EXHIBIT 4.1
CLECO CORPORATION
AND
BANK ONE, N.A.,
as Trustee
____________________
SUPPLEMENTAL INDENTURE NO. 1
Dated as of May 25, 2000
TO
INDENTURE
Dated as of May 1, 2000
___________________
8 3/4% Senior Notes due 2005
$100,000,000
SUPPLEMENTAL INDENTURE NO. 1, dated as of the 25th day of May, 2000,
between Cleco Corporation, a corporation duly organized and existing under the
laws of the State of Louisiana (the "Company"), and Bank One, N.A., a national
banking association duly organized and existing under the laws of the United
States of America, as trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of May 1, 2000 (the "Indenture"), providing for the issuance
from time to time of one or more series of its Securities.
Pursuant to the terms of the Indenture, the Company desires to provide for
the establishment of a new series of Securities to be designated as the 8 3/4%
Senior Notes due 2005 (the "8 3/4% Senior Notes"), the form and substance of
such 8 3/4% Senior Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this Supplemental Indenture No. 1.
Section 301 of the Indenture provides that various matters with respect to
any series of Securities issued under the Indenture may be established in an
indenture supplemental to the Indenture.
Subparagraph (7) of Section 901 of the Indenture provides that the Company
and the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as permitted by Sections
201 and 301 of the Indenture.
For and in consideration of the premises and the issuance of the series of
Securities provided for herein, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of such series,
as follows:
ARTICLE ONE
Relation to Indenture; Additional Definitions
SECTION 1.01. Relation to Indenture. This Supplemental Indenture No. 1
constitutes an integral part of the Indenture.
SECTION 1.02. Additional Definitions. For all purposes of this
Supplemental Indenture No. 1:
(1) Capitalized terms used herein shall have the meanings specified herein
or in the Indenture, as the case may be;
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(2) "8 3/4% Senior Notes" has the meaning set forth in the Recitals herein
and Section 2.01 hereof;
(3) "Change of Control" means the occurrence of any of the following:
(a) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation) of all or
substantially all the assets of the Company and the
Subsidiaries taken as a whole;
(b) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(c) the consummation of any transaction the result of which is
that any "person" or "group" (within the meaning of Section
13(d)(3) of the Exchange Act) becomes the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Exchange
Act) of more than 50% of the total voting power in the
aggregate of all classes of the Voting Securities of the
Company then outstanding; or
(d) the first day on which a majority of the members of the
board of directors of the Company or any successor Person
under Article Eight of the Indenture (the "Board") are not
Continuing Directors;
(4) "Change of Control Triggering Event" means the occurrence of a Change
of Control and a Ratings Event;
(5) "Change of Control Triggering Event Notice" has the meaning set forth
in Section 4.03 hereof;
(6) "Continuing Director" means, as of any date of determination, any
member of the Board who:
(a) was a member of the Board on May 25, 2000; or
(b) was nominated for election or elected to the Board with the
approval of a majority of the Continuing Directors who were
members of the Board at the time of such nomination or
election;
(7) "H.15 Statistical Release" has the meaning set forth in Section 3.02
hereof;
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(8) "Indebtedness" has the meaning set forth in Section 4.01 hereof;
(9) "Independent Investment Banker" has the meaning set forth in Section
3.01 hereof;
(10) "Interest Payment Date" has the meaning set forth in Section 2.04
hereof;
(11) "Investment Grade" means a rating of Baa3 or higher by Moody's (or its
equivalent under any successor rating categories of Moody's) and a
rating of BBB- or higher by S&P (or its equivalent under any successor
rating categories of S&P);
(12) "Maturity Date" has the meