 1998
and 1997, in accordance with standards established by the American Institute of
Certified Public Accountants. These financial statements are the responsibility
of the Company's management.
A review of interim financial information consists principally of obtaining an
understanding of the system for the preparation of interim financial
information, applying analytical review procedures to financial data, and making
inquiries of persons responsible for financial and accounting matters. It is
substantially less in scope than an audit in accordance with generally accepted
auditing standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole. Accordingly, we do not
express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the consolidated financial statements referred to above for them to
be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet as of December 31, 1997, and the
related consolidated statements of income, cash flows and changes in common
shareholders' equity for the year then ended (not presented herein); and in our
report dated January 27, 1998, we expressed an unqualified opinion on those
financial statements. In our opinion, the information set forth in the
accompanying balance sheet as of December 31, 1997, is fairly stated in all
material respects in relation to the balance sheet from which it has been
derived.
PricewaterhouseCoopers LLP
2
<PAGE> 5
CLECO CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE MONTHS ENDED SEPTEMBER 30
(UNAUDITED)
<TABLE>
<CAPTION>
(In thousands, except share and
per share amounts)
1998 1997
------------ ------------
<S> <C> <C>
OPERATING REVENUES $ 172,553 $ 138,099
------------ ------------
OPERATING EXPENSES
Fuel used for electric generation 44,034 44,607
Power purchased 17,154 10,171
Other operation 35,999 16,242
Maintenance 11,524 5,308
Depreciation 11,872 11,609
Taxes other than income taxes 9,488 9,161
Federal and state income taxes 13,580 12,377
------------ ------------
143,651 109,475
------------ ------------
OPERATING INCOME 28,902 28,624
Allowance for other funds used during
construction 272 171
Other income and expenses, net 722 1,033
------------ ------------
INCOME BEFORE INTEREST CHARGES 29,896 29,828
Interest charges, including amortization of
debt expense, premium and discount 7,243 7,124
Allowance for borrowed funds used during
construction (201) (184)
------------ ------------
NET INCOME 22,854 22,888
Preferred dividend requirements, net 534 528
------------ ------------
NET INCOME APPLICABLE TO COMMON STOCK $ 22,320 $ 22,360
============ ============
WEIGHTED AVERAGE COMMON SHARES
Basic 22,484,269 22,460,931
Diluted 23,866,497 23,864,477
EARNINGS PER SHARE
Basic $ 0.99 $ 1.00
Diluted $ 0.95 $ 0.95
CASH DIVIDENDS PAID PER SHARE $ 0.405 $ 0.395
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
3
<PAGE> 6
CLECO CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30
(UNAUDITED)
<TABLE>
<CAPTION>
(In thousands, except share and
per share amounts)
1998 1997
------------ ------------
<S> <C> <C>
OPERATING REVENUES $ 398,060 $ 341,091
------------ ------------
OPERATING EXPENSES
Fuel used for electric generation 106,135 99,574
Power purchased 41,597 31,777
Other operation 75,696 46,357
Restructuring charge 0 1,891
Maintenance 24,323 17,072
Depreciation 35,766 34,321
Taxes other than income taxes 26,877 26,152
Federal and state income taxes 23,988 22,066
------------ ------------
334,382 279,210
------------ ------------
OPERATING INCOME 63,678 61,881
Allowance for other funds used during
construction 854 297
Other income and expenses, net 1,200 1,061
------------ ------------
INCOME BEFORE INTEREST CHARGES 65,732 63,239
Interest charges, including amortization of
debt expense, premium and discount 21,491 21,650
Allowance for borrowed funds used during
construction (630) (94)
------------ ------------
NET INCOME 44,871 41,683
Preferred dividend requirements, net 1,591 1,577
------------ ------------
NET INCOME APPLICABLE TO COMMON STOCK $ 43,280 $ 40,106
============ ============
WEIGHTED AVERAGE COMMON SHARES
Basic 22,478,499 22,459,128
Diluted 23,866,259 23,864,181
EARNINGS PER SHARE
Basic $ 1.93 $ 1.79
Diluted $ 1.87 $ 1.73
CASH DIVIDENDS PAID PER SHARE $ 1.215 $ 1.175
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
4
<PAGE> 7
CLECO CORPORATION
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
(In thousands)
SEPTEMBER 30, 1998 DECEMBER 31, 1997
------------------ -----------------
ASSETS
<S> <C> <C>
Utility plant
Property, plant and equipment $ 1,534,953 $ 1,506,949
Accumulated depreciation (543,785) (518,664)
------------- -------------
991,168 988,285
Construction work-in-progress 49,210 37,277
------------- -------------
Total utility plant, net 1,040,378 1,025,562
------------- -------------
Investments and other assets 23,980 3,479
------------- -------------
Current assets
Cash and cash equivalents 21,198 18,015
Accounts receivable, net 65,865 48,353
Notes Receivable 930 0
Unbilled revenues 6,099 11,090
Fuel inventory, at average cost 7,500 8,648
Materials and supplies, inventory, at average cost 12,887 14,413
Accumulated deferred fuel 3,653 0
Prepayments and other current assets 1,330 1,894
------------- -------------
Total current assets 119,462 102,413
------------- -------------
Prepayments 8,169 8,331
Regulatory assets - deferred taxes 111,414 115,285
Other deferred charges 45,056 29,418
Accumulated deferred federal and
state income taxes 77,099 76,556
------------- -------------
TOTAL ASSETS $ 1,425,558 $ 1,361,044
============= =============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
(Continued on next page)
5
<PAGE> 8
CLECO CORPORATION
CONSOLIDATED BALANCE SHEETS (CONTINUED)
(UNAUDITED)
<TABLE>
<CAPTION>
(In thousands,
except share amounts)
SEPTEMBER 30, 1998 DECEMBER 31, 1997
------------------ -----------------
CAPITALIZATION AND LIABILITIES
<S> <C> <C>
Common shareholders' equity
Common stock, $2 par value, authorized
50,000,000 shares, issued 22,485,280
and 22,462,912 shares at September 30, 1998
and December 31, 1997, respectively $ 45,536 $ 45,525
Premium on capital stock 113,856 113,763
Retained earnings 271,741 255,549
Treasury stock, at cost, 282,474 and
299,842 shares at September 30, 1998
and December 31, 1997, respectively (5,745) (6,086)
----------- -----------
425,388 408,751
----------- -----------
Preferred stock, cumulative, $100 par value
Not subject to mandatory redemption 29,718 30,102
Deferred compensation related to
preferred stock held by ESOP (17,183) (18,766)
----------- -----------
12,535 11,336
Subject to mandatory redemption 5,990 6,120
----------- -----------
18,525 17,456
----------- -----------
Long-term debt, net 369,107 365,897
----------- -----------
Total capitalization 813,020 792,104
----------- -----------
Current liabilities
Short-term debt 52,750 34,219
Long-term debt due within one year 10,000 15,000
Accounts payable 47,623 53,365
Customer deposits 20,213 20,172
Taxes accrued 49,006 12,211
Interest accrued 1,536 7,681
Accumulated deferred fuel 0 2,965
Other current liabilities 13,494 5,102
----------- -----------
Total current liabilities 194,622 150,715
----------- -----------
Deferred credits
Accumulated deferred federal and state
income taxes 293,197 296,123
Accumulated deferred investment tax
credits 28,231 29,574
Regulatory liabilities - deferred taxes 63,515 62,468
Other deferred credits 32,973 30,060
----------- -----------
Total deferred credits 417,916 418,225
----------- -----------
TOTAL CAPITALIZATION AND LIABILITIES $ 1,425,558 $ 1,361,044
=========== ===========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
6
<PAGE> 9
CLECO CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30
(UNAUDITED)
<TABLE>
<CAPTION>
(In thousands)
1998 1997
-------- --------
CASH FLOWS FROM OPERATING ACTIVITIES
<S> <C> <C>
Net income $ 44,871 $ 41,683
Adjustments to reconcile net income
to net cash provided by operating activities
Depreciation and amortization 37,236 35,673
Allowance for funds used during construction (1,483) 391
Amortization of investment tax credits (1,343) (1,343)
Deferred income taxes 2,119 (2,083)
Deferred fuel costs (6,618) (4,045)
Restructuring charges 0 1,632
(Gain) loss on disposition of utility plant, net 0 (236)
Changes in assets and liabilities
Accounts receivable, net (18,442) (9,487)
Unbilled revenues 4,991 (1,734)
Fuel inventory, materials and supplies 2,674 2,431
Accounts payable (9,742) (16,034)
Customer deposits 41 422
Other deferred accounts (16,221) (1,824)
Taxes accrued 36,795 33,655
Interest accrued (6,145) (5,917)
Other, net 3,655 9,189
-------- --------
Net cash provided by operating activities 72,388 82,373
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Additions to utility plant (45,478) (59,640)
Allowance for funds used during construction 1,483 (391)
Sale of utility plant 395 371
Purchase of investments (340) (222)
Sale of investments 0 1
-------- --------
Net cash used in investing activities (43,940) (59,881)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock 94 22
Issuance of long-term debt 0 40,000
Retirement of long-term debt (10,000) (15,000)
Increase (decrease) in short-term debt, net 13,531 (17,817)
Issuance of preferred stock 0 178
Redemption of preferred stock (212) (237)
Dividends paid on common and preferred stock, net (28,678) (27,973)
-------- --------
Net cash used in financing activities (25,265) (20,827)
-------- --------
NET INCREASE IN CASH AND CASH EQUIVALENTS 3,183 1,665
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 18,015 20,307
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 21,198 $ 21,972
======== ========
Supplementary cash flow information
Interest paid (net of amount capitalized) $ 27,201 $ 27,709
======== ========
Income taxes paid $ 2,640 $ 9,876
======== ========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
7
<PAGE> 10
CLECO CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A. RECLASSIFICATION
Certain prior-period amounts have been reclassified to conform with the
presentation shown in the current year's financial statements. These
reclassifications had no effect on net income applicable to common stock or
common shareholders' equity.
NOTE B. LEGAL PROCEEDING: FUEL SUPPLY - LIGNITE
The Company and Southwestern Electric Power Company (SWEPCO), each a 50% owner
of Dolet Hills Power Station Unit 1 (Dolet Hills Unit 1), jointly own lignite
reserves in the Dolet Hills area of northwestern Louisiana. In 1982 the Company
and SWEPCO entered into a Lignite Mining Agreement (LMA) with the Dolet Hills
Mining Venture (DHMV), a partnership for the mining and delivery of lignite from
a portion of these reserves (Dolet Hills Mine). The LMA expires in 2011. The
price of lignite delivered pursuant to the LMA is a base price per ton, subject
to escalation based on certain inflation indices, plus specified "pass-through"
costs.
Currently, the Company is receiving annually a minimum delivery of 1,187,500
tons under the LMA. Since the late 1980s, additional spot lignite deliveries
have been obtained through competitive bidding from DHMV and another lignite
supplier. In 1996 the Company and SWEPCO received deliveries which approximated
28% of the annual lignite consumption at Dolet Hills Unit 1 from the other
lignite supplier.
On April 15, 1997, the Company and SWEPCO filed suit against DHMV and its
partners in the United States District Court for the Western District of
Louisiana (Federal Court Suit) seeking to enforce various obligations of DHMV to
the Company and SWEPCO under the LMA, including provisions relating to the
quality of the delivered lignite, pricing, and mine reclamation practices. On
June 15, 1997, DHMV filed an answer denying the allegations in the Company's
suit and filed a counterclaim asserting various contract-related claims against
the Company and SWEPCO. The Company and SWEPCO have denied the allegations in
the counterclaims on the grounds the counterclaims have no merit.
The counterclaims filed by DHMV in the Federal Court Suit resulted in the
Company and SWEPCO filing a separate lawsuit against the parent companies of
DHMV, namely Jones Capital Corporation and Philipp Holzmann USA, Inc., on August
13, 1997, in the First Judicial District Court for Caddo Parish, Louisiana
(State Court Suit). The State Court Suit seeks to enforce a separate 1995
agreement by Jones Capital Corporation and Philipp Holzmann USA, Inc. related to
the LMA. Jones Capital Corporation and Philipp Holzmann USA, Inc. have asked the
State Court to stay that proceeding until the Federal Court Suit is resolved.
A scheduling conference was held on November 5, 1998. At that scheduling
conference, the Court set this Federal Court suit for trial beginning November
15, 1999. A discovery cut-off date of August 15, 1999 has also been established.
8
<PAGE> 11
The Company and SWEPCO will aggressively prosecute the claims against DHMV and
defend against the counterclaims which DHMV has asserted. The Company and SWEPCO
continue to pay DHMV for lignite delivered pursuant to the LMA. Normal
day-to-day operations continue at the Dolet Hills Mine and Dolet Hills Unit 1.
Although the ultimate outcome of this litigation cannot be predicted at this
time, based on information currently available to the Company, management does
not believe that the counterclaims asserted by the DHMV in the Federal Court
Suit will have a significant adverse effect on the Company's financial position
or results of operations.
NOTE C. SABINE TEXICAN PIPELINE ACQUISITION
On August 1, 1998, Cleco Energy, LLC, (Energy) a joint venture between Cleco
Corporation and Covenant Energy Corporation of Houston, purchased Sabine Texican
Pipeline Company of Lufkin, Texas (Sabine). Sabine is an energy company engaged
in the exploration, production, gathering, marketing and transportation of
natural gas. Energy paid the sole shareholder of Sabine $2.5 million and gave
him a 13% equity interest in Energy. Sabine has approximately $24.6 million in
assets, $4 million in current liabilities, and $13.2 million in long term debt.
The acquisition added 415 miles of gathering and transmission pipeline in Texas
and Louisiana, serving wholesale customers as well as oil and gas producing
properties in West Texas. After the acquisition of Sabine, the Company has a
44% equity interest and a 51% voting interest in Energy.
NOTE D. ACCRUAL FOR ESTIMATED CUSTOMER CREDITS
The Company's results for the nine months ended September 30, 1998 reflect an
accrual for estimated customer credits which may be required under terms of an
earnings review settlement reached with the Louisiana Public Service Commission
(LPSC) in 1996. The accrual for estimated customer credits was reduced from the
second quarter estimate of $4 million to the current estimate of $1.9 million.
The settlement set the Company's rates for a period of five years, and also
provided for annual base rate tariff reductions of $3 million in 1997 and an
additional $2 million in 1998. As part of the settlement, the Company is allowed
to retain all regulated earnings up to a 12.25% return on equity, and to share
equally with customers as credits on their bills all regulated earnings between
12.25% and 13% return on equity. All regulated earnings above a 13% return on
equity are credited to customers. The amount of credits due customers, if any,
is determined by the LPSC annually based on the Company's 12-month-ending
results as of September 30 of each year. The amount of the credit has not yet
been determined by the LPSC. The settlement directs such credits to be made on
customers' bills the following summer.
NOTE E. REPOWERING PROJECT
In July, 1998, the Company's Board of Directors approved the construction of a
750-megawatt repowering project (Project) to be implemented at the site of its
existing Coughlin Power Station (CPS). The Project will use three new natural
gas-fueled combustion turbine generators to repower two existing units at CPS.
9
<PAGE> 12
It is anticipated that the Project's generation capacity and energy will be
available to the Company at competitive market rates and that any excess will be
available for sale to the regional wholesale market.
One of the Company's subsidiaries will own and operate the Project. The total
cost of the Project is expected to be $240 million and is scheduled to be
completed by June 1, 2000. As of September 30, 1998, the Company has spent
approximately $13.9 million on the project, which is being funded through the
Company's commercial paper program. Permanent financing for the Project has not
yet been determined and is expected to be finalized during the first quarter of
1999. Implementation of the Project is subject to approval by the LPSC and the
Federal Energy Regulatory Commission (FERC). Approval from both agencies is
expected to be obtained by Spring 1999.
NOTE F. NEW REVOLVING CREDIT FACILITY
The Company's $25 million revolving credit facility was terminated on August 28,
1998 and a new $80 million, 364 day revolving credit facility was entered into
on August 28, 1998. The new $80 million facility provides for borrowings at
interest rates established by competitive bid and will expire on August 27,
1999. Compensating balances are not required for the facility. The commitment
fees are based upon the Company's lowest secured debt ratings and are currently
0.085%.
10
<PAGE> 13
CLECO CORPORATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion and analysis should be read in combination with
Management's Discussion and Analysis of Financial Condition and Results of
Operations in Item 7 of the 1997 Form 10-K, the financial statements and notes
contained in Item 8 of the 1997 Form 10-K and the interim financial statements
and notes thereto contained elsewhere in this Report.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Report includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements, other than
statements of historical fact included in this Report, are forward-looking
statements. Although the Company believes that the expectations reflected in
such forward-looking statements are reasonable, such forward-looking statements
are based on numerous assumptions (some of which may prove to be incorrect) and
are subject to risks and uncertainties which could cause the actual results to
differ materially from the Company's expectations. Such risks and uncertainties
include, without limitation, the effects of competition in the power industry,
legislative and regulatory changes affecting electric utilities, fluctuations in
the weather and changes in general economic and business conditions, as well as
other factors discussed in this and the Company's other filings with the
Securities and Exchange Commission (Cautionary Statements). All subsequent
written and oral forward-looking statements attributable to the Company or
persons acting on its behalf are expressly qualified in their entirety by the
Cautionary Statements.
RESULTS OF OPERATIONS
For the Three Months Ended September 30, 1998
Net income applicable to common stock totaled $22.3 million or $0.99 per
share for the third quarter of 1998, as compared to $22.4 million or $1.00 per
share for the corresponding period in 1997. The following principal factors
contributed to these results:
Operating revenues for the quarter increased $34.5 million or 24.9% compared to
the same period in 1997, due to an increase in kilowatt-hour sales to all
classes of customers resulting from warmer weather during the third quarter of
1998 and increased activity by the Company's power marketing operations during
the third quarter of 1998 as compared to the third quarter of 1997. Fuel cost
recovery revenues for the third quarter of 1998 were $9.3 million more than the
third quarter of 1997. This increase is primarily attributable to higher
kilowatt-hour sales. The Company's power marketing operations were able to
capitalize on above-average demand of other utilities and increase operating
revenues by $16 million during the third quarter of 1998 compared to the
corresponding period in 1997. For a descripton of the Company's power marketing
operations, see Part II, Item 5, "Other Information -- Power Marketing
Operations."
11
<PAGE> 14
Changes in fuel cost have historically had no effect on net income, as fuel
costs are generally recovered through a fuel cost adjustment clause that enables
the Company to pass on to customers substantially all changes in the cost of
generating fuel and purchased power. These adjustments are audited monthly and
are regulated by the LPSC (representing about 99% of the total fuel cost
adjustment) while the remaining portion, regulated by the FERC, is audited
periodically for several years at a time. Until approval is received, the
adjustments are subject to refund.
Base revenues increased $9.2 million during the third quarter of 1998 compared
to the corresponding period in 1997. The increase in base revenues is primarily
the result of an increase in kilowatt-hour sales to residential customers, the
most weather-sensitive customer class. The increased consumption by residential
customers was due primarily to a warmer-than-normal summer in 1998. Weather
during the third quarter of 1998 was 3.6% warmer than the third quarter of 1997
and 15% warmer than normal as measured by degree day calculations. Kilowatt-hour
sales to regular customers improved 8.6% over the third quarter of 1997. Base
revenues were also affected by the Company's acquisition of residential and
commercial customers from the former Teche Electric Cooperative (Teche). The
Company acquired Teche on September 30, 1997. The acquisition resulted in the
addition of 7,700 mostly residential customers to the Company's service area.
Also contributing to the third quarter base revenue increase was a $2.1 million
decrease over the prior quarter in the accrual for estimated customer credits.
See Note D of the Notes to Consolidated Financial Statements. The amount of
credits due customers, if any, will be determined by the LPSC annually based on
12-month-ending results as of September 30 of each year. See "Management's
Discussion and Analysis of Results of Operations and Financial Condition --
Financial Condition - Retail Rates" in Item 7 of the 1997 Form 10-K for a
discussion of the LPSC settlement.
Operating expenses increased $34 million, or 31%, during the third quarter of
1998 compared to the same period in 1997. The rise in operating expenses is the
result of increases in the cost of fuel used for electric generation, other
operation expenses, maintenance expenses, and an increase in purchases
associated with power marketing operations. The increase in the cost of fuel
used for electric generation and purchased power is primarily attributable to
fluctuations in the Company's generation mix, higher fuel costs, availability of
economy power and deferral of expenses for recovery from customers through fuel
adjustment clauses in subsequent months, as compared to the same period in 1997.
The Company purchases electric energy from other electric power generators when
the price of the energy purchased is less than the cost to the Company of
generating such energy from its own facilities and when the Company's generating
units are unable to provide electricity to satisfy the Company's load.
Twenty-two percent of the Company's energy requirements during the third quarter
of 1998 were met with purchased power, compared to 16% for the corresponding
period in 1997. This increase was primarily due to unanticipated mechanical
problems at the Company's generation facilities during heavy load periods. Other
operation expenses increased $19.8 million, or 121.6%, compared to the same
period in 1997, primarily due to purchases of power by the Company's power
marketing operations, costs associated with employee incentive compensation and
preliminary investigation of holding company formation. See "Part II, Item 5,
Other Information - Holding Company Formation" for a discussion of the potential
formation of a holding company. Maintenance expense increased $6.2 million, or
117.1% compared to the same period in 1997, primarily due to the incurrence of
expenses originally planned for earlier in the year, additional
12
<PAGE> 15
spending for maintenance on the Company's generation facilities to increase
unit reliability, some unanticipated generating unit repairs caused by
mechanical problems during heavy load periods and an increase in right-of-way
reclearing expenses relating to transmission and distribution.
For the Nine Months Ended September 30, 1998
Net income applicable to common stock totaled $43.3 million or $1.93 per
share for the first nine months of 1998, as compared to $40.1 million or $1.79
per share for the corresponding period in 1997. Net income applicable to common
stock for the 1997 period was affected by a restructuring charge of $1.9 million
($1.2 million net-of-tax) or $0.05 per share. The following principal factors
also contributed to these results:
Operating revenues for the first nine months of 1998 increased $57 million, or
16.7%, compared to the same period in 1997, due to an increase in fuel cost
recovery revenues, increased activity of the Company's power marketing
operations, and a rise in kilowatt-hour sales to residential customers. Fuel
cost recovery revenues for the first nine months of 1998 were $17.1 million
greater than the same period in 1997. Fuel costs for the first nine months of
1998 were higher than fuel costs in 1997, for the same reasons discussed above
under results for the three months ended September 30, 1998. Operating revenues
increased $25.4 million for the first nine months of 1998 compared to the
corresponding period in 1997 due to the increased activity of the Company's
power marketing operations. Numerous events in the Midwest, such as extremely
high temperatures, several power plants owned by other companies being out of
operation, damages to transmission lines of other companies, and the default of
a major power marketer, caused the wholesale price and demand of electricity in
the Midwest to increase dramatically for a very short time frame in June. Also,
efforts by the Company's power marketing operations as discussed under the
results for the three months ended September 30, 1998 contributed to the
increase in operating revenues.
Base revenues increased $14.5 million for the first nine months of 1998 compared
to the corresponding period in 1997. The increase in base revenues is primarily
attributable to a 12.8% increase in kilowatt-hour sales to residential
customers, the most weather-sensitive of the Company's customers, and 9.6%
increase in kilowatt-hour sales to commercial customers. The increase in
consumption by residential customers is primarily due to a warmer-than-normal
spring and summer of 1998, and the acquisition of 7,700 mostly residential
customers from Teche. Kilowatt-hour sales to regular customers increased 8.3%
from the same period in 1997. Offsetting the increase in base revenues was the
$2.0 million reduction of the Company's annual base rate tariff for electric
service effective January 1998 as part of the Company's October 1996 LPSC
earnings review settlement and a $1.9 million accrual for estimated customer
credits which may be required under terms of an earnings review settlement
reached with the LPSC in 1996. See Note D of the Notes To Consolidated
Financial Statements. The amount of credits due customers, if any, will be
determined by the LPSC annually based on the Company's 12-month-ending results
as of September 30 of each year.
Operating expenses increased $55.2 million, or 19.8%, for the first nine months
of 1998 compared to the corresponding period in 1997. The increase in operating
expenses is primarily due to an
13
<PAGE> 16
increase in fuel and purchased power costs, other operations expenses,
maintenance expenses, and depreciation. The changes in the cost of fuel used for
electric generation and purchased power are attributable primarily to
fluctuations in the Company's generation mix, fuel costs, availability of
economy power and deferral of expenses for recovery from customers through fuel
adjustment clauses in subsequent months, as compared to the same period in 1997.
The Company purchases power from other electric power generators when the cost
of energy purchased is less than the Company's cost to produce power at its own
facilities and when the Company's generating units are unable to provide
electricity to satisfy the Company's load. Twenty-three percent of the
Company's energy requirements during the first nine months of 1998 were met with
purchased power compared to 22% for the corresponding period in 1997. Other
operation expenses for the first nine months of 1998 increased $29.3 million, or
63.3%, compared to the same period in 1997, primarily due to the increase in
power purchased by the Company's power marketing operations for resale and an
increase in employee incentive plan expense. The increase in other operating
expenses is also partially attributable to the launching of a "branding equity"
campaign designed to increase the Company's presence throughout the community in
anticipation of the utility industry deregulation and to increase customer
loyalty. Other operating expenses also increased due to company-wide computer
upgrades, and to increased use of outside consulting services related to
investigating the possibility of the formation of a holding company. See Part
II, Item 5, "Other Information - Holding Company Formation" for a discussion of
the potential formation of a holding company. Maintenance expenses increased by
$7.3 million, or 42.5%, for the same reasons discussed above under the results
for the three months ended September 30, 1998. The increase in operating
expenses was partially offset by the absence of restructuring charges relating
to the reorganization of the Company's electric production section of its
generation services in 1997. Depreciation expense increased $1.4 million
compared to the same period in 1997, primarily due to the Teche assets being
placed into service in late 1997.
FINANCIAL CONDITION
Liquidity and Capital Resources
At September 30, 1998 and 1997, the Company had $52.8 million and $47.3
million, respectively, of short-term debt outstanding in the form of commercial
paper borrowing and bank loans.
During August 1998, the Company terminated its 364-day, $25 million revolving
credit facility. An existing $100 million revolving credit facility is scheduled
to terminate on June 15, 2000. A new 364-day, $80 million revolving credit
facility was entered into during August 1998. See Note F of the Notes to
Consolidated Financial Statements. These facilities provide support for the
issuance of commercial paper and working capital needs. Uncommitted lines of
credit with banks totaling $20 million are also available to support working
capital needs.
At September 30, 1998, CLE Resources, Inc., an unregulated consolidated
subsidiary of the Company, had $13.4 million of cash and temporary cash
investments in securities with original maturities of 90 days or less. Of these
funds, $10 million has been committed to provide credit support for working
capital and electricity or natural gas commodity positions for CLECO Energy
L.L.C. In addition, CLE Resources, Inc. has committed up to $25 million over a
five-year period
14
<PAGE> 17
for acquisitions, strategic alliances, and investments in
capital projects to be made by CLECO Energy L.L.C., subject to the satisfaction
of certain conditions.
The cost of the repowering project announced by the Company in July is estimated
to be $240 million. The structure of permanent financing for the project has not
yet been determined and is expected to be finalized by the first quarter of
1999. The Company will use its commercial paper program to fund the interim
needs of the project, which are expected to total approximately $80 million. As
of September 30, 1998, the Company has spent approximately $13.9 million on the
project.
Regulatory Matters - Retail Electric Competition
In December 1997, the LPSC Staff made a recommendation to the LPSC that
restructuring of the retail electric market in Louisiana could be in the public
interest if solutions for key issues were determined and properly implemented.
This recommendation was based upon preliminary findings in the LPSC electric
restructuring investigation in Docket U-21453. The LPSC accepted the
recommendation and directed the Staff to further investigate the issues. The
LPSC has scheduled a series of six separate hearings in Docket U-21453 during
1998 to receive input from interested parties, including the utilities that it
regulates, and to investigate alternative courses of action in electric
restructuring. Through the month of September 1998, hearings have been held on
electric restructuring issues including tax implications; unbundling of
functions and charges; market structure, market power, and utilization of
independent system operators; stranded costs and benefits and consumer
protection, public policy programs and environmental issues. During the
remainder of 1998, hearings are expected on the topics of future regulatory
structure and affiliate relationships. The Company has participated actively in
these proceedings by offering alternative plans to implement electric
restructuring and expects to continue to do so. The state of Louisiana has not
yet adopted any retail electric competition or restructuring legislation.
However, it is expected that the LPSC will make a report to the legislature in
1999 and that retail electric competition or restructuring legislation will be
considered during the 1999 regular session of the Louisiana legislature.
Regulatory Matters - Wholesale Electric Competition
Wholesale power markets, as regulated by the FERC, involve sales of power
between power suppliers, marketers, and brokers for subsequent resale to retail,
or end-use, customers. Competition in this market has increased since the FERC
mandated, through its Order number 888 and subsequent interpretations thereof,
open access to transmission facilities that are necessary to complete these
sales. The Company, under FERC rules, has an open access transmission tariff
through which it offers wholesale transmission service to other parties that is
comparable to the service that it provides itself from its facilities. The
Company, as a member of the Southwest Power Pool, may also provide certain
specialized transmission services under an open access tariff administered by
the pool, and as approved by the FERC. In recent years, the Company has
purchased a part of its power requirements from the wholesale market when it is
economical to do so or when the Company's generating units are unable to provide
electricity to satisfy the Company's load. In this role, the Company has also
been a purchaser of open access transmission service from other parties, and
expects to continue to do so in the immediate future.
15
<PAGE> 18
In September 1998, the FERC announced that it expects to issue a rulemaking
during 1999 for the purpose of furthering the orderly formation of regional
transmission organizations to operate the nations's transmission grid. It is
expected that the development of independent operators of the transmission grid
would lead to further increases in competition in wholesale power markets.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable.
16
<PAGE> 19
PART II
OTHER INFORMATION
ITEM 5. OTHER INFORMATION
FUEL SUPPLY - COAL
The majority of the coal for Rodemacher Power Station Unit 2 (Rodemacher
Unit 2) is purchased under a long-term contract with Jacobs Ranch Coal Company
(formerly owned by Kerr-McGee Coal Corporation) from a mine in Wyoming. The
Company has a 30% interest in the capacity of Rodemacher Unit 2. The coal is
transported under a long-term rail transportation contract with the Union
Pacific Railroad. Union Pacific is currently experiencing operating problems
resulting in reduced volumes delivered to Rodemacher Unit 2. The Company's coal
inventory is currently near the Company's desired minimum level. Based on the
anticipated delivery schedule of future coal shipments, management does not
expect that Rodemacher Unit 2 operations will need to be curtailed due to
insufficient fuel supply. The Company is closely monitoring this situation.
Other regional utilities are experiencing similar delivery problems.
REPOWERING PROJECT
For information regarding the 750 megawatt repowering project approved by the
Company's Board of Directors in July, 1998, see Note E of the Notes to
Consolidated Financial Statements. It is management's opinion that the
additional generating capacity is needed to meet the Company's own needs and the
needs of the region. The additional capacity will also further the Company's
strategy to become a regional power supplier outside of the traditional service
area and to take advantage of emerging deregulated markets.
YEAR 2000 READINESS DISCLOSURE
The year 2000 (Y2K) problem occurs because many systems, both hardware and
software, were designed to accept only two digits instead of four digits for the
year in a date field. Having two digits instead of four digits may cause the
system to read "00" as 1900 instead of 2000. This may cause calculations that
are date sensitive to arrive at an incorrect or impossible solution. This may
affect items such as delivery dates, interest calculations, pension benefit
calculations, and a variety of other date-dependent calculations.
The Company is aware of the issues surrounding the Y2K and the problems that may
occur and has put into action a plan to address these issues. The Company is
aware that the Y2K problem may affect both internal information technology (IT)
and non-IT systems. IT systems consist of software programs such as the
operating system, spreadsheets, accounting and other programs. Non-IT systems
refer to embedded technology such as micro controllers found in computers and
other hardware systems. The Company has divided the IT and non-IT systems into
two categories; mission critical and non-mission critical. Mission critical
systems are those that would affect the
17
<PAGE> 20
health and safety of the public by causing a disruption in supplying
electricity. Non-mission critical systems are those that would not cause a
disruption in supplying electricity, but may still have a material, negative
impact on the liquidity and financial condition of the Company. The following
chart shows the initiatives, the completion percentage of the various stages and
an estimated completion date for the mission critical systems:
Mission Critical Systems
<TABLE>
<CAPTION>
ESTIMATED
PLANNING- DATE OF
INITIATIVES ASSESSMENT CORRECTION TESTING IMPLEMENT COMPLETION
----------- ---------- ---------- ------- --------- ----------
<S> <C> <C> <C> <C> <C>
Distribution 100% 100% 100% 100% N/A
Generation 100% 82% 82% 82% 04/1999
IT Services* 100% 51% 23% 23% 07/1999
Transmission 100% 75% 0% 0% 04/1999
</TABLE>
*IT Services includes business applications and telecommunications.
The description of the stages are:
Planning-
Assessment: Develop a project plan, compile a complete list of
affected systems, and prepare a detailed technical
plan.
Correction: Make the required changes identified in
Planning-Assessment.
Testing: Test all changes made in the Correction stage to
insure that systems will meet the compliance criteria
and the systems will be accepted by user management.
Implementation: Integrate the changed systems into a production
environment and begin use. Monitor subsequent changes
to other systems to ensure overall system integrity.
Management considers the Company's non-mission critical systems to be Y2K
compliant.
Internal systems are not the only ones that may have a material effect on the
Company. Institutions external to the Company, such as vendors and customers,
may also impact the Company's operations if their systems are not Y2K compliant.
Vendors could impact the Company by their inability to deliver goods and
services required by the Company to operate. Customers could impact the Company
by their inability to operate, reducing the sale of power, or their inability to
pay the Company for the power consumed. The Company has decided to address this
issue by identifying major vendors and customers and sending surveys to discover
their level of Y2K compliance. Major vendors are defined as those that provide
critical goods or services to the Company, or those that provide critical
components to the Company (such as fuel suppliers and financial institutions).
Major customers are identified as those customers that are at the greatest risk
of being impacted by the Y2K problem and are large consumers of power (mainly
industrial and commercial customers). To date, the surveys to the major vendors
have been sent out and approximately half of those vendors have responded to the
survey. The responses are in the process of being reviewed. The surveys to major
18
<PAGE> 21
customers are in the process of being sent out. The projected completion date of
system surveys of external parties is expected to be December, 1998.
The Company's cost to address its Y2K problem is currently estimated at $1.7
million, with approximately $0.6 million expended so far. The remaining $1.1
million is expected to be spent before July, 1999. The expenses associated with
Y2K are being funded through cash flows from operations. Only a nominal amount
of the Y2K budget is being expended on hardware. Most of the budget is being
expended on software. The Company's overall IT operating budget for the year
ended December 31, 1998 is approximately $13.4 million, however, the bulk of the
Y2K expenses were budgeted and expended by the various departments that were
affected by Y2K issues.
The Company's IT department did not defer any significant system
implementations, nor did the department accelerate any system implementations.
Many of the Y2K issues were addressed by the normal process of upgrades from
software vendors and from the planned migration from a 16-bit operating system
to a 32-bit operating system designed specifically for networking large numbers
of personal computers. The migration of operating systems included the
replacement of several hundred older personal computers that could not
efficiently run the new 32-bit operating system. The replacement computers were
modern personal computers which were Y2K compliant.
At this point in time, management has not engaged any firm, nor does it plan to
engage any firm, to perform an independent verification and validation of the
Company's Y2K compliance. The Company's independent accountants will review the
Y2K process, but will not issue an opinion on Y2K compliance.
The risks of not addressing the Y2K problem include the failure to bill
customers, collect payments, pay invoices, operate generation facilities,
operate substations, and order and receive critical materials. Each of these
risks, should they materialize, could have a material, negative impact on the
operations, liquidity and financial condition of the Company. However, it is the
opinion of management that the action plan outlined above will adequately
address the Y2K risks facing the Company and reduce them to manageable levels so
that Y2K issues will not materially impact the Company.
At present, the Company does not have a contingency plan in place to
specifically cover the Y2K issues. However, management is continually monitoring
the progress of each initiative. In the first quarter of 1999, management will
evaluate the reasonableness of the projected completion dates and at that time
determine if a contingency plan is required. As of the date of this filing,
Management reasonably expects the completion of the initiatives in a timely
manner; thus, a contingency plan is not required.
POWER MARKETING OPERATIONS
Historically, the Company's power marketing operations focused solely upon
purchasing economic power from other utilities to meet the Company's native load
needs and, where economically feasible, selling any excess generation capacity
to other utilities. In January 1997, the scope of the Company's power marketing
operations was expanded to include the purchase and sale of electric commodity
products in the wholesale energy market. Activities include back-to-back
19
<PAGE> 22
sales of third party electric energy in short term (next day) or hourly
transactions along with the sale of municipal generation under partnership
agreements. The Company generally enters into longer term sales or trades,
greater than a month, but less than one year when backed by physical assets and
fixed fuel prices or forward purchases. Risk management controls are in place to
minimize risk. Such controls include risk management hardware/software,
mid-office risk management personnel, and an experienced corporate risk manager.
SABINE TEXICAN PIPELINE ACQUISITION
In order to compete in the emerging deregulated energy services market that
encompasses both natural gas and electric power, the Company must focus on
meeting the customer's total energy needs. The acquisition of Sabine has added
assets that are outside of the Company's traditional service territory. It is
management's opinion that the acquisition of Sabine will facilitate Cleco's
strategy to become an energy services company that produces, procures, and
transports energy. For more information regarding the acquisition of Sabine by
Cleco Energy, LLC, see Note C of the Notes to Consolidated Financial Statements.
HOLDING COMPANY FORMATION
At the October 23, 1998 meeting of the Cleco board of directors, the directors
approved a proposal to reorganize the Company into a public holding company
structure. The proposed holding company structure would create a parent company
that would include several subsidiaries, one of which would contain the
Company's generation, transmission and distribution electric utility operations.
Another subsidiary, Cleco Midstream Resources LLC, would operate the Company's
energy production, procurement and natural gas pipeline businesses. A third
subsidiary, Cleco Services LLC, would sell utility support services to municipal
governments, rural electric cooperatives and investor-owned electric companies.
Under the terms of the proposal, the newly organized holding company would
become the owner of all of Cleco Corporation's outstanding common and preferred
stock and existing Cleco Corporation common and preferred shareholders would
exchange their Cleco Corporation stock for stock in the holding company. The
proposal is subject to prior approvals of the LPSC, the FERC, and Cleco's
shareholders. It is anticipated that approval from Cleco's shareholders will be
sought in connection with the 1999 Annual Meeting.
20
<PAGE> 23
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
4 $80,000,000 364 Day Credit Agreement dated August 28, 1998
between the Company and the Bank of New York, as Agent.
11 Computation of Net Income Per Common Share for the three
and nine months ended September 30, 1998 and September 30,
1997
12 Computation of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preferred Stock Dividends for
the twelve months ended September 30, 1998
15 Awareness letter, dated November 13, 1998, from
PricewaterhouseCoopers LLP regarding review of the
unaudited interim financial statements
27 Financial Data Schedule
(b) Reports on Form 8-K
During the three-month period ended September 30, 1998, the
Company filed no Current Reports on Form 8-K.
21
<PAGE> 24
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 thereunto duly authorized.
CLECO CORPORATION
(Registrant)
By: /s/ Thomas J. Howlin
--------------------------------------
Thomas J. Howlin
Senior Vice President of Finance
and Chief Financial Officer
(Principal Financial Officer)
Date: November 16, 1998
22
<PAGE> 25
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4 $80,000,000 364 Day Credit Agreement dated August 28, 1998
between the Company and the Bank of New York, as Agent.
11 Computation of Net Income Per Common Share for the three
and nine months ended September 30, 1998 and September 30,
1997
12 Computation of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preferred Stock Dividends for
the twelve months ended September 30, 1998
15 Awareness letter, dated November 13, 1998, from
PricewaterhouseCoopers LLP regarding review of the
unaudited interim financial statements
27 Financial Data Schedule
<PAGE> 1
EXHIBIT 4
365-DAY CREDIT AGREEMENT
BY AND AMONG
CLECO CORPORATION
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS AGENT
------------------------
$80,000,000
------------------------
DATED AS OF AUGUST 28, 1998
BNY CAPITAL MARKETS, INC.,
AS LEAD ARRANGER
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ................................................. 1
1.1. Definitions ......................................................................... 1
1.2. Principles of Construction .......................................................... 13
2. AMOUNT AND TERMS OF LOANS .................................................................. 14
2.1. Revolving Credit Loans .............................................................. 14
2.2. Notes ............................................................................... 14
2.3. Procedure for Borrowing Revolving Credit Loans ...................................... 15
2.4. Competitive Bid Loans; Procedure .................................................... 16
2.5. Voluntary Reduction or Termination of Aggregate
Commitments ......................................................................... 18
2.6. Prepayments of the Loans ............................................................ 19
2.7. Conversions and Continuations ....................................................... 20
2.8. Interest Rate and Payment Dates ..................................................... 21
2.9. Substituted Interest Rate ........................................................... 22
2.10. Taxes .............................................................................. 22
2.11. Illegality ......................................................................... 24
2.12. Increased Costs .................................................................... 25
2.13. Indemnification for Loss ........................................................... 26
2.14. Survival of Certain Obligations .................................................... 27
2.15. Use of Proceeds .................................................................... 27
2.16. Capital Adequacy ................................................................... 28
2.17. Lenders' Records ................................................................... 28
2.18. Extension of Commitment Period ..................................................... 28
2.19. Substitution of Lender. ............................................................ 29
3. FEES; PAYMENTS ............................................................................. 30
3.1. Facility Fee ........................................................................ 30
3.2. Agent's Fees ........................................................................ 30
3.3. Pro Rata Treatment and Application of Principal
Payments ............................................................................ 30
4. REPRESENTATIONS AND WARRANTIES ............................................................. 31
4.1. Subsidiaries; Capitalization ........................................................ 31
4.2. Existence and Power ................................................................. 31
4.3. Authority ........................................................................... 31
4.4. Binding Agreement ................................................................... 31
4.5. Litigation and Regulatory Proceedings ............................................... 31
4.6. Required Consents ................................................................... 32
4.7. No Conflicting Agreements, Compliance with Laws ..................................... 32
4.8. Governmental Regulations ............................................................ 33
4.9. Federal Reserve Regulations; Use of Loan
Proceeds ............................................................................ 33
4.10. Plans .............................................................................. 33
4.11. Financial Statements ............................................................... 33
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C> <C>
4.12. Property ........................................................................... 34
4.13. Environmental Matters .............................................................. 34
4.14. Year 2000 Issue .................................................................... 34
5. CONDITIONS TO EFFECTIVENESS ................................................................ 35
5.1. Evidence of Action .................................................................. 35
5.2. This Agreement ...................................................................... 35
5.3. Notes ............................................................................... 35
5.4. Approvals ........................................................................... 35
5.5. Certain Agreements .................................................................. 36
5.6. Opinion of Counsel to the Borrower .................................................. 36
5.7. Fees ................................................................................ 36
6. CONDITIONS OF LENDING - ALL LOANS .......................................................... 36
6.1. Compliance .......................................................................... 36
6.2. Borrowing Request; Competitive Bid Request .......................................... 36
6.3. Law ................................................................................. 37
6.4. Other Documents ..................................................................... 37
7. AFFIRMATIVE COVENANTS ...................................................................... 37
7.1. Financial Statements ................................................................ 37
7.2. Certificates; Other Information ..................................................... 37
7.3. Legal Existence ..................................................................... 38
7.4. Taxes ............................................................................... 38
7.5. Insurance ........................................................................... 39
7.6. Payment of Indebtedness and Performance of
Obligations ......................................................................... 39
7.7. Condition of Property ............................................................... 39
7.8. Observance of Legal Requirements .................................................... 39
7.9. Inspection of Property; Books and Records;
Discussions ......................................................................... 39
7.10. Licenses, Intellectual Property .................................................... 40
7.11. Capitalization ..................................................................... 40
7.12. Year 2000 Issue. ................................................................... 40
8. NEGATIVE COVENANTS ......................................................................... 40
8.1. Liens ............................................................................... 40
8.2. Merger, Consolidation, Purchase or Sale of
Assets, Etc. ........................................................................ 42
8.3. Loans, Advances, Etc. ............................................................... 43
8.4. Amendments, etc. of Certain Agreements .............................................. 44
9. DEFAULT .................................................................................... 44
9.1. Events of Default ................................................................... 44
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C> <C>
10. THE AGENT ................................................................................. 46
10.1. Appointment ........................................................................ 46
10.2. Delegation of Duties ............................................................... 47
10.3. Exculpatory Provisions ............................................................. 47
10.4. Reliance by Agent .................................................................. 47
10.5. Notice of Default .................................................................. 48
10.6. Non-Reliance on Agent and Other Lenders ............................................ 48
10.7. Indemnification .................................................................... 48
10.8. Agent in Its Individual Capacity ................................................... 49
10.9. Successor Agent .................................................................... 49
11. OTHER PROVISIONS .......................................................................... 50
11.1. Amendments and Waivers ............................................................. 50
11.2. Notices ............................................................................ 51
11.3. No Waiver; Cumulative Remedies ..................................................... 52
11.4. Survival of Representations and Warranties ......................................... 52
11.5. Payment of Expenses and Taxes ...................................................... 52
11.6. Lending Offices .................................................................... 53
11.7. Assignments and Participations ..................................................... 53
11.8. Counterparts ....................................................................... 55
11.9. Adjustments; Set-off ............................................................... 55
11.10. Construction ...................................................................... 56
11.11. Indemnity ......................................................................... 56
11.12. Governing Law ..................................................................... 57
11.13. Headings Descriptive .............................................................. 57
11.14. Severability ...................................................................... 57
11.15. Integration ....................................................................... 57
11.16. Consent to Jurisdiction ........................................................... 57
11.17. Service of Process ................................................................ 58
11.18. No Limitation on Service or Suit .................................................. 58
11.19. WAIVER OF TRIAL BY JURY ........................................................... 58
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A List of Commitments
Exhibit B Form of Note
Exhibit C Form of Borrowing Request
Exhibit D Form of Competitive Bid Request
Exhibit E Form of Invitation to Bid
Exhibit F Form of Competitive Bid
Exhibit G Form of Competitive Bid Accept/Reject Letter
Exhibit H Form of Competitive Bid Loan Confirmation
Exhibit I Form of Notice of Conversion/Continuation
Exhibit J Form of Assignment and Acceptance Agreement
Exhibit K Form of Opinion of Counsel to the Borrower
</TABLE>
<PAGE> 5
SCHEDULES
Schedule 1.1 List of Lending Offices
Schedule 4.1 List of Subsidiaries
Schedule 4.5 List of Litigation Not Otherwise Disclosed
Schedule 4.13 List of Environmental Matters
Schedule 8.1 List of Existing Liens together with a copy of
Section 1.04 of the CLECO Mortgage referred to in
Section 8.1(h) of the Credit Agreement.
<PAGE> 6
364-DAY CREDIT AGREEMENT, dated as of August 28, 1998, by and among CLECO
CORPORATION a Louisiana corporation (the "Borrower"), the lenders party hereto
(together with their respective assigns pursuant to Section 11.7, the "Lenders",
each a "Lender") and THE BANK OF NEW YORK, as agent for the Lenders (in such
capacity, the "Agent").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Revolving Credit Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base Rate.
"Accountants": PricewaterhouseCoopers, L.L.P. (or any
successor thereto), or such other firm of certified public accountants of
recognized national standing selected by the Borrower and reasonably
satisfactory to the Agent.
"Accumulated Funding Deficiency": as defined in Section 302 of
ERISA.
"Advance": with respect to a Revolving Credit Loan, an ABR
Advance or a Eurodollar Advance, as the case may be.
"Affected Advance": as defined in Section 2.9.
"Affected Principal Amount": in the event that (i) the
Borrower shall fail for any reason to borrow, convert or continue after it shall
have notified the Agent of its intent to do so in any instance in which it shall
have requested a Eurodollar Advance or shall have accepted one or more offers of
Competitive Bid Loans, an amount equal to the principal amount of such
Eurodollar Advance or accepted Competitive Bid Loan; (ii) a Eurodollar Advance
or a Competitive Bid Loan shall terminate for any reason prior to the last day
of the Interest Period applicable thereto, an amount equal to the principal
amount of such Eurodollar Advance or Competitive Bid Loan; and (iii) the
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance or a Competitive Bid Loan prior to the last day of the
Interest Period applicable thereto, an amount equal to the principal amount of
such Eurodollar Advance or Competitive Bid Loan so prepaid or repaid.
"Aggregate Commitments": on any date, the sum of all
Commitments on such date.
"Agreement": this 364-Day Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Rate in effect on such date
plus 1/2 of 1% or (ii) the BNY Rate in effect on such date.
<PAGE> 7
"Applicable Facility Fee Percentage": with respect to the
amount of the Aggregate Commitments, at all times during which the applicable
Pricing Level set forth below is in effect, the percentage set forth below next
to such Pricing Level, subject to the provisos set forth below:
Pricing Level Applicable Facility
Fee Percentage
Pricing Level I 0.0850%
Pricing Level II 0.1000%
Pricing Level III 0.1100%
Pricing Level IV 0.1250%
Pricing Level V 0.2000%
provided that (i) changes in the Applicable Facility Fee Percentage resulting
from a change in the Pricing Level shall become effective on the effective date
of any change in the rating by Moody's or S&P of the Borrower's first mortgage
bonds and (ii) in the event of a split in ratings resulting in the ratings on
the Borrower's first mortgage bonds by each of S&P and Moody's falling within
different Pricing Levels, the Applicable Facility Fee Percentage shall be the
higher percentage.
"Applicable Lending Office": in respect of any Lender, (i) in
the case of such Lender's ABR Advances and Competitive Bid Loans, its Domestic
Lending Office and (ii) in the case of such Lender's Eurodollar Advances, its
Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal
amount of Eurodollar Advances, at all times during which the applicable Pricing
Level set forth below is in effect, the percentage set forth below next to such
Pricing Level, subject to the provisos set forth below:
Pricing Level Applicable Margin
Pricing Level I 0.240%
Pricing Level II 0.250%
Pricing Level III 0.290%
Pricing Level IV 0.300%
Pricing Level V 0.425%
provided that (i) changes in the Applicable Margin resulting from a
change in the Pricing Level shall become effective on the effective
date of any change in the rating by Moody's or S&P of the Borrower's
first mortgage bonds and (ii) in the event of a split in ratings
resulting in the ratings on the Borrower's first mortgage bonds by each
of S&P and Moody's falling within different Pricing Levels, the
Applicable Margin shall be the higher percentage.
"Asset Sale": any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person of any Property (including,
without limitation, any Stock or other securities of another Person) of the
Borrower or any of its Subsidiaries, other than inventory or accounts
receivables or other receivables sold, transferred or otherwise disposed of in
the ordinary course of business.
<PAGE> 8
"Assignment and Acceptance Agreement": an assignment and
acceptance agreement executed by an assignor and an assignee pursuant to which
the assignor assigns to the assignee all or any portion of such assignor's
Loans, Note and Commitment, substantially in the form of Exhibit J.
"Benefited Lender": as defined in Section 11.9.
"Bid Rate": as defined in Section 2.4(b).
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrowing Date": any Business Day on which the Lenders make
Revolving Credit Loans in accordance with a Borrowing Request or one or more
Lenders make Competitive Bid Loans pursuant to Competitive Bids which have been
accepted by the Borrower.
"Borrowing Request": a request for Revolving Credit Loans in
the form of Exhibit C.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and exchange
and Eurodollar funding between banks may be carried on in London, England.
"Capital Lease Obligations": with respect to any Person,
obligations of such Person with respect to leases which, in accordance with
GAAP, are required to be capitalized on the financial statements of such Person.
"CLECO Mortgage": the Indenture of Mortgage, dated as of July
1, 1950, as supplemented and amended through the date hereof, made by the
Borrower to First National Bank of Commerce (formerly The National Bank of
Commerce in New Orleans), as Trustee, as the same may be further amended,
supplemented or otherwise modified from time to time in accordance with Section
8.4.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's
undertaking during the Commitment Period to make Revolving Credit Loans, subject
to the terms and conditions hereof, in an aggregate outstanding principal amount
not exceeding the amount set forth next to the name of such Lender in Exhibit A
under the heading "Commitment", as the same may be reduced pursuant to Section
2.5.
<PAGE> 9
"Commitment Percentage": as of any date and with respect to
each Lender, the percentage equal to a fraction (i) the numerator of which is
the Commitment of such Lender on such date (or, if there are no Commitments on
such date, on the last date upon which one or more Commitments were in effect),
and (ii) the denominator of which is sum of the Commitments of all Lenders on
such date (or, if there are no Commitments on such date, on the last date upon
which one or more Commitments were in effect).
"Commitment Period": the period from the Effective Date until
the day before the Maturity Date.
"Common Equity": as of any date of determination, an amount
equal to the sum of (i) common Stock of the Borrower, (ii) premium on capital
Stock of the Borrower (as such term is used in the Financial Statements) and
(iii) retained earnings of the Borrower and its Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"Competitive Bid": an offer by a Lender, in the form of
Exhibit F, to make a Competitive Bid Loan.
"Competitive Bid Accept/Reject Letter": a notification given
by the Borrower pursuant to Section 2.4 in the form of Exhibit G.
"Competitive Bid Loan": each Loan from a Lender to the
Borrower pursuant to Section 2.4.
"Competitive Bid Loan Confirmation": a confirmation by the
Agent to a Lender of the acceptance by the Borrower of any Competitive Bid (or
Portion thereof) made by such Lender, substantially in the form of Exhibit H.
"Competitive Bid Request": a request by the Borrower, in the
form of Exhibit D, for Competitive Bids.
"Competitive Interest Period": as to any Competitive Bid Loan,
the period commencing on the date of such Competitive Bid Loan and ending on the
date requested in the Competitive Bid Request with respect to such Competitive
Bid Loan, which date shall not be earlier than 7 days after the date of such
Competitive Bid Loan or later than 180 days after the date of such Competitive
Bid Loan; provided, however, that if any Competitive Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless such next succeeding Business Day would
be a date on or after the Maturity Date, in which case such Competitive Interest
Period shall end on the next preceding Business Day, and provided further that
no Competitive Interest Period shall end after the Maturity Date. Interest shall
accrue from and including the first day of a Competitive Interest Period to but
excluding the last day of such Competitive Interest Period.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
<PAGE> 10
"Contingent Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any return on any investment
made by another Person or any Indebtedness, lease, dividend or other obligation
of any other Person in any manner, whether contingent or whether directly or
indirectly, including, without limitation, any obligation in respect of the
liabilities of any partnership in which such other Person is a general partner,
except to the extent that such liabilities of such partnership are nonrecourse
to such other Person and its separate Property. The amount of any Contingent
Obligation of a Person shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Continuing Lenders": as defined in Section 2.18(b).
"Control Person": as defined in Section 2.16.
"Conversion/Continuation Date": the date on which (i) a
Eurodollar Advance is converted to an ABR Advance, (ii) the date on which an ABR
Advance is converted to a Eurodollar Advance or (iii) the date on which a
Eurodollar Advance is continued as a new Eurodollar Advance.
"Corporate Officer": with respect to the Borrower, the
chairman of the board, the president, any vice president, the chief executive
officer, the chief financial officer, the secretary, the treasurer or the
controller thereof.
"Default": any of the events specified in Section 9.1, whether
or not any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": lawful currency of the United States.
"Domestic Lending Office": in respect of any Lender,
initially, the office or offices of such Lender designated as such on Schedule
1.1; thereafter, such other office of such Lender through which it shall be
making or maintaining ABR Advances or Competitive Bid Loans, as reported by such
Lender to the Agent and the Borrower, provided that any Lender may so report
different Domestic Lending Offices for all of its ABR Advances and all of its
Competitive Bid Loans, whereupon references to the Domestic Lending Office of
such Lender shall mean either or both of such offices, as applicable.
"Effective Date": August 28, 1998.
"Eligible Assignee": any of the following: (i) commercial
banks, finance companies, insurance companies and other financial institutions
and funds (whether a corporation, partnership or other entity) engaged generally
in making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business; provided that any such entity shall have combined
capital and surplus of at least $250,000,000 and shall be entitled, as of the
date such entity becomes a Lender, to receive payments under the Note without
deduction or withholding with respect to Tax on the Overall Net Income, (ii)
each of the Lenders and (iii) any affiliate of a Lender.
<PAGE> 11
"Employee Benefit Plan": an employee benefit plan within the
meaning of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Employee Stock Ownership Plan": The Central Louisiana
Electric Company, Inc. 401(k) Savings and Investment Plan ESOP Trust, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 8.4.
"Environmental Laws": any and all federal, state and local
laws relating to the use, storage, transporting, manufacturing, handling,
discharge, disposal or recycling of Hazardous Substances or pollutants and
including, without limitation, (i) the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 USCA ss.9601 et seq.; (ii) the
Resource Conservation and Recovery Act of 1976, as amended, 42 USCA ss.6901 et
seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA ss.2601 et.
seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA ss.1251 et.
seq.; (v) the Clean Air Act, as amended, 42 USCA ss.7401 et seq.; (vi) the
Hazardous Materials Transportation Authorization Act of 1994, as amended, 49
USCA ss.5101 et seq. and (viii) all rules and regulations under any of the
foregoing and under any analogous state laws, judgments, decrees and injunctions
and any analogous state laws applicable to the Borrower.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee
Benefit Plan, ERISA, the PBGC or a provision of the Code pertaining to employee
benefit plans, any Person that is a member of any group of organizations within
the meaning of Sections 414(b), (c), (m) or (o) of the Code of which the
Borrower or any of its Subsidiaries is a member.
"Eurodollar Advances": collectively, the Revolving Credit
Loans (or any portions thereof) at such time as they (or such portions) are made
and/or being maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Interest Period": with respect to any Eurodollar
Advance requested by the Borrower, the period commencing on, as the case may be,
the Borrowing Date or Conversion/Continuation Date with respect to such
Eurodollar Advance and ending one, two, three or six months thereafter, as
selected by the Borrower in its irrevocable Borrowing Request or its irrevocable
Notice of Conversion/Continuation, provided, however, that if any Eurodollar
Interest Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month or beyond the Maturity Date, in which event such
Eurodollar Interest Period shall end on the immediately preceding Business Day,
any Eurodollar Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Eurodollar Interest Period) shall end
on the last Business Day of a calendar month and the Borrower shall select
Interest Periods so as not to have more than five different Eurodollar Interest
Periods outstanding at any one time for all Eurodollar Advances.
<PAGE> 12
"Eurodollar Lending Office": in respect of any Lender,
initially, the office, branch or affiliate of such Lender designated as such on
Schedule 1.1 (or, if no such office branch or affiliate is specified, its
Domestic Lending Office); thereafter, such other office, branch or affiliate of
such Lender through which it shall be making or maintaining Eurodollar Advances,
as reported by such Lender to the Agent and the Borrower.
"Eurodollar Rate": with respect to the Eurodollar Interest
Period applicable to any Eurodollar Advance, a rate of interest per annum, as
determined by the Agent and then rounded to the nearest 1/16 of 1% or, if there
is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%, equal to the rate,
as reported by BNY to the Agent, quoted by BNY to leading banks in the interbank
eurodollar market as the rate at which BNY is offering Dollar deposits in an
amount equal approximately to the Eurodollar Advance of BNY to which such
Interest Period shall apply for a period equal to such Interest Period, as
quoted at approximately 11:00 a.m. two Business Days prior to the first day of
such Interest Period.
"Event of Default": any of the events specified in Section
9.1, provided that any requirement specified in Section 9.1 for the giving of
notice, the lapse of time, or both, or any other condition specified in Section
9.1, has been satisfied.
"Extension Request": as defined in Section 2.18(a).
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum (expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%),
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average of the quotations for such day on such transactions
received by BNY as determined by BNY and reported to the Agent.
"FERC": the Federal Energy Regulatory Commission or any
Governmental Authority succeeding to the functions thereof.
"FERC Order": that certain letter order, dated August 12,
1998, in Docket No. ES98-37-000 issued by FERC, or any renewal or replacement
order thereof, together with any supplemental order thereto, in each case
authorizing the Borrower to issue notes or drafts maturing not more than one
year after the date of issue or renewal thereof or assumption of liability
thereon (in each case as described in Section 204(e) of the Federal Power Act,
as amended and in effect from time to time) in an aggregate principal amount not
less than the sum of the Commitments hereunder plus the aggregate principal
amount of any such notes or drafts of the Borrower (other than the Notes) out
standing from time to time.
"Financial Statements": as defined in Section 4.11.
<PAGE> 13
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied. If at any time any change in GAAP
would affect the computation of any financial requirement set forth in this
Agreement, the Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such requirement to reflect such change in GAAP (subject to the
approval of the Required Lenders), provided that, until so amended, (i) such
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such requirement made before and after giving effect to such
change in GAAP.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Hazardous Substance": (i) any hazardous or toxic substance,
material or waste listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR ss.172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined as,
or designated in, any Environmental Law as a "hazardous substance," "toxic
substance," "hazardous material," "hazardous waste," "restricted hazardous
waste," "pollutant," "toxic pollutant" or words of similar import.
"Highest Lawful Rate": as to any Lender, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on the Note held thereby or which may
be owing to such Lender pursuant to this Agreement and the other Loan Documents
under the laws applicable to such Lender and this transaction.
"Indebtedness": as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed money
or the deferred purchase price of Property (other than trade payables incurred
in the ordinary course of business), (ii) indebtedness evidenced by notes,
bonds, debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (v) all liabilities
secured by any Lien on any Property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
statutory Liens arising in the ordinary course of business), (vi) obligations
under Capital Lease Obligations and (vii) Contingent Obligations.
"Indemnified Person": as defined in Section 11.11.
"Intellectual Property": all copyrights, trademarks,
servicemarks, patents, trade names and service names.
<PAGE> 14
"Interest Payment Date": (i) as to any ABR Advance, the last
day of each March, June, September and December commencing on the first of such
days to occur after such ABR Advance is made or any Eurodollar Advance is
converted to an ABR Advance, (ii) as to any Eurodollar Advance in respect of
which the Borrower has selected a Eurodollar Interest Period of one, two or
three months, the last day of such Interest Period, (iii) as to any Eurodollar
Advance in respect of which the Borrower has selected a Eurodollar Interest
Period of six months, the day which is three months after the first day of such
Interest Period and the last day of such Interest Period, (iv) as to any
Competitive Bid Loan as to which the Borrower has selected an Interest Period of
90 days or less, the last day of such Competitive Interest Period, and (v) as to
any Competitive Bid Loan as to which the Borrower has selected a Competitive
Interest Period of more than 90 days, the day which is 90 days after the first
day of such Competitive Interest Period and the last day of each subsequent
90-day period thereafter or, if sooner, the last day of such Competitive
Interest Period.
"Interest Period": a Eurodollar Interest Period or a
Competitive Interest Period, as the context may require.
"Invitation to Bid": an invitation to make Competitive Bids in
the form of Exhibit E.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan Documents": collectively, this Agreement and the Notes.
"Loans": the Revolving Credit Loans and/or the Competitive Bid
Loans, as the case may be.
"Long Term Credit Agreement": the Revolving Credit Agreement,
dated as of June 15, 1995, by and among the Borrower, the lenders party thereto
and BNY, as agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"LREC": the Louisiana Rural Electric Corporation, or any
Governmental Authority succeeding to the functions thereof.
"Margin Stock": any "margin stock", as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as the same may be
amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i)
the financial condition, operations, business, prospects or Property of (a) the
Borrower or (b) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Agent and the Lenders to enforce their rights and
remedies under the Loan Documents.
<PAGE> 15
"Material Adverse Effect": a material adverse effect on (i)
the financial condition, operations, business, prospects or Property of (a) the
Borrower or (b) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Agent and the Lenders to enforce their rights and
remedies under the Loan Documents.
"Maturity Date": the day which is 364 days after the Effective
Date (or, if such date is not a Business Day, the Business Day immediately
preceding such day), as the same may be extended from time to time in accordance
with Section 2.18, or such earlier date on which the Notes shall become due and
payable, whether by acceleration or otherwise.
"Maximum Offer": as defined in Section 2.4(b).
"Maximum Request": as defined in Section 2.4(a).
"Moody's": Moody's Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Non-Extending Lender": as defined in Section 2.18(b).
"Note": with respect to each Lender in respect of such
Lender's Revolving Credit Loans and Competitive Bid Loans, a promissory note,
substantially in the form of Exhibit B, payable to the order of such Lender;
each such promissory note having been made by the Borrower and dated the
Effective Date, including all replacements thereof and substitutions therefor.
"Notice of Conversion/Continuation": a notice substantially in
the form of Exhibit I.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Pension Plan": at any date of determination, any Employee
Benefit Plan (including a Multiemployer Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within the six years immediately preceding such date, were in whole or in part,
the responsibility of the Borrower, any of its Subsidiaries or any ERISA
Affiliate.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": any individual, firm, partnership, joint venture,
corporation, association, business enterprise, limited liability company, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary, or other capacity, and
for the purpose of the definition of "ERISA Affiliate", a trade or business.
"Portion": as defined in Section 2.4(b).
<PAGE> 16
"Pricing Level I": any time when the rating of the Borrower's
first mortgage bonds is (i) A or higher by S&P and (ii) A2 or higher by Moody's.
"Pricing Level II": any time when (i) the rating of the
Borrower's first mortgage bonds is (a) A- or higher by S&P and (b) A3 or higher
by Moody's and (ii) Pricing Level I does not apply.
"Pricing Level III": any time when (i) the rating of the
Borrower's first mortgage bonds is (a) BBB+ or higher by S&P and (b) Baa1 or
higher by Moody's and (ii) Pricing Levels I and II do not apply.
"Pricing Level IV": any time when (i) the rating of the
Borrower's first mortgage bonds is (a) BBB or higher by S&P and (b) Baa2 or
higher by Moody's and (ii) Pricing Levels I, II and III do not apply.
"Pricing Level V": any time when the rating of the Borrower's
first mortgage bonds is (i) BBB- or below by S&P and (ii) Baa3 or below by
Moody's.
"Prohibited Transaction": a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible
or mixed property.
"Proposed Bid Rate": as applied to any Remaining Interest
Period with respect to a Lender's Competitive Bid Loan, the rate per annum that
such Lender in good faith would have quoted to the Borrower had the Borrower
requested that such Lender make a Competitive Bid Loan on the first day of such
Remaining Interest Period, assuming no Default or Event of Default existed on
such day and that the Borrower had the right to borrow hereunder on such day,
such rate to be determined by such Lender in good faith in its sole discretion.
"Real Property": all real property owned or leased (or
previously owned or leased) by the Borrower or any of its Subsidiaries (or any
of their respective predecessors).
"Remaining Interest Period": (i) in the event that the
Borrower shall fail for any reason to borrow a Revolving Credit Loan in respect
of which it shall have requested a Eurodollar Advance or convert an Advance to,
or continue an Advance as, a Eurodollar Advance after it shall have notified the
Agent of its intent to do so, a period equal to the Eurodollar Interest Period
that the Borrower elected in respect of such Eurodollar Advance; or (ii) in the
event that the Borrower shall fail for any reason to borrow a Competitive Bid
Loan after it shall have accepted one or more offers of Competitive Bid Loans, a
period equal to the Competitive Interest Period that the Borrower elected in
respect of such Competitive Bid Loan; or (iii) in the event that a Eurodollar
Advance or a Competitive Bid Loan shall terminate for any reason prior to the
last day of the Interest Period applicable thereto, a period equal to the
remaining portion of such Interest Period if such Interest Period had not been
so terminated; or (iv) in the event that the Borrower shall prepay or repay all
or any part of the principal amount of a Eurodollar Advance or a Competitive Bid
Loan prior to the last day of the Interest Period applicable thereto, a period
equal to the period from and including the date of such prepayment or repayment
to but excluding the last day of such Interest Period.
<PAGE> 17
"Reportable Event": with respect to any Pension Plan, (i) any
event set forth in Sections 4043(b) (other than a Reportable Event as to which
the 30 day notice requirement is waived by the PBGC under applicable
regulations), 4062(c) or 4063(a) or ERISA or the regulations thereunder, (ii) an
event requiring the Borrower, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, or
(iii) any failure to make any payment required by Section 412(m) of the Code.
"Required Lenders": Lenders having Commitments equal to at
least 66 2/3% of the Aggregate Commitments or, if the Commitments have been
terminated or otherwise no longer exist, Lenders having an unpaid principal
balance of Loans equal to at least 66 2/3% of the aggregate out standing Loans.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"S&P": Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., or any successor thereto.
"SEC": the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Solvent": with respect to any Person on a particular date,
the condition that on such date, (i) the fair value of the Property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the present fair
salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts as they
become absolute and matured, (iii) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (iv) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's Property would constitute an unreasonably
small amount of capital.
"Special Counsel": Emmet, Marvin & Martin, LLP, special
counsel to the Agent.
"Stock": any and all shares, rights, interests,
participations, warrants or other equivalents (however designated) of corporate
stock.
"Submission Deadline": as defined in Section 2.4(b).
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Stock having ordinary voting power to elect a majority of the board
of directors or similar managing body, irrespective of whether a class or
classes shall or might have voting power by reason of the happening of any
contingency, or (ii) in respect of an association, partnership, joint venture or
other business entity, is entitled to share in more than 50% of the profits and
losses, however determined.
"Tax": any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
<PAGE> 18
"Tax on the Overall Net Income": as to any Person, a Tax
imposed by the jurisdiction in which that Person's principal office (and/or, in
the case of a Lender, its Domestic Lending Office) is located or by any
political subdivision or taxing authority thereof or in which that Person is
deemed to be doing business on all or part of the net income, profits or gains
of that Person (whether worldwide, or only insofar as such income, profits or
gains are considered to arise in or to relate to a particular jurisdiction, or
otherwise).
"Termination Event": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination under Section 4041(c) of ERISA, (iii) the institution
of proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv)
the appointment of a trustee to administer any Pension Plan under Section 4042
of ERISA.
"Total Assets": as of any date of determination, the total
assets of the Borrower determined in accordance with GAAP.
"Total Capitalization": the difference between (a) the sum of
(i) preferred Stock of the Borrower (less deferred compensation relating to
unallocated convertible preferred Stock of the Borrower held by the Employee
Stock Ownership Plan), plus (ii) common Stock of the Borrower and any premium on
capital Stock thereon (as such term is used in the Financial Statements), plus
(iii) retained earnings of the Borrower, plus (iv) all Indebtedness of the
Borrower (net of unamortized premium and discount (as such term is used in the
Financial Statements)), less (b) treasury Stock of the Borrower.
"United States": the United States of America.
"Year 2000 Issue": the failure of computer software, hardware
and firmware systems and equipment containing embedded computer chips to
properly receive, transmit, process, manipulate, store, retrieve, re-transmit or
in any other way utilize data and information due to the occurrence of the year
2000 or the inclusion of dates on or after January 1, 2000.
1.2 Principles of Construction
(a) All terms defined in a Loan Document shall have the
meanings given such terms therein when used in the other Loan Documents or any
certificate or opinion made or delivered pursuant thereto, unless otherwise
defined therein.
(b) As used in the Loan Documents and in any certificate or
opinion made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document as
a whole and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive;
the word "including" is not limiting; and the word "or" is not exclusive.
<PAGE> 19
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, references to a time shall refer to New York City time.
(g) Unless specifically provided in a Loan Document to the
contrary, in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
(h) References in any Loan Document to a fiscal period shall
refer to that fiscal period of the Borrower.
2. AMOUNT AND TERMS OF LOANS
2.1. Revolving Credit Loans
Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Revolving Credit Loan"
and, as the context may require, collectively with all other Revolving Credit
Loans of such Lender and with the Revolving Credit Loans of all other Lenders,
the "Revolving Credit Loans") to the Borrower from time to time during the
Commitment Period, provided, however, that immediately after giving effect
thereto the outstanding principal balance of such Lender's Revolving Credit
Loans would not exceed such Lender's Commitment, and the aggregate outstanding
principal balance of all Lenders' Revolving Credit Loans and Competitive Bid
Loans would not exceed the Aggregate Commitments. During the Commitment Period,
the Borrower may borrow, prepay in whole or in part and reborrow under the
Aggregate Commitments, all in accordance with the terms and conditions of this
Agreement.
2.2. Notes
The Revolving Credit Loans and Competitive Bid Loans made by a
Lender shall be evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit B, payable to the order of such Lender and representing the
obligation of the Borrower to pay the sum of (i) the aggregate unpaid principal
balance of all Revolving Credit Loans made by such Lender plus (ii) the
aggregate unpaid principal balance of all Competitive Bid Loans made by such
Lender, in each case with interest thereon as prescribed in Section 2.8. Each
Note shall be dated the Effective Date, be stated to mature on the Maturity Date
and bear interest from the date thereof on the unpaid principal balance thereof
at the applicable interest rate or rates per annum determined as provided in
Section 2.8, payable as specified in Section 2.8.
2.3. Procedure for Borrowing Revolving Credit Loans
(a) The Borrower may borrow Revolving Credit Loans under the
Aggregate Commitments on any Business Day during the Commitment Period,
provided, however, that the Borrower shall notify the Agent (by telephone or
fax) no later than 11:00 a.m., three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Advances and 11:30 a.m., on the
<PAGE> 20
requested Borrowing Date, in the case of ABR Advances, in each case specifying
the aggregate principal amount to be borrowed under the Aggregate Commitments,
the requested Borrowing Date, whether such borrowing is to consist of one or
more Eurodollar Advances, ABR Advances, or a combination thereof and if the
borrowing is to consist of one or more Eurodollar Advances, the length of the
Eurodollar Interest Period for each such Eurodollar Advance, provided, however,
that no Eurodollar Interest Period selected in respect of any Revolving Credit
Loan shall end after the Maturity Date. If the Borrower fails to give timely
notice in connection with a request for a Eurodollar Advance, the Borrower shall
be deemed to have elected that such Advance shall be made as an ABR Advance.
Each such notice shall be irrevocable and confirmed promptly by delivery to the
Agent of a Borrowing Request. Each ABR Advance shall be in an aggregate
principal amount equal to $5,000,000 or an integral multiple of $1,000,000 in
excess thereof (or, if the unused amount of the Aggregate Commitments is less
than such amount, then such lesser amount of the unused Aggregate Commitments),
and each Eurodollar Advance shall be in an aggregate principal amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) Upon receipt of each notice of borrowing from the
Borrower, the Agent shall promptly notify each Lender thereof. Subject to its
receipt of the notice referred to in the preceding sentence, each Lender will
make the amount of its Commitment Percentage of each borrowing available to the
Agent for the account of the Borrower at the office of the Agent set forth in
Section 11.2 not later than 2:00 p.m. on the relevant Borrowing Date requested
by the Borrower, in funds im mediately available to the Agent at such office.
The amounts so made available to the Agent on such Borrowing Date will then,
subject to the satisfaction of the terms and conditions of this Agreement, be
made available on such date to the Borrower by the Agent at the office of the
Agent specified in Section 11.2 by crediting the account of the Borrower on the
books of such office with the aggregate of said amounts received by the Agent.
(c) Unless the Agent shall have received prior notice from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by fax
or other writing) that such Lender will not make available to the Agent such
Lender's Commitment Percentage of the Revolving Credit Loans requested by the
Borrower, the Agent may assume that such Lender has made such share available to
the Agent on the Borrowing Date in accordance with this Section, provided that
such Lender received notice of the proposed borrowing from the Agent, and the
Agent may, in reliance upon such assumption, make available to the Borrower on
the Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made its Commitment Percentage of such Loans available to the
Agent, such Lender and the Borrower severally agree to pay to the Agent
forthwith on demand such corresponding amount (to the extent not previously paid
by the other), together with interest thereon for each day from the date such
amount is made available to the Borrower to the date such amount is paid to the
Agent, at a rate per annum equal to, in the case of the Borrower, the applicable
interest rate set forth in Section 2.8 for such Loans, and, in the case of such
Lender, the Federal Funds Rate in effect on each such day (as determined by the
Agent in accordance with the definition of "Federal Funds Rate" set forth in
Section 1.1). Such payment by the Borrower, however, shall be without prejudice
to its rights against such Lender. If such Lender shall pay to the Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Revolving Credit Loan as part of the Revolving Credit Loans for purposes of this
Agreement, which Revolving Credit Loan shall be deemed to have been made by
such Lender on the Borrowing Date applicable to such Revolving Credit Loans.
The failure of any Lender to make its Commitment Percentage of any requested
Revolving Credit Loan available to the Agent pursuant to this subsection shall
not relieve any other Lender of such other Lender's obligation to make its
<PAGE> 21
own Commitment Percentage of such Revolving Credit Loan available to the Agent
in accordance with this subsection, provided, however, that no Lender shall be
liable or responsible for the failure by any other Lender to make any Revolving
Credit Loans required to be made by such other Lender.
(d) If a Lender makes a new Revolving Credit Loan on a
Borrowing Date on which the Borrower is to repay a Revolving Credit Loan from
such Lender, such Lender shall apply the proceeds of such new Revolving Credit
Loan to make such repayment, and only the excess of the proceeds of such new
Revolving Credit Loan over the Revolving Credit Loan being repaid need be made
available to the Agent, for the Borrower's account.
(e) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of borrowing given to the Agent, the
Agent may act without liability upon the basis of telephonic notice of such
borrowing believed by the Agent in good faith to be from an authorized officer
of the Borrower prior to receipt of written confirmation. In each such case, the
Agent's records with regard to any such telephone notice shall be presumptively
correct, absent manifest error.
2.4. Competitive Bid Loans; Procedure
(a) The Borrower may make Competitive Bid Requests by 11:00
a.m. at least two Business Days prior to the proposed Borrowing Date for one or
more Competitive Bid Loans. Each Competitive Bid Request given to the Agent
(which shall promptly on the same day give notice thereof to each Lender by fax
of an Invitation to Bid if the Competitive Bid Request is not rejected pursuant
to this Section), shall be by telephone (confirmed by fax or other written
electronic means promptly on the same day by the delivery of a Competitive Bid
Request signed by the Borrower), and shall specify (i) the proposed Borrowing
Date, which shall be a Business Day, (ii) the aggregate amount of the requested
Competitive Bid Loans (the "Maximum Request") which amount (A) shall not exceed
an amount which, on the proposed Borrowing Date and after giving effect to the
requested Competitive Bid Loans, would cause the aggregate outstanding principal
balance of all Loans of all Lenders to exceed the Aggregate Commitments and (B)
shall be in a principal amount equal to $3,000,000 or an integral multiple of
$1,000,000 in excess thereof, (iii) the Competitive Interest Period(s) therefor
and the last day of each such Competitive Interest Period, and (iv) if more than
one Competitive Interest Period is so specified, the principal amount allocable
to each such Competitive Interest Period (which amount shall not be less than
$3,000,000 or an integral multiple of $1,000,000 in excess thereof). A
Competitive Bid Request that does not conform substantially to the form of
Exhibit D shall be rejected, and the Agent shall promptly notify the Borrower of
such rejection. Notwithstanding anything contained herein to the contrary, (1)
not more than three Competitive Interest Periods may be requested pursuant to
any Competitive Bid Request and (2) not more than five Competitive Bid Loans may
be outstanding at any one time.
(b) Each Lender in its sole discretion may (but is not
obligated to) submit one or more Competitive Bids to the Agent not later than
10:00 a.m. at least one Business Day prior to the proposed Borrowing Date
specified in such Competitive Bid Request (such time being herein called the
"Submission Deadline"), by fax or other writing, and thereby irrevocably offer
to make all or any part (any such part referred to as a "Portion") of any
Competitive Bid Loan described in the relevant Competitive Bid Request at a rate
of interest per annum (each a "Bid Rate") specified therein in an aggregate
principal amount of not less than $3,000,000 or an integral multiple of
$1,000,000 in excess thereof, provided that Competitive Bids submitted by the
Agent may only be
<PAGE> 22
submitted if the Agent notifies the Borrower of the terms of its Competitive Bid
not later than thirty minutes prior to the Submission Deadline. Multiple
Competitive Bids may be delivered to and by the Agent. The aggregate Portions of
Competitive Bid Loans for any or all Competitive Interest Periods offered by
each Lender in its Competitive Bid may exceed the Maximum Request contained in
the relevant Competitive Bid Request, provided that each Competitive Bid shall
set forth the maximum aggregate amount of the Competitive Bid Loans offered
thereby which the Borrower may accept (the "Maximum Offer"), which Maximum Offer
shall not exceed the Maximum Request. If any Lender shall elect not to make a
Competitive Bid, such Lender shall so notify the Agent by fax not later than the
Submission Deadline therefor, provided, however, that the failure by any Lender
to give any such notice shall not obligate such Lender to make any Competitive
Bid Loan.
(c) The Agent shall promptly give notice by telephone
(promptly confirmed by fax or other writing) to the Borrower of all Competitive
Bids received by the Agent prior to the Submission Deadline which comply in all
material respects with this Section. The Borrower shall, in its sole discretion
but subject to Section 2.4(d), irrevocably accept or reject any such Competitive
Bid (or any Portion thereof) not later than 12:00 noon on the day of the
Submission Deadline by notice to the Agent by telephone (confirmed by fax or
other writing in the form of a Competitive Bid Accept/Reject Letter promptly the
same day). Promptly upon receipt by the Agent of such a Competitive Bid
Accept/Reject Letter, the Agent will give notice to each Lender that submitted a
Competitive Bid as to the extent, if any, that such Lender's Competitive Bid
shall have been accepted. If the Agent fails to receive notice from the
Borrower of its acceptance or rejection of any Competitive Bids at or prior to
1:00 p.m. on the day of the Submission Deadline, all such Competitive Bids
shall be deemed to have been rejected by the Borrower, and the Agent will give
to each Lender that submitted a Competitive Bid notice of such rejection by
telephone on such day. In due course following the acceptance of any Competitive
Bid, the Agent shall notify each Lender which submitted a Competitive Bid, in
the form of a Competitive Bid Loan Confirmation, of the amount, maturity date
and Bid Rate for each Competitive Bid Loan.
(d) If the Borrower accepts a Portion of a proposed
Competitive Bid Loan for a single Competitive Interest Period at the Bid Rate
provided therefor in a Lender's Competitive Bid, such Portion shall be in a
principal amount of $3,000,000 or an integral multiple of $1,000,000 in excess
thereof (subject to such lesser allocation as may be made pursuant to the
provisions of this Section 2.4(d)). The aggregate principal amount of
Competitive Bid Loans accepted by the Borrower following Competitive Bids
responding to a Competitive Bid Request shall not exceed the Maximum Request.
The aggregate principal amount of Competitive Bid Loans accepted by the Borrower
pursuant to a Lender's Competitive Bid shall not exceed the Maximum Offer
therein contained. If the Borrower accepts any Competitive Bid Loans or Portion
offered in any Competitive Bid, the Borrower must accept Competitive Bids (and
Competitive Bid Loans and Portions thereby offered) based exclusively upon the
successively lowest Bid Rates within each Competitive Interest Period and no
other criteria. If two or more Lenders submit Competitive Bids with identical
Bid Rates for the same Competitive Interest Period and the Borrower accepts any
thereof, the Borrower shall, subject to the first three sentences of this
Section 2.4(d), accept all such Competitive Bids as nearly as possible in
proportion to the amounts of such Lender's respective Competitive Bids with
identical Bid Rates for such Competitive Interest Period, provided, that if the
amount of Competitive Bid Loans to be so allocated is not sufficient to enable
each such Lender to make such Competitive Bid Loan (or Portions thereof) in an
aggregate principal amount of $3,000,000 or an integral multiple of $1,000,000
in excess thereof, the Borrower shall round the Competitive Bid Loans (or
Portions thereof) allocated to such Lender or Lenders as the Borrower shall
select as necessary to a minimum of $1,000,000 or an integral multiple of
$500,000 in excess thereof.
<PAGE> 23
(e) Not later than 2:00 p.m. on the relevant Borrowing Date,
each Lender whose Competitive Bid was accepted by the Borrower shall make
available to the Agent at its office set forth in Section 11.2, in immediately
available funds, the proceeds of such Lender's Competitive Bid Loan(s). The
amounts so made available to the Agent on such Borrowing Date will then, subject
to the satisfaction of the terms and conditions of this Agreement, as determined
by the Agent, be made available on such date to the Borrower by the Agent at the
office of the Agent specified in Section 11.2 by crediting the account of the
Borrower on the books of such office with the aggregate of said amounts received
by the Agent.
(f) All notices required by this Section 2.4 shall be given in
accordance with Section 11.2.
(g) The Competitive Bid Loans made by each Lender shall be
evidenced by a Note referred to in Section 2.2. Each Competitive Bid Loan shall
be due and payable on the last day of the Competitive Interest Period applicable
thereto.
2.5. Voluntary Reduction or Termination of Aggregate Commitments
The Borrower shall have the right, upon at least three
Business Days' prior written notice to the Agent, at any time to terminate the
Aggregate Commitments or from time to time to permanently reduce the Aggregate
Commitments, provided, however, that any such reduction shall be in the amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, and
provided further that the Borrower shall prepay the Loans by the amount, if any,
by which the aggregate unpaid principal balance of the Loans exceeds the amount
of the Aggregate Commitments as so reduced. Reductions of the Aggregate
Commitments shall be applied pro rata according to the Commitment of each
Lender. Simultaneously with each reduction of the Aggregate Commitments under
this Section, the Borrower shall pay the Facility Fee accrued on the amount by
which the Aggregate Commitments have been reduced and prepay the Loans as
required by Section 2.6.
2.6. Prepayments of the Loans
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the Loans without premium or penalty, in full at any time or in part from
time to time by notifying the Agent in writing no later than 11:30 a.m. on the
proposed prepayment date, in the case of Revolving Credit Loans consisting of
ABR Advances and at least three Business Days prior to the proposed prepayment
date, in the case of Competitive Bid Loans or Revolving Credit Loans consisting
of Eurodollar Advances, specifying the Loans to be prepaid, the amount to be
prepaid and the date of prepayment. Such notice shall be irrevocable and the
amount specified in such notice shall be due and payable on the date specified,
together with accrued interest to the date of such payment on the amount
prepaid. Upon receipt of such notice, the Agent shall promptly notify (i) in the
case of a prepayment of Revolving Credit Loans, each Lender or (ii) in the case
of a prepayment of Competitive Bid Loans, the applicable Lender thereof. Each
partial prepayment shall be in an aggregate principal amount of (A) $5,000,000
or an integral multiple of $1,000,000 in excess thereof, in the case of
Revolving Credit Loans consisting of ABR Advances or Eurodollar Advances, (B)
$3,000,000 or an integral multiple of $1,000,000 in excess thereof, in the case
of Revolving Credit Loans consisting of Competitive Bid Loans or, (C) if the
outstanding principal balance of the Loans
<PAGE> 24
is less that the minimum amounts set forth in clauses (A) and (B), then such
lesser outstanding principal balance, as the case may be. After giving effect to
any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal amount of such
Eurodollar Advances shall exceed (subject to Section 2.7) $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. If any prepayment is made in
respect of any Eurodollar Advance or Competitive Bid Loan, in whole or in part,
prior to the last day of the applicable Interest Period, the Borrower agrees to
indemnify the applicable Lenders in accordance with Section 2.13.
(b) Mandatory Prepayments Relating to Reductions of the
Aggregate Commitments. Simultaneously with each reduction of the Aggregate
Commitments under Section 2.5, the Borrower shall prepay the Loans by the
amount, if any, by which the aggregate unpaid principal balance of the Loans
exceeds the amount of the Aggregate Commitments as so reduced. Such prepayments
shall be applied between the Revolving Credit Loans and the Competitive Bid
Loans at the discretion of the Borrower, provided that any prepayments of
Revolving Credit Loans shall be applied pro rata according the Commitment of
each Lender.
(c) In General. Simultaneously with each prepayment of a Loan,
the Borrower shall prepay all accrued interest on the amount prepaid through the
date of prepayment.
2.7. Conversions and Continuations
(a) The Borrower may elect from time to time to convert
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election (confirmed by the delivery of a
Notice of Conversion/Continuation), specifying the amount to be so converted,
provided, that any such conversion of Eurodollar Advances shall only be made on
the last day of the Interest Period applicable thereto. In addition, the
Borrower may elect from time to time to convert ABR Advances to Eurodollar
Advances and to continue Eurodollar Advances by selecting a new Eurodollar
Interest Period therefor, in each case by giving the Agent at least three
Business Days' prior irrevocable notice of such election (confirmed by the
delivery of a Notice of Conversion/Continuation), in the case of a conversion
to, or continuation of, Eurodollar Advances, specifying the amount to be so
converted and the initial Eurodollar Interest Period relating thereto, provided
that any such conversion of ABR Advances to Eurodollar Advances shall only be
made on a Business Day and any such continuation of Eurodollar Advances shall
only be made on the last day of the Eurodollar Interest Period applicable to the
Eurodollar Advances which are to be continued as such new Eurodollar Advances.
The Agent shall promptly provide the Lenders with a copy of each such Notice of
Conversion/Continuation. ABR Advances and Eurodollar Advances may be converted
or continued pursuant to this Section in whole or in part, provided that
conversions of ABR Advances to Eurodollar Advances, or continuations of
Eurodollar Advances shall be in an aggregate principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof.
(b) Notwithstanding anything in this Section to the contrary,
no ABR Advance may be converted to a Eurodollar Advance and no Eurodollar
Advance may be continued, if a Default or Event of Default has occurred and is
continuing either at the time the Borrower shall notify the Agent of its
election to convert or continue or on the requested Conversion/Continuation
Date. In such event, such ABR Advance shall be automatically continued as an ABR
Advance, or such Eurodollar Advance shall be automatically converted to an ABR
Advance on the last day of
<PAGE> 25
the Eurodollar Interest Period applicable to such Eurodollar Advance. If an
Event of Default shall have occurred and be continuing, the Agent shall, at the
request of the Required Lenders, notify the Borrower (by telephone or otherwise)
that all, or such lesser amount as the Required Lenders shall designate, of the
outstanding Eurodollar Advances shall be automatically converted to ABR
Advances, in which event such Eurodollar Advances shall be automatically
converted to ABR Advances on the date such notice is given.
(c) No Interest Period selected in respect of conversion or
continuation of any Eurodollar Advance shall end after the Maturity Date.
(d) Each conversion or continuation shall be effected by each
Lender by applying the proceeds of its new ABR Advance or Eurodollar Advance, as
the case may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for purposes of
Sections 4, 5 or 6).
(e) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of borrowing given to the Agent, the
Agent may act without liability upon the basis of telephonic notice of such
borrowing believed by the Agent in good faith to be from an authorized officer
of the Borrower prior to receipt of written confirmation. In each such case, the
Agent's records with regard to any such telephone notice shall be presumptively
correct, absent manifest error.
2.8. Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section
2.8(b), prior to maturity, the Loans shall bear interest on the outstanding
principal balance thereof at the applicable interest rate or rates per annum set
forth below:
ADVANCES RATE
Each ABR Advance Alternate Base Rate.
Each Eurodollar Advance Eurodollar Rate for the applicable
Eurodollar Interest Period plus the
Applicable Margin.
Each Competitive Bid Loan Bid Rate applicable thereto for the
applicable Competitive Interest
Period.
(b) Late Charges. If all or any portion of the principal
balance of or interest payable on any of the Loans or any other amount payable
under the Loan Documents shall not be paid when due (whether at the stated
maturity thereof, by acceleration or otherwise), such overdue balance or amount
shall bear interest at a rate per annum (whether before or after the entry of a
judgment thereon) equal to 2% plus the rate which would otherwise be applicable
pursuant to Section 2.8(a), from the date of such nonpayment to, but not
including, the date such balance is paid in full. All such interest shall be
payable on demand.
<PAGE> 26
(c) In General. Interest on ABR Advances to the extent based
on the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as
the case may be), and ABR Advances to the extent based on the Federal Funds
Rate, on Eurodollar Advances and on Competitive Bid Loans shall be calculated on
the basis of a 360-day year, in each case, for the actual number of days
elapsed, including the first day but excluding the last. Except as otherwise
provided in Section 2.8(b), interest shall be payable in arrears on each
Interest Payment Date and upon each payment (including prepayment) of the Loans.
Any change in the interest rate on the Loans resulting from a change in the
Alternate Base Rate shall become effective as of the opening of business on the
day on which such change shall become effective. The Agent shall, as soon as
practicable, notify the Borrower and the Lenders of the effective date and the
amount of each such change in the BNY Rate, but any failure to so notify shall
not in any manner affect the obligation of the Borrower to pay interest on the
Loans in the amounts and on the dates required. Each determination of the
Alternate Base Rate or a Eurodollar Rate by the Agent pursuant to this Agreement
shall be conclusive and binding on all parties hereto absent manifest error. At
no time shall the interest rate payable on the Loans, together with the
Commitment Fee and all other amounts payable under the Loan Documents, to the
extent the same are construed to constitute interest, exceed the Highest Lawful
Rate. If any amount paid hereunder would exceed the maximum amount of interest
permitted by the Highest Lawful Rate, than such amount shall automatically be
reduced to such maximum permitted amount, and interest for any subsequent
period, to the extent less than the maximum amount permitted for such period by
the Highest Lawful Rate, shall be increased by the unpaid amount of such
reduction. Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have been applied as
a prepayment of the Loans. The Borrower acknowledges that to the extent interest
payable on ABR Advances is based on the BNY Rate, such Rate is only one of the
bases for computing interest on loans made by the Lenders, and by basing
interest payable on ABR Advances on the BNY Rate, the Lenders have not committed
to charge, and the Borrower has not in any way bargained for, interest based on
a lower or the lowest rate at which the Lenders may now or in the future make
loans to other borrowers.
2.9. Substituted Interest Rate
In the event that the Agent shall have determined in the
exercise of its reasonable discretion (which determination shall be conclusive
and binding upon the Borrower) that by reason of circumstances affecting the
interbank eurodollar market either reasonable means do not exist for
ascertaining the Eurodollar Rate or the Required Lenders shall have notified the
Agent that they have determined (which determination shall be conclusive and
binding on the Borrower) that the applicable Eurodollar Rate will not adequately
and fairly reflect the cost to such Lenders of maintaining or funding loans
bearing interest based on such Eurodollar Rate, with respect to any portion of
the Revolving Credit Loans that the Borrower has requested be made as Eurodollar
Advances or Eurodollar Advances that will result from the requested conversion
or continuation of any portion of the Advances into or as Eurodollar Advances
(each, an "Affected Advance"), the Agent shall promptly notify the Borrower and
the Lenders (by telephone or otherwise, to be promptly confirmed in writing) of
such determination on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion/Continuation Date for such Affected Advances. If
the Agent shall give such notice, (a) any Affected Advances shall be made as ABR
Advances, (b) the Advances (or any portion thereof) that were to have been
converted to or continued as Affected Advances shall be converted to or
continued as ABR Advances and (c) any outstanding Affected Advances shall be
converted, on the last day of the then current Interest Period with respect
thereto, to ABR Advances. Until any notice under clauses (i) or (ii), as the
case may be, of this Section has been withdrawn by the Agent (by notice to the
Borrower promptly upon either (1) the
<PAGE> 27
Agent's having determined that such circumstances affecting the interbank
eurodollar market no longer exist and that adequate and reasonable means do
exist for determining the Eurodollar Rate pursuant to Section 2.8 or (2) the
Agent having been notified by such Required Lenders that circumstances no longer
render the Advances (or any portion thereof) to be Affected Advances), no
further Eurodollar Advances shall be required to be made by the Lenders, nor
shall the Borrower have the right to convert or continue all or any portion of
the Loans to Eurodollar Advances.
2.10 Taxes
(a) Payments to Be Free and Clear. Provided that all
documentation, if any, then required to be delivered by any Lender or the Agent
pursuant to Section 2.10(c) has been delivered, all sums payable by the Borrower
under the Loan Documents shall be paid free and clear of and (except to the
extent required by law) without any deduction or withholding on account of any
Tax (other than a Tax on the Overall Net Income of any Lender (for which payment
need not be free and clear, but no deduction or withholding shall be made unless
then required by applicable law)) imposed, levied, collected, withheld or
assessed by or within the United States or any political subdivision in or of
the United States or any other jurisdiction from or to which a payment is made
by or on behalf of the Borrower or by any federation or organization of which
the United States or any such jurisdiction is a member at the time of payment.
(b) Grossing-up of Payments. If the Borrower or any other
Person is required by law to make any deduction or withholding on account of any
such Tax from any sum paid or payable by the Borrower to the Agent or any
Lender under any of the Loan Documents:
(i) the Borrower shall notify the Agent and such Lender
of any such requirement or any change in any such requirement as soon as the
Borrower becomes aware of it;
(ii) the Borrower shall pay any such Tax before the date
on which penalties attach thereto, such payment to be made (if the liability to
pay is imposed on the Borrower) for its own account or (if that liability is
imposed on the Agent or such Lender, as the case may be) on behalf of and in the
name of the Agent or such Lender;
<PAGE> 28
(iii) the sum payable by the Borrower to the Agent or a
Lender in respect of which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, the Agent or such Lender, as
the case may be, receives on the due date therefor a net sum equal to what it
would have received had no such deduction, withholding or payment been required
or made; and
(iv) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (ii) above to
pay, the Borrower shall deliver to the Agent and the applicable Lender evidence
satisfactory to the other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant Governmental Authority;
provided that no additional amount shall be required to be paid to any Lender
under clause (iii) above except to the extent that any change after the date
hereof (in the case of each Lender listed on the signature pages hereof) or
after the date of the Assignment and Acceptance Agreement pursuant to which such
Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date of this Agreement or at the date of such
Assignment and Acceptance, as the case may be, in respect of payments to such
Lender, and provided further that any Lender claiming any additional amounts
payable pursuant to this Section 2.10 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(c) U.S. Tax Certificates. Each Lender that is organized under
the laws of any jurisdiction other than the United States shall deliver to the
Agent for transmission to the Borrower, on or prior to the Effective Date (in
the case of each Lender listed on the signature pages hereof) or on the
effective date of the Assignment and Acceptance Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of the Borrower or the Agent (each in the
reasonable exercise of its discretion), including, without limitation, upon the
occurrence of any event requiring a change in the most recent counterpart of any
form set forth below previously delivered by such Lender to the Borrower, such
certificates, documents or other evidence, properly completed and duly executed
by such Lender (including, without limitation, Internal Revenue Service Form
1001, Form 4224, Form W-8 or Form W-9, or any successor form, or any other
certificate or statement of exemption required by Treasury Regulations Section
1.1441-4(a) or Section 1.1441-6(c) or any successor thereto) to establish that
such Lender is not subject to deduction or withholding of United States federal
income tax under Section 1441 or 1442 of the Code or otherwise (or under any
comparable provisions of any successor statute) with respect to any payments to
such Lender of principal, interest, fees or other amounts payable under any of
the Loan Documents. The Borrower shall not be required to pay any additional
amount to any such Lender under Section 2.10(b)(iii) above if such Lender shall
have failed to satisfy the requirements of the immediately preceding sentence;
provided that if such Lender shall have satisfied such requirements on the
Effective Date (in the case of each Lender listed on the signature pages hereof)
or on the effective date of the Assignment and Acceptance Agreement pursuant to
which it became a Lender
<PAGE> 29
(in the case of each other Lender), nothing in this Section shall relieve the
Borrower of its obligation to pay any additional amounts pursuant to Section
2.10(b)(iii) in the event that, as a result of any change in applicable law,
such Lender is no longer properly entitled to deliver certificates, documents
or other evidence at a subsequent date establishing the fact that such Lender is
not subject to withholding as described in the immediately preceding sentence.
2.11. Illegality
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive, or any change therein or in the interpretation
or application thereof, shall make it unlawful for any Lender to make or
maintain its Eurodollar Advances as contemplated by this Agreement, the
commitment of such Lender hereunder to make Eurodollar Advances or convert ABR
Advances to Eurodollar Advances shall forthwith be suspended and such Lender's
Loans then outstanding as Eurodollar Advances affected hereby, if any, shall be
converted automatically to ABR Advances on the last day of the then current
Interest Period applicable thereto or on such earlier date if and as required by
law, provided that, before making any such suspension or conversion, such Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. If the commitment of any Lender with respect to Eurodollar Advances is
suspended pursuant to this Section and it is thereafter lawful (in the Lender's
determination) for such Lender to make or maintain Eurodollar Advances, such
Lender's commitment to make or maintain Eurodollar Advances shall be reinstated
upon notice to either (a) the Agent and the Borrower by such Lender or (b) the
Agent and such Lender by the Borrower.
2.12. Increased Costs
(a) In the event that any law, regulation, treaty or directive
hereafter enacted, promulgated, approved or issued or any change in any
presently existing law, regulation, treaty or directive therein or in the
interpretation or application thereof (whether or not having the force of law)
by any Governmental Authority charged with the administration thereof or
compliance by any Lender (or any corporation directly or indirectly owning or
controlling such Lender) with any request or directive from any Governmental
Authority:
(i) does or shall subject any Lender to any Taxes of any
kind whatsoever with respect to any Eurodollar Advances or its obligations under
this Agreement to make Eurodollar Advances, or change the basis of taxation of
payments to any Lender of principal, interest or any other amount payable
hereunder in respect of its Eurodollar Advances, including any Taxes required to
be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, Tax on the Overall Net Income of such
Lender or its Applicable Lending Office for any of such Advances by the
jurisdiction in which such Lender is incorporated or has its principal office or
such Applicable Lending Office, including, in the case of Lenders incorporated
in any State of the United States, such tax imposed by the United States); or
<PAGE> 30
(ii) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Eurodollar Advances which is not otherwise
included in the determination of a Eurodollar Rate; or
(iii) otherwise increases the cost to any Lender of
making, renewing, converting, continuing or maintaining its Eurodollar Advances
or its commitment to make such Eurodollar Advances, or reduces any amount
receivable hereunder in respect of its Eurodollar Advances,
then, in any such case, the Borrower shall pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such additional cost
or reduction in such amount receivable which such Lender deems to be material as
determined by such Lender; provided, however, that nothing in this Section shall
require the Borrower to indemnify the Lenders with respect to withholding Taxes
for which the Borrower has no obligation under Section 2.10, and provided
further, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. No failure by any Lender to demand
compensation for any increased cost during any Interest Period shall constitute
a waiver of such Lender's right to demand such compensation at any time,
provided, that no Lender shall be entitled to demand such compensation more than
90 days following the last day of the Interest Period in respect of which such
demand is made; provided further, however, that the foregoing proviso shall in
no way limit the right of any Lender to demand or receive such compensation to
the extent that such compensation relates to the retroactive application of any
law, regulation, treaty or directive described above if such demand is made
within 90 days after the implementation of such retroactive law, interpretation,
treaty or directive. A statement setting forth the calculations of any
additional amounts payable pursuant to the foregoing submitted by a Lender to
the Borrower shall be conclusive absent manifest error.
(b) In the event that any Lender shall determine (which
determination shall, absent manifest error, be conclusive and binding upon all
parties hereto), during any Eurodollar Interest Period during which a Eurodollar
Advance of such Lender shall be outstanding, that such Lender shall be required
to maintain reserves (i) (including, without limitation, marginal, emergency,
supplemental and special reserves) as established by the Board of Governors of
the Federal Reserve System or any other banking authority to which such Lender
is subject, in respect of eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board of Governors of the
Federal Reserve System) of such Lender or (ii) in respect of any other category
of liabilities, including deposits by reference to which the interest rate on
such Eurodollar Advance is determined, or any category of extensions of credit
or other assets, which includes loans by non-domestic offices of such Lender to
United States Residents, then such Lender shall promptly notify the Borrower by
telephone (confirmed thereafter by fax or other writing), specifying the
additional amounts required to indemnify such Lender against the cost of
maintaining such reserves (such written notice to provide in reasonably
sufficient detail the computation of such additional amounts), whereupon the
Borrower shall pay to such Lender, on the applicable Interest Payment Dates with
respect to the Eurodollar Advances of such Lender, such specified amounts as
additional interest with respect to such Lender's Eurodollar Advances
outstanding at such time or at any time thereafter
<PAGE> 31
(provided that, with respect to any subsequent Eurodollar Advances of such
Lender, no further or additional claims need be made by such Lender to the
Borrower with respect to such reserve requirements, provided further, however,
that such Lender shall promptly notify the Borrower if such reserve requirements
cease to exist). In connection with the foregoing, Eurodollar Advances shall be
deemed to constitute Eurocurrency liabilities and as such shall be deemed to be
subject to such reserve requirements without benefit of credits for proration,
exceptions or offsets which may be available from time to time to any Lender
under Regulation D.
2.13. Indemnification for Loss
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow, convert or continue an Advance after it shall
have given notice to do so in which it shall have requested a Eurodollar Advance
pursuant to Section 2.3 or 2.7, as the case may be, or if the Borrower shall
fail to borrow a Competitive Bid Loan after it shall have accepted one or more
offers therefor pursuant to Section 2.4, or if a Eurodollar Advance or a
Competitive Bid Loan shall be terminated for any reason prior to the last day of
the Interest Period applicable thereto, or if any repayment or prepayment of
the principal amount of a Eurodollar Advance or a Competitive Bid Loan is made
for any reason on a date which is prior to the last day of the Interest Period
applicable thereto, the Borrower agrees to indemnify each Lender against, and to
pay on demand directly to such Lender, any loss or expense suffered by such
Lender as a result of such failure to borrow, convert or continue, termination,
repayment or prepayment, including an amount, if greater than zero, equal to:
A x (B-C) x D
---
360
where:
"A" equals such Lender's (i) Commitment Percentage of the Affected
Principal Amount in the case of Eurodollar Advances or (ii) the
Affected Principal Amount in the case of Competitive Bid Loans;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Advances or the Bid Rate applicable to such Competitive Bid
Loan;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each
case expressed as a decimal), as the case may be, in effect on or about
the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such
date, for deposits (or, in the case of a Proposed Bid Rate, based on
the rate such Lender would have quoted) in an amount equal
approximately to such Lender's (i) Commitment Percentage of the
Affected Principal Amount in the case of Eurodollar Advances or (ii)
the Affected Principal Amount in the case of Competitive Bid Loans with
an Interest Period equal approximately to the applicable Remaining
Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of
such Remaining Interest Period;
<PAGE> 32
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance, including, without limitation, in liquidating or
employing deposits acquired to fund or maintain the funding of its Commitment
Percentage of the Affected Principal Amount, or redeploying funds prepaid or
repaid, in amounts which correspond to its Commitment Percentage of the Affected
Principal Amount. Each determination by the Agent or a Lender pursuant to this
Section shall be conclusive and binding on the Borrower absent manifest error.
2.14. Survival of Certain Obligations
The obligations of the Borrower under Sections 2.9, 2.10,
2.11, 2.12, 2.13, 2.16, 11.5 and 11.11 shall survive the termination of the
Aggregate Commitments, the payment of the Notes and all other amounts payable
under the Loan Documents.
2.15. Use of Proceeds
The proceeds of the Loans shall be used solely for the
Borrower's general corporate purposes not inconsistent with the provisions
hereof, including, without limitation, the provisions set forth in Section 4.9.
2.16. Capital Adequacy
If the amount of capital required or expected to be maintained
by any Lender or any Person directly or indirectly owning or controlling such
Lender (each a "Control Person"), shall be affected by the introduction or
phasing in of any law, rule or regulation after the Effective Date, any change
after the Effective Date in the interpretation of any existing law, rule or
regulation by any Governmental Authority charged with the administration
thereof, or compliance by such Lender or such Control Person with any directive,
guideline or request from any Governmental Authority (whether or not having the
force of law) promulgated or made after the Effective Date, and such Lender
shall have reasonably determined that such introduction, phasing in, change or
compliance shall have had or will thereafter have the effect of reducing (A) the
rate of return on such Lender's or such Control Person's capital, or (B) the
asset value to such Lender or such Control Person of the Loans made or
maintained by such Lender, in either case to a level below that which such
Lender or such Control Person could have achieved or would thereafter be able to
achieve but for such introduction, phasing in, change or compliance (after
taking into account such Lender's or such Control Person's policies regarding
capital adequacy) by an amount deemed by such Lender to be material to such
Lender or Control Person, then, within ten days after demand by such Lender, the
Borrower shall pay to such Lender or such Control Person such additional amount
or amounts as shall be sufficient to compensate such Lender or such Control
Person, as the case may be, for such reduction, provided, that no Lender shall
be entitled to demand such compensation more than 120 days following the last
day of the fiscal year of such Lender during which such capital requirement was
applicable and in respect of which such Lender is seeking compensation; provided
further, however, that the foregoing proviso shall in no way limit the right of
any Lender to demand or receive such compensation to the extent that such
compensation relates to the retroactive application by such Governmental
Authority of any law, rule, regulation, interpretation or phasing in described
above if such demand is made within 120 days after the implementation of such
retroactive law, rule, regulation, interpretation or phasing in. A statement as
to such amounts submitted by a Lender to the Borrower and the Agent shall
constitute such demand and shall be conclusive absent manifest error.
<PAGE> 33
2.17. Lenders' Records
Each Lender's records regarding the amount of each Loan, each
payment by the Borrower of principal and interest on the Loans and other
information relating to the Loans shall be presumptively correct absent manifest
error.
2.18. Extension of Commitment Period
(a) Provided that no Default or Event of Default shall exist,
the Borrower may request that the Commitment Period be extended for up to 364
days by giving written notice thereof (each an "Extension Request") to the Agent
at any time during the period which is not more than 75 days nor less than 35
days prior to the then current Maturity Date and, upon receipt of each such
notice, the Agent shall promptly notify each Lender thereof. Each Lender shall
endeavor to respond to each Extension Request by no later than 25 days prior to
the then current Maturity Date, provided that each Lender which shall have
failed so to respond by such time shall be deemed not to have consented thereto.
Unless all of the Lenders shall have consented in accordance with this Section
2.8, to such extension, the then current Maturity Date shall not be extended and
shall remain in full force and effect. In the event that Lenders having
Commitments equal to or more than 75% of the Aggregate Commitments shall not
have consented, in accordance with this Section 2.18, to such extension, the
then current Maturity Date shall not be extended and shall remain in full force
and effect. In the event that all Lenders shall have so consented, then on the
date upon which the last such consent shall have been received by the Agent, the
then existing Maturity Date shall be extended to the day which is 364 days after
such date (or, if such date is not a Business Day, the Business Day immediately
preceding such day).
(b) Notwithstanding any provision of Section 2.18(a) to the
contrary, in the event Lenders having Commitments equal to or more than 75% of
the Aggregate Commitments consent to an extension of the Maturity Date pursuant
to Section 2.18(a) (the "Continuing Lenders"), the Borrower shall have the
right, provided no Default or Event of Default shall have occurred and be
continuing, to replace or remove any Lender that did not so consent (each a
"Non-Extending Lender") by giving the Agent notice, no later than 20 days prior
to the then current Maturity Date, of its intent to extend such Maturity Date.
On or prior to the then current Maturity Date, the Borrower shall replace each
Non-Extending Lender with either an existing Lender willing to assume such
Non-Extending Lender's Commitment or with another Eligible Assignee willing to
assume such Non-Extending Lender's Commitment. In the event of a replacement of
a Non-Extending Lender, such Non-Extending Lender agrees to assign its rights
and obligations under the Loan Documents to an Eligible Assignee selected by the
Borrower with the consent of the Agent (which consent shall not be unreasonably
withheld) upon payment by or on behalf of such Eligible Assignee to such
Non-Extending Lender of such Non-Extending Lender's Commitment Percentage of all
outstanding Loans and accrued interest, fees and other sums payable under the
Loan Documents and to execute and deliver such documents evidencing such
assignment as shall be necessary or reasonably requested by the Borrower and
reasonably satisfactory to such Non-Extending Lender. In the event that the
Borrower shall have elected to replace or remove a Lender pursuant to this
Section 2.18(b), then on the date, if any, upon which all of the Borrower
obligations under this
<PAGE> 34
Section 2.18(b) shall have been satisfied, if any, the then existing Maturity
Date shall be extended to the day which is 364 days after such date (or, if such
date is not a Business Day, the Business Day immediately preceding such day),
provided, however, that if the Borrower shall not have satisfied such
obligations on or prior to the then existing Maturity Date, such Maturity Date
shall not be extended.
2.19. Substitution of Lender
In the event that the Borrower becomes obligated to pay
additional amounts to any Lender pursuant to Sections 2.10, 2.12 or 2.16, the
Borrower may, within 60 days of the demand by such Lender for such additional
amounts, and subject to the consent of the Agent (which consent shall not be
unreasonably withheld), designate an Eligible Assignee to purchase the Loans of
such Lender and such Lender's rights hereunder, without recourse to or warranty
by or expense to, such Lender, for a purchase price equal to the outstanding
principal amount of such Lender's Loans plus any accrued but unpaid interest
thereon and accrued but unpaid Facility Fees in respect of such Lender's
Commitment and any other amounts payable to such Lender hereunder, and to assume
all the obligations of such Lender hereunder, and, upon such purchase, such
Lender shall no longer be a party hereto or have any rights hereunder (except
those that survive full repayment hereunder) and shall be relieved from all
obligations to the Borrower hereunder, and the Eligible Assignee shall succeed
to the rights and obligations of such Lender hereunder. The Borrower shall
execute and deliver to such Eligible Assignee a Note. Notwithstanding anything
herein to the contrary, in the event that a Lender is replaced pursuant to this
Section 2.19, such Lender shall be entitled to receive the additional amounts to
which it would be entitled pursuant to Sections 2.10, 2.12, 2.13 and 2.16 had it
not been so replaced.
3. FEES; PAYMENTS
3.1. Facility Fee
The Borrower agrees to pay to the Agent, for the account of
the Lenders in accordance with each Lender's Commitment Percentage, during the
period from and including the Effective Date through but excluding the Maturity
Date, a fee (the "Facility Fee") equal to the Applicable Facility Fee Percentage
per annum of the average daily sum of the Aggregate Commitments, regardless of
usage, during such period. The Facility Fee shall be payable (i) quarterly in
arrears on the last day of each March, June, September and December during such
period, (ii) on the date of any reduction in the Aggregate Commitments (to the
extent of such reduction) and (iii) on the Maturity Date. The Facility Fee shall
be calculated on the basis of a 365/366-day year for the actual number of days
elapsed.
<PAGE> 35
3.2. Agent's Fees
The Borrower agrees to pay to the Agent, for its own account,
such fees as have been agreed to in writing by the Borrower and the Agent.
3.3. Pro Rata Treatment and Application of Principal Payments
Each payment, including each prepayment, of principal and
interest on the Loans and of the Facility Fee shall be made by the Borrower to
the Agent at its office set forth in Section 11.2 in funds immediately available
to the Agent at such office by 12:00 Noon on the due date for such payment, and,
promptly upon receipt thereof by the Agent, shall be remitted by the Agent in
like funds as received, to the Lenders according to the Commitment Percentage of
each Lender, in the case of the Facility Fee, pro rata according to the
aggregate outstanding principal balance of the Revolving Credit Loans, in the
case of principal and interest due thereon, and to the applicable Lender in the
case of principal and interest due on a Competitive Bid Loan. The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 12:00 Noon on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
extended to the next Business Day and (except with respect to payments in
respect of the Facility Fee) interest shall be payable at the applicable rate
specified herein during such extension.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to make the Loans, the Borrower makes the following representations and
warranties to the Agent and each Lender:
4.1. Subsidiaries; Capitalization
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear of any Liens.
The interest of the Borrower in each non-corporate Subsidiary is owned free and
clear of any Liens.
4.2. Existence and Power
Each of the Borrower and its Subsidiaries is duly organized or
formed and validly existing in good standing under the laws of the jurisdiction
of its incorporation or formation, has all requisite power and authority to own
its Property and to carry on its business as now conducted, and is in good
standing and authorized to do business as a foreign corporation in each
jurisdiction in which the nature of the business conducted therein or the
Property owned therein makes such qualification necessary, except where such
failure to qualify could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
<PAGE> 36
4.3. Authority
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents and to make the
borrowings contemplated hereby and by the Notes, to execute, deliver and carry
out the terms of the Notes and to incur the obligations provided for herein and
therein, all of which have been duly authorized by all proper and necessary
corporate or other applicable action and are in full compliance with its charter
or by-laws or its other organization documents.
4.4. Binding Agreement
The Loan Documents (other than the Notes) constitute, and the
Notes, when issued and delivered pursuant hereto for value received, will
constitute, the valid and legally binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and general principles of equity.
4.5. Litigation and Regulatory Proceedings
Except as disclosed in any of the Borrower's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997, the Borrower's Annual
Report to Stockholders for the fiscal year ended December 31, 1997, the
Borrower's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1998, or Schedule 4.5, there are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority (whether or not purportedly on
behalf of the Borrower or any of its Subsidiaries) pending or, to the knowledge
of the Borrower, threatened against the Borrower or any of its Subsidiaries,
which if adversely determined, could individually or in the aggregate reasonably
be expected to have a Material Adverse Effect, except that the commencement by
the Borrower or any Governmental Authority of a rate proceeding or earnings
review before such Governmental Authority shall not constitute such a pending or
threatened action, suit or proceeding unless and until such Governmental
Authority has made a final determination thereunder that could reasonably be
expected to have a Material Adverse Effect, call into question the validity or
enforceability of any of the Loan Documents, or could reasonably be expected to
result in the rescission, termination or cancellation of any material franchise,
right, license, permit or similar authorization held by the Borrower or any of
its Subsidiaries.
4.6. Required Consents
Except for information filings required to be made in the
ordinary course of business which are not a condition to the Borrower's
performance under the Loan Documents, no consent, authorization or approval of,
filing with, notice to, or exemption by, stockholders, any Governmental
Authority or any other Person is required to authorize, or is required in
connection with the execution, delivery and performance of the Loan Documents or
is required as a condition to the validity or enforceability of the Loan
Documents, except the FERC Order, which has been obtained prior to the Effective
Date and is in full force and effect and not subject to any appeals period
(except that with respect to the FERC Order, an appeal therefrom may be filed up
to September 11, 1998). The FERC Order expires August 12, 2000.
<PAGE> 37
4.7. No Conflicting Agreements, Compliance with Laws
(a) Neither the Borrower nor any of its Subsidiaries is in
default (i) under any mortgage, indenture, contract or agreement to which it is
a party or by which it or any of its Property is bound or (ii) with respect to
any judgment, order, writ, injunction, decree or decision of any Governmental
Authority, the effect of which default could reasonably be expected to have a
Material Adverse Effect. The execution, delivery or carrying out of the terms of
the Loan Documents will not constitute a default under, or require the mandatory
repayment of, or result in the creation or imposition of, or obligation to
create, any Lien upon any Property of the Borrower or any of its Subsidiaries
pursuant to the terms of, any such mortgage, indenture, contract or agreement.
(b) Each of the Borrower and its Subsidiaries (i) is complying
in all material respects with all statutes, regulations, rules and orders
applicable to the Borrower or such Subsidiary of all Governmental Authorities,
including, without limitation, Environmental Laws and ERISA, a violation of
which could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect and (ii) has filed or caused to be filed all tax returns
required to be filed and has paid, or has made adequate provision for the
payment of, all taxes shown to be due and payable on said returns or in any
assessments made against it (other than those being contested as permitted under
Section 7.4) which would be material to the Borrower or any of its Subsidiaries,
and no tax Liens have been filed with respect thereto.
4.8. Governmental Regulations
Neither the Borrower nor any of its Subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company" as
defined in, or is otherwise subject to regulation under, the Investment Company
Act of 1940, as amended, or (ii) a "holding company", or an "affiliate" or
"subsidiary company" of a "holding company", as those terms are defined in, or
is otherwise subject to regulation under, the Public Utility Holding Company Act
of 1935, as amended.
4.9. Federal Reserve Regulations; Use of Loan Proceeds
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including, without limitation, the provisions of Regulations T, U or X of the
Board of Governors of the Federal Reserve System, as amended. No part of the
proceeds of the Loans will be used, directly or indirectly, to purchase or carry
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying Margin Stock.
4.10. Plans
The only Pension Plan in effect as of the Effective Date is
The Central Louisiana Electric Company, Inc. Pension Plan. Each Employee Benefit
Plan of the Borrower, its Subsidiaries and their respective ERISA Affiliates is
in compliance with ERISA and the Code, where applicable, in all material
respects. The Borrower, its Subsidiaries and/or any ERISA Affiliate has, made
all contributions or payments to or under each such Pension Plan required by law
or the terms of such Pension Plan or any contract or agreement with respect
thereto, and none of the Borrower, its
<PAGE> 38
Subsidiaries or any of their respective ERISA Affiliates has incurred or expects
to incur any withdrawal liability or other liability (including any joint and
several liability) to the PBGC under ERISA. Neither the Borrower, any Subsidiary
or any ERISA Affiliate is party to any Multiemployer Plan.
4.11. Financial Statements
The Borrower has heretofore delivered to the Agent and the
Lenders copies of its Form 10-K for the fiscal year ended December 31, 1997,
containing the audited Consolidated Balance Sheets of the Borrower and its
Subsidiaries and the related Consolidated Statements of Operations,
Stockholder's Equity and Cash Flows for the period then ended, and its Form 10-Q
for the fiscal quarter ended March 31, 1998, containing the unaudited
Consolidated Balance Sheet of the Borrower and its Subsidiaries for such fiscal
quarter, together with the related Consolidated Statements of Operations and
Cash Flows for the fiscal quarter then ended (with the applicable related notes
and schedules, the "Financial Statements"). The Financial Statements have been
prepared in accordance with GAAP and fairly present the Consolidated financial
condition and results of the operations of the Borrower and its Subsidiaries as
of the dates and for the periods indicated therein. Since December 31, 1997, the
Borrower and each of its Subsidiaries has conducted its business only in the
ordinary course and there has been no Material Adverse Change.
4.12. Property
Each of the Borrower and its Subsidiaries has good and
marketable title to all of its Property, title to which is material to the
Borrower or such Subsidiary, subject to no Liens, except Permitted Liens.
4.13. Environmental Matters
(a) To the best knowledge of the Borrower, the Borrower and
each of its Subsidiaries is in compliance in all material respects with the
requirements of all applicable Environmental Laws.
(b) To the best knowledge of the Borrower, no Hazardous
Substances have been generated or manufactured on, transported to or from,
treated at, stored at or discharged from any Real Property in violation of any
Environmental Laws; no Hazardous Substances have been discharged into subsurface
waters under any Real Property in violation of any Environmental Laws; no
Hazardous Substances have been discharged from any Real Property on or into
Property or waters (including subsurface waters) adjacent to any Real Property
in violation of any Environmental Laws; and there are not now, nor ever have
been, on any Real Property any underground or above ground storage tanks of the
Borrower or any of its Subsidiaries regulated under any Environmental Laws;
except for such of the foregoing actions, events or conditions, which,
individually or collectively, could not reasonably be expected to have a
Material Adverse Effect.
(c) Except as described in Schedule 4.13, neither the Borrower
nor any of its Subsidiaries has received notice directly or otherwise learned
indirectly (through a Corporate Officer) of any claim, demand, suit, action,
proceeding, event, condition, report, directive, Lien, violation, non-compliance
or investigation indicating or concerning any potential or actual material
liability (including, without limitation, potential liability for enforcement,
investigatory costs,
<PAGE> 39
cleanup costs, government response costs, removal costs, remediation costs,
natural resources damages, Property damages, personal injuries or penalties)
arising in connection with: (x) any material non-compliance with or violation of
the requirements of any applicable Environmental Laws, or (y) the presence of
any Hazardous Substance on any Real Property (or any Real Property previously
owned by the Borrower or any of its Subsidiaries) or the release or threatened
release of any Hazardous Substance into the environment which individually or
collectively could reasonably be expected to have a Material Adverse Effect or
has any overtly threatened or actual liability in connection with the presence
of any Hazardous Substance on any Real Property (or any Real Property previously
owned by the Borrower or any of its Subsidiaries) or the release or threatened
release of any Hazardous Substance into the environment.
4.14. Year 2000 Issue
Each of the Borrower and each of its Subsidiaries has reviewed
the effect of the Year 2000 Issue on the computer software, hardware and
firmware systems and equipment containing embedded microchips owned or operated
by or for the Borrower and each Subsidiary or used or relied upon in the conduct
of their business (including systems and equipment supplied by others or with
which such computer systems of the Borrower and the Subsidiaries interface). The
costs to the Borrower and the Subsidiaries of any reprogramming required as a
result of the Year 2000 Issue to permit the proper functioning of such systems
and equipment and the proper processing of data, and the testing of such
reprogramming, and of the reasonably foreseeable consequences of the Year 2000
Issue to the Borrower or any of the Subsidiaries (including reprogramming errors
and the failure of systems or equipment supplied by others) are not reasonably
expected to result in a De fault or Event of Default or to have a Material
Adverse Effect.
5. CONDITIONS TO EFFECTIVENESS
This Agreement shall not become effective until such time as each of the
following conditions precedent shall have been satisfied (or waived in
accordance with Section 11.1):
5.1. Evidence of Action
The Agent shall have received a certificate, dated the
Effective Date, of the Secretary or Assistant Secretary of the Borrower
attaching a true and complete copy of the resolutions of its Board of Directors
and of all documents evidencing other necessary corporate action (in form and
substance satisfactory to the Agent) taken by it to authorize the Loan Documents
and the transactions contemplated thereby, attaching a true and complete copy
of its charter and by-laws, setting forth the incumbency of its officer or
officers who may sign the Loan Documents, including therein a signature specimen
of such officer or officers and attaching a certificate of good standing of the
Secretary of State of the jurisdiction of its incorporation.
5.2. This Agreement
The Agent (or Special Counsel) shall have received, in respect
of each Person listed on the signature pages of this Agreement, either a
counterpart signature page hereof signed on behalf of such Person, or written
evidence satisfactory to the Agent (which may include a facsimile transmission
of a signed signature page of this Agreement) that a counterpart signature page
hereof has been signed on behalf of such Person.
<PAGE> 40
5.3. Notes
The Agent shall have received a Note for each Lender, dated
the Effective Date, duly executed by a duly authorized officer of the Borrower.
5.4. Approvals
The Agent shall have received a certificate of a duly
authorized officer of the Borrower, dated the Effective Date, to the effect that
all approvals and consents of all Persons required to be obtained in connection
with the consummation of the transactions contemplated by the Loan Documents
have been duly obtained and are in full force and effect, and that all required
notices have been given and all required waiting periods have expired, attaching
thereto true and complete copies of all such required governmental and
regulatory authorizations and approvals, including, without limitation, approval
of the FERC.
5.5 Certain Agreements
The Agent shall have received a certificate of an officer of
the Borrower, in form and substance satisfactory to the Agent, certifying that
there have been no amendments or other modifications to either the CLECO
Mortgage or the Employee Stock Ownership Plan, or, if so, setting forth the same
in which case any such amendment or modification shall be in form and substance
satisfactory to the Agent.
5.6. Opinion of Counsel to the Borrower
The Agent shall have received an opinion of Phelps Dunbar,
L.L.P., counsel to the Borrower, addressed to the Agent, the Lenders and Special
Counsel, and dated the Effective Date, substantially in the form of Exhibit K,
and covering such additional matters as the Required Lenders may reasonably
request. It is understood that such opinion is being delivered to the Agent and
the Lenders upon the direction of the Borrower and that the Agent and the
Lenders may and will rely upon such opinion.
5.7. Fees
All fees payable to the Agent on the Effective Date, and the
fees and expenses of Special Counsel incurred and recorded to date in connection
with the preparation, negotiation and closing of the Loan Documents, shall have
been paid.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Loan (which shall not include a
continuation or conversion of a Loan pursuant to and in accordance with Section
2.7) is subject to the satisfaction of the following conditions precedent as of
the date of such Loan:
<PAGE> 41
6.1. Compliance
On each Borrowing Date and after giving effect to the Loans to
be made thereon, there shall exist no Default or Event of Default, the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though such representations and warranties had
been made on such Borrowing Date except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier date, and since December 31, 1997, there has been no Material
Adverse Change. Each borrowing by the Borrower shall constitute a certification
by the Borrower as of such Borrowing Date that each of the foregoing matters is
true and correct in all respects.
6.2. Borrowing Request; Competitive Bid Request
In the case of the borrowing of Revolving Credit Loans, the
Agent shall have received a Borrowing Request, and in the case of a borrowing of
a Competitive Bid Loan, the Agent shall have received a Competitive Bid Request
and such other documents required pursuant to Section 2.4, in each case duly
executed by a duly authorized officer of the Borrower.
6.3. Law
Such Loan shall not be prohibited by any applicable law, rule
or regulation.
6.4. Other Documents
The Agent shall have received such other documents as the
Agent or the Lenders shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in
effect, any Loan remains outstanding and unpaid, or any other amount is owing
under any Loan Document to any Lender or the Agent, the Borrower shall:
7.1. Financial Statements
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Agent and each Lender:
<PAGE> 42
(a) As soon as available, but in any event within 120 days
after the end of each fiscal year, a copy of Borrower's Annual Report on Form
10-K in respect of such fiscal year required to be filed by the Borrower with
the SEC, together with the financial statements attached thereto.
(b) As soon as available, but in any event within 60 days
after the end of each fiscal quarter, a copy of the Borrower's Quarterly Report
on Form 10-Q in respect of such fiscal quarter required to be filed by the
Borrower with the SEC, together with the financial statements attached thereto.
(c) Within 60 days after the end of each of the first three
fiscal quarters (120 days after the end of the last fiscal quarter), a
certificate of the chief financial officer of the Borrower (or such other
officer as shall be acceptable to the Agent) as to the Borrower's compliance, as
of such fiscal quarter ending date, with Section 7.11, and as to the occurrence
or continuance of no Default or Event of Default as of such fiscal quarter
ending date and the date of such certificate.
(d) Such other information as the Agent or any Lender may
reasonably request from time to time.
7.2. Certificates; Other Information
Furnish to the Agent and each Lender:
(a) Prompt written notice if: there shall occur and be
continuing a Default or an Event of Default or a Material Adverse Change shall
have occurred;
(b) Prompt written notice of: any material citation, summons,
subpoena, order to show cause or other document naming the Borrower or any of
its Subsidiaries a party to any proceeding before any Governmental Authority,
and include with such notice a copy of such citation, summons, subpoena, order
to show cause or other document or any lapse or other termination of, or
refusal to renew or extend, any material Intellectual Property, license, permit,
franchise or other authorization issued to the Borrower or any of its
Subsidiaries by any Person or Governmental Authority, and any of the foregoing
set forth in this subsection (b) could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or call into question
the validity or enforceability of any of the Loan Documents;
(c) Promptly upon becoming available, copies of all regular,
periodic or special reports, schedules and other material which the Borrower or
any of its Subsidiaries may be required to file with or deliver to any
securities exchange or the SEC, or any other Governmental Authority succeeding
to the functions thereof, material news releases and annual reports relating to
the Borrower or any of its Subsidiaries and (iii) upon the written request of
the Agent, reports that the Borrower or any of its Subsidiaries sends to or
files with the FERC;
(d) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any of its
Subsidiaries, or with respect to any of the Real Property, under any
Environmental Law, that could reasonably be expected to have a Material Adverse
Effect;
<PAGE> 43
(e) Prompt written notice of any change by either Moody's or
S&P in the rating on the Borrower's first mortgage bonds; and
(f) Such other information as the Agent or any Lender shall
reasonably request from time to time.
7.3. Legal Existence
Maintain its legal existence in good standing in the
jurisdiction of its incorporation or formation and in each other jurisdiction in
which the failure so to do could reasonably be expected to have a Material
Adverse Effect, and cause each of its Subsidiaries to maintain its legal
existence in good standing in each jurisdiction in which the failure so to do
could reasonably be expected to have a Material Adverse Effect.
7.4. Taxes
Pay and discharge when due, and cause each of its Subsidiaries
so to do, all Taxes, assessments and governmental charges, license fees and
levies upon, or with respect to the Borrower or such Subsidiary and all Taxes
upon the income, profits and Property of the Borrower and its Subsidiaries,
which if unpaid, could individually or collectively reasonably be expected to
have a Material Adverse Effect or become a Lien on the Property of the Borrower
or such Subsidiary (other than a Lien described in Section 8.1(a)), unless and
to the extent only that such Taxes, assessments, charges, license fees and
levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary, provided that the
Borrower shall give the Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
7.5. Insurance
Maintain, and cause each of its Subsidiaries to maintain, with
financially sound and reputable insurance companies insurance on all its
Property in at least such amounts and against at least such risks (but including
in any event public liability and business interruption coverage) as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to the Agent, upon written request of any Lender,
full information as to the insurance carried.
7.6. Payment of Indebtedness and Performance of Obligations
Pay and discharge when due, and cause each of its Subsidiaries
to pay and discharge, all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, could individually or
collectively reasonably be expected to have a Material Adverse Effect, or
become a Lien upon Property of the Borrower or any of its Subsidiaries other
than a Permitted Lien, unless and to the extent only that the validity of such
Indebtedness, obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Borrower
shall give the Agent prompt notice of any such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.
<PAGE> 44
7.7. Condition of Property
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each of
its Subsidiaries so to do, all Property necessary to the operation of the
Borrower's or such Subsidiary's material businesses.
7.8. Observance of Legal Requirements
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, including, without limitation, ERISA and all
Environmental Laws, a violation of which could individually or collectively
reasonably be expected to have a Material Adverse Effect, except such thereof as
shall be contested in good faith and by appropriate proceedings diligently
conducted by it, provided that the Borrower shall give the Agent prompt notice
of such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
7.9. Inspection of Property; Books and Records; Discussions
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and activities
and permit representatives of the Agent and any Lender to visit its offices, to
inspect any of its Property and examine and make copies or abstracts from any of
its books and records at any reasonable time and as often as may reasonably be
desired, and to discuss the business, operations, prospects, licenses, Property
and financial condition of the Borrower and its Subsidiaries with the officers
thereof and the Accountants; provided that, so long as no Default or Event of
Default exists, none of the Agent, its agents and representatives nor the
Lenders shall be entitled to examine or make copies or abstracts of, or
otherwise obtain information with respect to, the Borrower's records relating to
pending or threatened litigation if any such disclosure by the Borrower could
reasonably be expected (i) to give rise to a waiver of any attorney/client
privilege of the Borrower or any of its Subsidiaries relating to such
information or (ii) to be otherwise materially disadvantageous to the Borrower
or any of its Subsidiaries in the defense of such litigation.
7.10. Licenses, Intellectual Property
Obtain or maintain, as applicable, and cause each of its
Subsidiaries to obtain or maintain, as applicable, in full force and effect, all
licenses, franchises, Intellectual Property, permits, authorizations and other
rights as are necessary for the conduct of its business and the failure of which
to obtain or maintain could individually or collectively, reasonably be expected
to have a Material Adverse Effect.
<PAGE> 45
7.11. Capitalization
Maintain, as of the last day of each fiscal quarter, Common
Equity equal to at least 30% of Total Capitalization.
7.12. Year 2000 Issue
Take, and shall cause each of its Subsidiaries to take, all
necessary action to complete by December 31, 1999, the reprogramming of computer
software, hardware and firmware systems and equipment containing embedded
microchips owned or operated by or for the Borrower and its Subsidiaries or used
or relied upon in the conduct of their business (including systems and equipment
supplied by others or with which such systems of the Borrower or any of its
Subsidiaries interface) required as a result of the Year 2000 Issue to permit
the proper functioning of such computer systems and other equipment and the
testing of such systems and equipment, as so reprogrammed, except where the
failure to do such reprogramming or testing could not reasonably be expected to
have a Material Adverse Effect. At the request of the Agent, the Borrower shall
provide, and shall cause each of its Subsidiaries to provide, to the Agent
reasonable assurance of its compliance with the preceding sentence.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains out standing and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Agent, the Borrower shall not, directly or
indirectly:
8.1. Liens
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except:
(a) Liens for Taxes, assessments or similar charges incurred
in the ordinary course of business which are not delinquent or which are being
contested in accordance with Section 7.4, provided that enforcement of such
Liens is stayed pending such contest;
(b) Liens in connection with workers' compensation,
unemployment insurance or other social security obligations (but not ERISA), in
connection with deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds and other obligations of like nature arising in the ordinary
course of business, in connection with zoning ordinances, easements, rights of
way, minor defects, irregularities, and other similar restrictions affecting
real Property which do not adversely affect the value of such real Property or
the financial condition of the Borrower or such Subsidiary or impair its use
for the operation of the business of the Borrower or such Subsidiary, Liens
arising by operation of law such as mechanics', materialmen's, carriers',
warehousemen's liens incurred in the ordinary course of business which are not
delinquent or which are being contested in accordance with Section 7.6,
provided that enforcement of such Liens is stayed pending such contest and
Liens arising out of judgments or decrees which are being contested in
accordance with Section 7.6, provided that enforcement of such Liens is stayed
pending such contest;
<PAGE> 46
(c) Liens now existing or hereafter arising in favor of the
Agent or the Lenders under the Loan Documents;
(d) purchase money Liens on Property of the Borrower or any of
its Subsidiaries acquired after the date hereof to secure Indebtedness of the
Borrower incurred in connection with the acquisition of such Property, provided
that each such Lien is limited to such Property so acquired;
(e) Liens on Property of the Borrower and its Subsidiaries
existing on the Effective Date as set forth on Schedule 8.1 as renewed from
time to time, but not any increases in the amounts secured thereby or the
Property subjected to such Lien thereon (except under the CLECO Mortgage);
(f) Liens existing on Property of the Borrower or any of its
Subsidiaries acquired after the Effective Date provided that such Liens are at
all times thereafter limited to the Property so acquired and were not created in
contemplation of such acquisition;
(g) the Lien evidenced by the CLECO Mortgage; provided,
however, that such Lien shall not extend to or over any Property of a character
not subject on the date hereof to the Lien granted under the CLECO Mortgage;
(h) "permitted liens" as defined under Section 1.04 of the
CLECO Mortgage, as in effect on the date hereof, other than "funded liens"
described in clause (ix) of said Section 1.04;
(i) Liens created to secure Indebtedness representing, or
incurred to finance, the cost of Property acquired, constructed or improved by
the Borrower in the ordinary course of business after the date hereof and not
subject to (i) the Lien referred to in clause (g) above or (ii) Liens existing
on such Property at the time of acquisition thereof;
(j) Liens existing on property of any Person at the time that
such Person becomes a Subsidiary of the Borrower provided that such Liens were
not created to secure the acquisition of such Person;
(k) Liens to secure Indebtedness of any Subsidiary of the
Borrower to the Borrower or to any of its other Subsidiaries;
(l) Liens on Property (including any natural gas, oil or other
mineral Property) to secure all or a part of the cost of exploration, drilling
or development thereof or to secure Indebtedness incurred to provide funds for
any such purpose;
(m) Liens and security interests created, incurred or assumed
in connection with the purchase, lease, financing or refinancing of pollution
control facilities (and which Liens and security interest are limited to such
pollution control facilities);
<PAGE> 47
(n) Liens created to secure sales or factoring of accounts
receivable and other receivables; and
(o) Liens created for the sole purpose of extending, renewing
or replacing in whole or in part Indebtedness secured by any lien, mortgage or
security interest referred to in the foregoing clauses (a) through (n);
provided, however, that the principal amount of Indebtedness secured thereby
shall not exceed the principal amount of Indebtedness so secured at the time of
such extension, renewal or replacement and that such extension, renewal or
replacement, as the case may be, shall be limited to all or a part of the
property or indebtedness that secured the lien or mortgage so extended, renewed
or replaced (and any improvements on such property).
8.2. Merger, Consolidation, Purchase or Sale of Assets, Etc
Consolidate with, be acquired by, or merge into or with any
Person, or convey, sell, lease or otherwise dispose of all or any part of its
Property, or enter into any sale-leaseback transaction, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the Property
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, including
acquisitions of the Stock of any Person, or permit any of its Subsidiaries so to
do, except:
(a) Sales or other dispositions of inventory in the ordinary
course of business;
(b) Sales of accounts receivables and other receivables;
(c) Asset Sales, provided that no Default or Event of Default
shall exist immediately before or after giving effect thereto and the amount of
such Asset Sale, when added to the total amount of all Asset Sales made by the
Borrower during the immediately preceding twelve month period, shall not exceed
10% or more of Total Assets as of the first day of such twelve month period;
(d) any Subsidiary of the Borrower may merge or consolidate
with or into, or acquire control of, or acquire all or any portion of the assets
of (i) any Person, provided that the total consideration to be paid to or for
the account of the seller or acquired Person in connection therewith, when added
to the total consideration paid by the Borrower or any Subsidiary in connection
with all other mergers, consolidations and acquisitions, and all loans, advances
and other arrangements permitted under Section 8.3, during the period from the
Effective Date through the Maturity Date, shall not exceed the greater of (1)
$110,000,000 or (2) 10% of Total Assets as of the most recently completed fiscal
quarter or (ii) any other Subsidiary of the Borrower, and
(e) mergers, consolidations or acquisitions of or by the
Borrower with, into or of another Person as to which the following conditions
have been satisfied:
(i) immediately before or after giving effect thereto, no
Default or Event of Default shall exist,
(ii) immediately before or after giving effect thereto,
all of the representations and warranties shall be true and correct except as
the context thereof otherwise requires and except for those representations and
warranties which by their terms or by necessary
<PAGE> 48
implication are expressly limited to a state of facts existing at a time prior
to such merger, consolidation or acquisition, and except such matters relating
thereto as are identified in a writing to the Agent and the Lenders and are
satisfactory to the Agent and the Lenders,
(iii) the Borrower shall be the surviving corporation
thereof or such surviving corporation shall be incorporated in a State of the
United States with substantially all of its assets and business located and
conducted in the United States and shall have expressly assumed the obligations
of the Borrower under the Loan Documents pursuant to a writing in form and
substance satisfactory to the Agent,
(iv) the total consideration to be paid by the Borrower
to or for the account of the seller or acquired Person in connection therewith,
when added to the total consideration paid by the Borrower and its Subsidiaries
to or for the account of the seller or acquired Person in connection with all
mergers, consolidations and acquisitions, and all loans, advances and other
arrangements permitted under Section 8.3, during the period from the Effective
Date through the Maturity Date, shall not exceed the greater of (1) $110,000,000
or (2) 10% of Total Assets as of the most recently completed fiscal quarter, and
(v) the Agent and the Lenders shall have received a
certificate signed by a duly authorized officer of the Borrower identifying the
Person to be merged with or into, consolidated with, or acquired by, the
Borrower, and certifying as to each of the matters set forth in clauses (e)(i)
through (iv) above.
8.3. Loans, Advances, Etc
At any time, make any loan or advance to, or enter into any arrangement for
the purpose of providing funds or credit to, any Person, or permit any of its
Subsidiaries so to do, other than loans, advances or arrangements the total
amount of which, when added to the total consideration paid by the Borrower and
its Subsidiaries in connection with all mergers, consolidations and acquisitions
of or by the Borrower and its Subsidiaries during the period from the Effective
Date through the Maturity Date, shall not exceed the greater of (i) $110,000,000
or (ii) 10% of Total Assets as of the most recently completed fiscal quarter.
8.4. Amendments, etc. of Certain Agreements
Enter into or agree to any amendment, modification or waiver
of any term or condition of the CLECO Mortgage or the Employee Stock Ownership
Plan, which amendment, modification or waiver could, in the reasonable opinion
of the Agent, adversely affect the interests of the Lenders under the Loan
Documents.
9. DEFAULT
9.1. Events of Default
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal or interest on any Note, or any other fees or expenses payable under
any Loan Document, on the date when due and payable; or
<PAGE> 49
(b) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.15; or
(c) The failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 7.3, 7.11 or Section 8; or
(d) The failure of the Borrower to observe or perform any
other term, covenant, or agreement contained in any Loan Document and such
failure or event shall have continued unremedied for a period of 30 days after
the Borrower shall have obtained knowledge thereof; or
(e) Any representation or warranty made in any Loan Document
or deemed made by the Borrower pursuant to Section 6.1 or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(f) Any obligation of the Borrower under the Long Term Credit
Agreement and any other obligation of the Borrower (other than its obligations
under the Notes) or any of its Subsidiaries, whether as principal, guarantor,
surety or other obligor, for the payment of any Indebtedness or operating leases
in excess of $20,000,000 in the aggregate: shall become or shall be declared to
be due and payable prior to the expressed maturity thereof, or shall not be paid
when due or within any grace period (as such grace period may be extended from
time to time pursuant to and in accordance with the documentation evidencing
such obligation) for the payment thereof, or any holder of any such obligation
shall have the right to declare such obligation due and payable prior to the
expressed maturity thereof; or
(g) The Borrower or any of its Subsidiaries shall suspend or
discontinue its business, make an assignment for the benefit of creditors,
generally not pay its debts as such debts become due, admit in writing its
inability to pay its debts as they become due, file a voluntary petition in
bankruptcy, become insolvent (however such insolvency shall be evidenced), file
any petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction,
petition or apply to any tribunal for any receiver, custodian or any trustee for
any substantial part of its Property, be the subject of any such proceeding
filed against it which remains undismissed for a period of 45 days, file any
answer admitting or not contesting the material allegations of any such petition
filed against it or any order, judgment or decree approving such petition in any
such proceeding, seek, approve, consent to, or acquiesce in any such proceeding,
or in the appointment of any trustee, receiver, sequestrator, custodian,
liquidator, or fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver, custodian, liquidator
or fiscal agent and such order remains in effect for 45 days, or take any formal
action for the purpose of effecting any of the foregoing or looking to the
liquidation or dissolution of the Borrower or such Subsidiary; or
<PAGE> 50
(h) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction adjudging the Borrower or any of its Subsidiaries bankrupt or
insolvent, approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of the
Borrower or any of its Subsidiaries under the United States bankruptcy laws or
any other applicable Federal or state law, appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Borrower or any of its Subsidiaries or of any substantial part of the Property
thereof, or ordering the winding up or liquidation of the affairs of the
Borrower or any of its Subsidiaries, and any such decree or order continues
unstayed and in effect for a period of 45 days; or
(i) Judgments or decrees against the Borrower or any of its
Subsidiaries aggregating in excess of $20,000,000 shall remain unpaid, unstayed
on appeal, undischarged, unbonded or undismissed for a period of at least 30
days; or
(j) Any Loan Document shall cease, for any reason, to be in
full force and effect or the Borrower shall so assert in writing or shall
disavow any of its obligations thereunder; or
(k) (i) any Termination Event shall occur; (ii) any
Accumulated Funding Deficiency, whether waived, shall exist with respect to any
Pension Plan; (iii) any Person shall engage in any Prohibited Transaction
involving any Employee Benefit Plan; (iv) the Borrower, any of its Subsidiaries
or any ERISA Affiliate shall fail to pay when due an amount which is payable by
it to the PBGC or to a Pension Plan under Title IV of ERISA; or (v) any other
event or condition shall occur or exist with respect to an Employee Benefit
Plan; provided that the occurrence of any of the foregoing actions or events set
forth in clauses (i) through (v), individually or collectively, could reasonably
be expected to have a Material Adverse Effect; or
(l) Any authorization or approval or other action by any
Governmental Authority required for the execution, delivery or performance of
this Agreement or the Notes shall be terminated, revoked or rescinded or shall
otherwise no longer be in full force and effect.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (g) or (h) above, the Aggregate Commitments shall
immediately and automatically terminate and the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents shall
immediately become due and payable and the Agent may, and, upon the direction of
the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the consent
of the Required Lenders, the Agent may, and upon the direction of the Required
Lenders shall, by notice to the Borrower, declare the Aggregate Commitments to
be terminated forthwith, whereupon the Aggregate Commitments shall immediately
terminate, and (ii) with the consent of the Required Lenders, the Agent may, and
upon the direction of the Required Lenders shall, by notice of default to the
Borrower, declare the Loans, all accrued and unpaid interest thereon, and all
other amounts owing under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable, and the Agent may,
and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided pursuant to the Loan Documents. Except as
otherwise provided in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived. The Borrower hereby further
expressly waives and covenants not to assert any appraisement, valuation, stay,
extension, redemption or similar laws, now or at any time hereafter in force
which might delay, prevent or otherwise impede the performance or enforcement of
any Loan Document.
<PAGE> 51
In the event that the Aggregate Commitments shall have been
terminated or the Notes shall have been declared due and payable pursuant to the
provisions of this Section, any funds received by the Agent and the Lenders from
or on behalf of the Borrower shall be applied by the Agent and the Lenders in
liquidation of the Loans and the obligations of the Borrower under the Loan
Documents in the following manner and order: (i) first, to the payment of
interest on, and then the principal portion of, any Loans which the Agent may
have advanced on behalf of any Lender for which the Agent has not then been
reimbursed by such Lender or the Borrower; (ii) second, to the payment of any
fees or expenses due the Agent from the Borrower hereunder, (iii) third, to
reimburse the Agent and the Lenders for any expenses (to the extent not paid
pursuant to clause (ii) above) due from the Borrower pursuant to the provisions
of Section 11.5; (iv) fourth, to the payment of accrued Facility Fees and all
other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Notes); (v) fifth, to the payment of interest due
on the Notes; (vi) sixth, to the payment of principal outstanding on the Notes,
pro rata according to each Lender's aggregate outstanding Loans; and (vii)
seventh, to the payment of any other amounts owing to the Agent and the Lenders
under any Loan Document.
10. THE AGENT
10.1. Appointment
Each Lender hereby irrevocably designates and appoints BNY as
the Agent of such Lender under the Loan Documents and each such Lender hereby
irrevocably authorizes BNY, as the Agent for such Lender, to take such action on
its behalf under the provisions of the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of the Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
any Loan Document, the Agent shall not have any duties or responsibilities other
than those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Agent.
10.2. Delegation of Duties
The Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
rely upon the advice of counsel concerning all matters pertaining to such
duties.
10.3. Exculpatory Provisions
Neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except the Agent for its own gross
negligence or willful misconduct), or responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by the
Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to
<PAGE> 52
or provided for in, or received by the Agent under or in connection with, the
Loan Documents or for the value, validity, effectiveness, genuineness,
perfection, enforceability or sufficiency of any of the Loan Documents or for
any failure of the Borrower or any other Person to perform its obligations
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect the
properties, books or records of the Borrower. The Agent shall not be under any
liability or responsibility whatsoever, as Agent, to the Borrower or any other
Person as a consequence of any failure or delay in performance, or any breach,
by any Lender of any of its obligations under any of the Loan Documents.
10.4. Reliance by Agent
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, fax, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent may treat each Lender, or the Person
designated in the last notice filed with it under this Section, as the holder of
all of the interests of such Lender in its Loans and in its Notes until written
notice of transfer, signed by such Lender (or the Person designated in the last
notice filed with the Agent) and by the Person designated in such written notice
of transfer, in form and substance satisfactory to the Agent, shall have been
filed with the Agent. The Agent shall not be under any duty to examine or pass
upon the validity, effectiveness, enforceability, perfection or genuineness of
the Loan Documents or any instrument, document or communication furnished
pursuant thereto or in connection therewith, and the Agent shall be entitled to
assume that the same are valid, effective and genuine, have been signed or sent
by the proper parties and are what they purport to be. The Agent shall be fully
justified in failing or refusing to take any action under the Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default
The Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from a Lender or the Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Lenders and the Borrower. The Agent shall take such action with respect to
such Default or Event of Default as shall be directed by the Required Lenders,
provided, however, that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem to be in the best interests of the Lenders.
<PAGE> 53
10.6. Non-Reliance on Agent and Other Lenders
Each Lender expressly acknowledges that neither the Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Agent hereinafter, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, evaluations and decisions in taking or
not taking action under any Loan Document, and to make such investigation as it
deems necessary to inform itself as to the business, operations, Property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7. Indemnification
Each Lender agrees to indemnify and reimburse the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according to
the outstanding principal balance of the Revolving Credit Loans (or at any time
when no Revolving Credit Loans are outstanding, according to its Commitment
Percentage), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including, without limitation, any amounts paid to the
Lenders (through the Agent) by the Borrower pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Agent under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting solely from the finally
adjudicated gross negligence or willful misconduct of the Agent. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its pro rata share of any unpaid fees owing to the Agent, and
any costs and expenses (including, without limitation, reasonable fees and
expenses of counsel) payable by the Borrower under Section 11.5, to the extent
that the Agent has not been paid such fees or has not be reimbursed for such
costs and expenses by the Borrower. The failure of any Lender to reimburse the
Agent promptly upon demand for its pro rata share of any amount required to be
by the Lenders to the Agent as provided in this Section shall not relieve any
other Lender of its obligation hereunder to reimburse the Agent for its pro rata
share of such amount, but no Lender shall be responsible for the failure of
other Lender to reimburse the Agent for such other Lender's pro rata share of
such amount. The agreements in this Section shall survive the payment of all
amounts payable under the Loan Documents.
<PAGE> 54
10.8. Agent in Its Individual Capacity
BNY and its respective affiliates may make loans to, accept
deposits from, issue letters of credit for the account of, and generally engage
in any kind of business with, the Borrower as though BNY were not Agent
hereunder. With respect to the Commitment made or renewed by BNY and the Notes
issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall in each case include BNY.
10.9. Successor Agent
If at any time the Agent deems it advisable, in its sole
discretion, it may submit to each of the Lenders a written notice of its
resignation as Agent under the Loan Documents, such resignation to be effective
upon the earlier of the written acceptance of the duties of the Agent under the
Loan Documents by a successor Agent and on the 30th day after the date of such
notice. Upon any such resignation, the Required Lenders shall have the right to
appoint from among the Lenders a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders and accepted such appointment in
writing within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which successor Agent shall be a commercial bank organized
under the laws of the United States of America or any State thereof and having a
combined capital, surplus, and undivided profits of at least $100,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent's rights, powers, privileges and duties as Agent under the Loan Documents
shall be terminated. The Borrower and the Lenders shall execute such documents
as shall be necessary to effect such appointment. After any retiring Agent's
resignation as Agent, the provisions of the Loan Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under the Loan Documents. If at any time there shall not be a duly appointed and
acting Agent, the Borrower agrees to make each payment due under the Loan
Documents directly to the Lenders entitled thereto during such time.
11. OTHER PROVISIONS
11.1. Amendments and Waivers
(a) No failure to exercise and no delay in exercising, on the
part of any Lender, any right, remedy, power or privilege under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law. No waiver of any provision of
any Loan Document or consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be permitted by this Section 11.1,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Lender may have had notice or knowledge of
such Default at the time.
<PAGE> 55
(b) Notwithstanding anything to the contrary contained in any
Loan Document, with the written consent of the Required Lenders, the Agent and
the Borrower may, from time to time, enter into written amendments, supplements
or modifications thereof and, with the consent of the Required Lenders, the
Agent on behalf of the Lenders, may execute and deliver to any such parties a
written instrument waiving or consenting to the departure from, on such terms
and conditions as the Agent may specify in such instrument, any of the
requirements of the Loan Documents or any Default and its consequences;
provided, however, that no such amendment, supplement, modification, waiver or
consent shall:
1. increase the Commitment of any
Lender, without such Lender's consent;
2. unless agreed to by each Lender
affected thereby, reduce the principal amount of any Loan, or reduce
the rate of interest thereon, or reduce any fees or other
obligations payable under the Loan Documents, or extend any date
(including the Maturity Date except as provided in Section 2.18)
fixed for the payment of any principal of or interest on any Loan,
any fees, or any other obligation payable under the Loan Documents;
3. unless agreed to by all of the
Lenders, increase the Aggregate Commitment, change the definition of
"Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify
any rights hereunder or make any determination or grant any consent
hereunder, change Section 3.3 in a manner that would alter the pro
rata sharing of payments required thereby, or consent to any
assignment or delegation by any Loan Party of any of its rights or
obligations under any Loan Document; and
4. unless agreed to by the Agent, amend,
modify or otherwise affect the rights or duties of the Agent under
the Loan Documents.
Any such amendment, supplement, modification or waiver shall
apply equally to each of the Lenders and shall be binding upon the parties to
the applicable Loan Document, the Lenders, the Agent and all future holders of
the Notes. In the case of any waiver, the parties to the applicable Loan
Document, the Lenders and the Agent shall be restored to their former position
and rights hereunder and under the outstanding Notes and other Loan Documents to
the extent provided for in such waiver, and any Default or Event of Default
waived shall not extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon. The Loan Documents may not be amended
orally or by any course of conduct.
11.2. Notices
All notices, requests and demands to or upon the respective
parties to the Loan Documents to be effective shall be in writing and, unless
otherwise expressly provided therein, shall be deemed to have been duly given or
made when delivered by hand, or when deposited in the mail, first-class postage
prepaid, or, in the case of notice by fax, when sent, addressed as follows in
the case of the Borrower or the Agent, at the Domestic Lending Office, in the
case of each Lender, or to such other addresses as to which the Agent may be
hereafter notified by the respective parties thereto or any future holders of
the Notes:
<PAGE> 56
The Borrower:
Cleco Corporation
2030 Donahue Ferry Road
Pineville, LA 71360-5226
Attention: Michael Sawrie
Director of Financing and
Cash Management
Telephone: (318) 484-7589
Fax (318) 484-7697
The Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Kalyani Bose
Telephone: (212) 635-4693
Fax (212) 635-6365 or 6366 or 6367;
with a copy to:
The Bank of New York
Energy Industries Division
One Wall Street
19th Floor
New York, New York 10286
Attention: Steven Kalachman,
Assistant Vice President
Telephone: (212) 635-7881
Fax (212) 635-7923 or 7924;
except that any notice, request or demand by the Borrower to or upon the Agent
or the Lenders pursuant to Sections 2.3, 2.4 or 2.5 shall not be effective until
received. Any party to a Loan Document may rely on signatures of the parties
thereto which are transmitted by fax or other electronic means as fully as if
originally signed.
11.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part
of the Agent or any Lender, any right, remedy, power or privilege under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
<PAGE> 57
11.4. Survival of Representations and Warranties
All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall survive the execution and delivery of
the Loan Documents.
11.5. Payment of Expenses and Taxes
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made to pay or reimburse the Agent
for all its out-of-pocket costs and expenses reasonably incurred in connection
with the development, preparation and execution of, the Loan Documents and any
amendment, supplement or modification thereto (whether or not executed), any
documents prepared in connection therewith and the consummation of the
transactions contemplated thereby, including, without limitation, the reasonable
fees and disbursements of Special Counsel, to pay or reimburse the Agent and the
Lenders for all of their respective costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel, incurred in connection
with any Default or Event of Default and any enforcement or collection
proceedings resulting therefrom or in connection with the negotiation of any
restructuring or "work-out" (whether consummated or not) of the obligations of
the Borrower under any of the Loan Documents and the enforcement of this
Section, to pay, indemnify, and hold each Lender and the Agent harmless from and
against, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents and any such
other documents, and to pay, indemnify and hold each Lender and the Agent and
each of their respective officers, directors and employees harmless from and
against any and all other liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, reasonable counsel
fees and disbursements) with respect to the enforcement and performance of the
Loan Documents, the use of the proceeds of the Loans and the enforcement and
performance of the provisions of any subordination agreement in favor of the
Agent and the Lenders (all the foregoing, collectively, the "indemnified
liabilities") and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted or not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
the Agent or any Lender arising from the finally adjudicated gross negligence or
willful misconduct of the Agent or such Lender or claims between one indemnified
party and another indemnified party. The agreements in this Section shall
survive the termination of the Aggregate Commitments and the payment of all
amounts payable under the Loan Documents.
11.6. Lending Offices
Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Agent and the Borrower of any such change of office.
Such office shall thereupon become such Lender's Domestic Lending Office or
Eurodollar Lending Office, as the case may be, provided, however, that no such
Lender shall be entitled to receive any greater amount under Sections 2.9, 2.11
and 2.12 as a result of a transfer of any such Loans to a different office of
such Lender than it would be entitled to immediately prior thereto unless such
claim would have arisen even if such transfer had not occurred.
<PAGE> 58
11.7. Assignments and Participations
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future holders of the Notes
and their respective successors and assigns, except that the Borrower may not
assign, delegate or transfer any of its rights or obligations under the Loan
Documents without the prior written consent of the Agent and each Lender.
(b) Each Lender shall have the right at any time, with the
prior written consent of the Borrower and the Agent (which consents shall not be
unreasonably withheld or delayed and, with respect to the Borrower, shall not be
required upon the occurrence and during the continuance of an Event of Default),
to sell, assign, transfer or negotiate all or any part of such Lender's rights
under the Loan Documents to any Eligible Assignee, provided that:
(i) each such assignment shall be of a constant, and not
a varying, percentage of all of the assignor Lender's
rights and obligations under the Loan Documents; and
(ii) the assignor and such assignee shall deliver to the
Agent three copies of an Assignment and Acceptance
Agreement executed by each of them, along with an
assignment fee in the sum of $3,500 for the account of
the Agent.
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement together with the assignment fee therefor and the consents
required to such assignment, if required, the Agent shall record the same and
execute not less than two copies of such Assignment and Acceptance Agreement in
the appropriate place, deliver one such copy to the assignor and one such copy
to the assignee, and deliver one photocopy thereof, as executed, to the
Borrower. From and after the effective date specified in, and as defined in,
such Assignment and Acceptance Agreement, the assignee thereunder shall,
unless already a Lender, become a party hereto and shall, for all purposes of
the Loan Documents, be deemed a "Lender" and, to the extent provided in such
Assignment and Acceptance Agreement, the assignor Lender thereunder shall be
released from its obligations under this Agreement and the other Loan
Documents. The Borrower agrees that, if requested, in connection with each such
assignment, it shall at its own cost and expense execute and deliver to the
Agent or such assignee a Note, each payable to the order of such assignee and
dated the Effective Date. The Agent shall be entitled to rely upon the
representations and warranties made by the assignee under each Assignment and
Acceptance Agreement.
(c) Each Lender may grant participations in all or any part of
its Loans, its Notes and its Commitment to one or more banks, insurance
companies, financial institutions, pension funds or mutual funds, provided that
such Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties to the Loan
Documents for the performance of such obligations, the Borrower, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan Documents,
and the voting rights of any holder of any participation shall be limited to
decisions that only do any of the following: subject the participant to any
additional obligation, reduce the principal of, or interest on the Notes or any
fees or other amounts payable hereunder or postpone any date fixed for the
payment of principal of, or interest on the Notes or any fees or other amounts
payable hereunder (except as provided in Section 2.18).
<PAGE> 59
The Borrower acknowledges and agrees that any such participant shall for
purposes of Sections 2.9, 2.11, 2.12 and 2.15 be deemed to be a "Lender";
provided, however, the Borrower shall not, at any time, be obligated to pay any
participant in any interest of any Lender hereunder any sum in excess of the sum
which the Borrower would have been obligated to pay to such Lender in respect of
such interest had such Lender not sold such participation.
(d) If any assignment is made pursuant to subsection (b) above
or any participation is granted pursuant to subsection (c) above, shall be made
to any Person that is organized under the laws of any jurisdiction other than
the United States, the assignee or participant, as the case may be, shall
furnish such certificates, documents or other evidence to the Borrower and the
Agent, in the case of clause (i) and to the Borrower and the Lender which sold
such participation in the case of clause (ii), as shall be required by Section
2.10(c).
(e) No Lender shall, as between and among the Borrower, the
Agent and such Lender, be relieved of any of its obligations under the Loan
Documents as a result of any sale, assignment, transfer or negotiation of, or
granting of participations in, all or any part of its Loans, its Commitment or
its Notes, except that a Lender shall be relieved of its obligations to the
extent of any such sale, assignment, transfer, or negotiation of all or any part
of its Loans, its Commitment or its Notes pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8. Counterparts
Each Loan Document (other than the Notes) may be executed by
one or more of the parties thereto on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the party
to be charged. A counterpart of any Loan Document or to any document evidencing,
and of any an amendment, modification, consent or waiver to or of any Loan
Document transmitted by fax shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents signed by all the parties
thereto shall be deposited with each of the Borrower and the Agent. Any party to
a Loan Document may rely upon the signatures of any other party thereto which
are transmitted by fax or other electronic means to the same extent as if
originally signed.
11.9. Adjustments; Set-off
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9.1 (h) or (i), or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender in respect of such other
Lender's Loans, or interest thereon (other than payments of principal or
interest in respect of Competitive Bid Loans when no Default or Event of Default
exists), such Benefited Lender shall purchase for cash from each of the other
Lenders such portion of each such other Lender's Loans, and shall provide each
of such other Lenders with the
<PAGE> 60
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders, provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Loans may exercise all rights of payment (including, without
limitation, rights of set-off, to the extent not prohibited by law) with respect
to such portion as fully as if such Lender were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default, under
Section 9.1(a), each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
not prohibited by applicable law, to set-off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to such Lender, any amount owing
from such Lender to the Borrower, at, or at any time after, the happening of any
of the above-mentioned events. To the extent not prohibited by applicable law,
the aforesaid right of set-off may be exercised by such Lender against the
Borrower or against any trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor of the Borrower, or against anyone else claiming through or
against the Borrower or such trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Borrower and the Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
<PAGE> 61
11.10. Construction
The Borrower represents that it has been represented by
counsel in connection with the Loan Documents and the transactions contemplated
thereby and that the principle that agreements are to be construed against the
draftsman shall be inapplicable.
11.11. Indemnity
The Borrower agrees to indemnify and hold harmless the Agent
and each Lender and their respective affiliates, directors, officers, employees,
attorneys and agents (each an "Indemnified Person") from and against any loss,
cost, liability, damage or expense (including the reasonable fees and
disbursements of counsel of such Indemnified Person, including all local counsel
hired by any such counsel) incurred by such Indemnified Person in investigating,
preparing for, defending against, or providing evidence, producing documents or
taking any other action in respect of, any commenced or threatened litigation,
administrative proceeding or investigation under any federal securities law or
any other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement or alleged untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority by or
on behalf of the Borrower; (ii) any omission or alleged omission to state any
material fact required to be stated in such document or schedule, or necessary
to make the statements made therein, in light of the circumstances under which
made, not misleading; (iii) any acts, practices or omissions or alleged acts,
practices or omissions of the Borrower or its agents relating to the use of the
proceeds of any or all borrowings made by the Borrower which are alleged to be
in violation of Section 2.15, or in violation of any federal securities law or
of any other statute, regulation or other law of any jurisdiction applicable
thereto; or (iv) any acquisition or proposed acquisition by the Borrower of all
or a portion of the Stock, or all or a portion of the assets, of any Person
whether such Indemnified Person is a party thereto. The indemnity set forth
herein shall be in addition to any other obligations or liabilities of the
Borrower to each Indemnified Person under the Loan Documents or at common law or
otherwise, and shall survive any termination of the Loan Documents, the
expiration of the Aggregate Commitments and the payment of all indebtedness of
the Borrower under the Loan Documents, provided that the Borrower shall have no
obligation under this Section to an Indemnified Person with respect to any of
the foregoing to the extent found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or wilful
misconduct of such Indemnified Person or arising solely from claims between one
such Indemnified Person and another such Indemnified Person.
11.12. Governing Law
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
11.13. Headings Descriptive
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
<PAGE> 62
11.14. Severability
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.15. Integration
All exhibits to a Loan Document shall be deemed to be a part
thereof. Except for agreements between the Agent and the Borrower with respect
to certain fees, the Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Borrower, the Agent and the Lenders with respect to the subject matter
thereof.
11.16. Consent to Jurisdiction
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted or not
prohibited by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. The Borrower hereby agrees that
a final judgment in any such suit, action or proceeding brought in such a court,
after all appropriate appeals, shall be conclusive and binding upon it.
11.17. Service of Process
The Borrower hereby further irrevocably consents to the
service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of the Borrower set forth in Section 11.2. The Borrower hereby
agrees that any such service (i) shall be deemed in every respect effective
service of process upon it in any such suit, action, or proceeding, and (ii)
shall to the fullest extent enforceable by law, be taken and held to be valid
personal service upon and personal delivery to it.
11.18. No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Agent or any Lender
to serve process in any manner permitted by law or limit the right of the Agent
or any Lender to bring proceedings against the Borrower in the courts of any
jurisdiction or jurisdictions in which the Borrower may be served.
<PAGE> 63
11.19. WAIVER OF TRIAL BY JURY
THE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE AGENT, OR THE LENDERS, OR
COUNSEL TO THE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
<PAGE> 1
EXHIBIT 11
CLECO CORPORATION
COMPUTATION OF NET INCOME PER COMMON SHARE
FOR THE THREE MONTHS ENDED SEPTEMBER 30,
(Unaudited)
(In thousands, except share
and per share amounts)
<TABLE>
<CAPTION>
1998 1997
-------------- --------------
<S> <C> <C>
BASIC
Net income applicable to common stock $ 22,320 $ 22,360
============== ==============
Weighted average number of shares of common
stock outstanding during the period 22,484,269 22,460,931
============== ==============
Basic net income per common share $ 0.99 $ 1.00
============== ==============
DILUTED
Net income applicable to common stock $ 22,320 $ 22,360
Adjustments to net income related to
Employee Stock Ownership Plan (ESOP)
under the "if-converted" method:
Add loss of deduction from net income
for actual dividends paid on convertible
preferred stock, net of tax 359 364
Deduct additional cash contribution
required which is equal to dividends
on preferred stock less dividends
paid at the common dividend rate, net
of tax (15) (25)
Add tax benefit associated with dividends
paid on allocated common shares 91 77
-------------- --------------
Adjusted income applicable to common stock $ 22,755 $ 22,776
============== ==============
Weighted average number of shares of common
stock outstanding during the period 22,484,269 22,460,931
Number of equivalent common shares
attributable to ESOP 1,377,265 1,396,778
Common stock under stock option grants 4,963 6,768
-------------- --------------
Average shares 23,866,497 23,864,477
============== ==============
Diluted net income per common share $ 0.95 $ 0.95
============== ==============
</TABLE>
<PAGE> 2
CLECO CORPORATION
COMPUTATION OF NET INCOME PER COMMON SHARE
FOR THE NINE MONTHS ENDED SEPTEMBER 30,
(Unaudited)
<TABLE>
<CAPTION>
(In thousands, except share
and per share amounts)
1998 1997
------------ ------------
<S> <C> <C>
BASIC
Net income applicable to common stock $ 43,280 $ 40,106
============ ============
Weighted average number of shares of common
stock outstanding during the period 22,478,499 22,459,128
============ ============
Basic net income per common share $ 1.93 $ 1.79
============ ============
DILUTED
Net income applicable to common stock $ 43,280 $ 40,106
Adjustments to net income related to Employee
Stock Ownership Plan (ESOP) under the
"if-converted" method:
Add loss of deduction from net income for actual
dividends paid on convertible preferred stock,
net of tax 1,077 1,092
Deduct additional cash contribution
required which is equal to dividends
on preferred stock less dividends
paid at the common dividend rate, net
of tax (54) (82)
Add tax benefit associated with dividends
paid on allocated common shares 262 217
------------ ------------
Adjusted income applicable to common stock $ 44,565 $ 41,333
============ ============
Weighted average number of shares of common
stock outstanding during the period 22,478,499 22,459,128
Number of equivalent common shares
attributable to ESOP 1,381,675 1,398,141
Common stock under stock option grants 6,085 6,912
------------ ------------
Average shares 23,866,259 23,864,181
============ ============
Diluted net income per common share $ 1.87 $ 1.73
============ ============
</TABLE>
<PAGE> 1
EXHIBIT 12
CLECO CORPORATION
COMPUTATION OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
For the twelve months ended September 30, 1998
(Unaudited)
(In thousands,
except ratios)
--------------
Earnings $ 55,706
Income taxes 29,653
--------
Earnings from continuing operations before income taxes $ 85,359
--------
Fixed charges:
Interest, long-term debt $ 23,665
Interest, other (including interest on short-term debt) 3,678
Amortization of debt expense, premium, net 1,251
Portion of rentals representative of an interest factor 513
--------
Total fixed charges $ 29,107
--------
Earnings from continuing operations before
income taxes and fixed charges $114,466
========
Ratio of earnings to fixed charges 3.93x
========
Fixed charges from above $ 29,107
Preferred stock dividends* 2,845
--------
Total fixed charges and preferred stock dividends $ 31,952
========
Ratio of earnings to combined fixed charges and
preferred stock dividends 3.58x
========
* Preferred stock dividends multiplied by the ratio of pretax
income to net income.
<PAGE> 1
EXHIBIT 15
November 13, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cleco Corporation on Form S-8 (Registration Nos. 2-79671,
33-10169, 33-38362 and 33-44663) and Form S-3 (Nos. 33-24895,
33-62950 and 333-02895)
We are aware that our report dated October 26, 1998 on our review of the interim
financial information of Cleco Corporation as of September 30, 1998 and for the
three-month and nine-month periods ended September 30, 1998 and 1997 included in
this Form 10-Q is incorporated by reference in the above mentioned registration
statements. Pursuant to Rule 436(c) under the Securities Act of 1933, this
report should not be considered a part of the registration statements prepared
or certified by us within the meaning of Sections 7 and 11 of that Act.
PricewaterhouseCoopers LLP
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from the
Company's financial statements and is qualified in its entirety by reference to
such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,040,378
<OTHER-PROPERTY-AND-INVEST> 23,980
<TOTAL-CURRENT-ASSETS> 119,462
<TOTAL-DEFERRED-CHARGES> 233,569
<OTHER-ASSETS> 8,169
<TOTAL-ASSETS> 1,425,558
<COMMON> 45,536
<CAPITAL-SURPLUS-PAID-IN> 108,111
<RETAINED-EARNINGS> 271,741
<TOTAL-COMMON-STOCKHOLDERS-EQ> 425,388
5,990
12,535
<LONG-TERM-DEBT-NET> 134,107
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 235,000
<COMMERCIAL-PAPER-OBLIGATIONS> 52,750
<LONG-TERM-DEBT-CURRENT-PORT> 10,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 549,788
<TOT-CAPITALIZATION-AND-LIAB> 1,425,558
<GROSS-OPERATING-REVENUE> 398,060
<INCOME-TAX-EXPENSE> 23,988
<OTHER-OPERATING-EXPENSES> 310,394
<TOTAL-OPERATING-EXPENSES> 334,382
<OPERATING-INCOME-LOSS> 63,678
<OTHER-INCOME-NET> 2,054
<INCOME-BEFORE-INTEREST-EXPEN> 65,732
<TOTAL-INTEREST-EXPENSE> 20,861
<NET-INCOME> 44,871
1,591
<EARNINGS-AVAILABLE-FOR-COMM> 43,280
<COMMON-STOCK-DIVIDENDS> 27,087
<TOTAL-INTEREST-ON-BONDS> 6,761
<CASH-FLOW-OPERATIONS> 72,388
<EPS-PRIMARY> 1.93
<EPS-DILUTED> 1.87
</TABLE>
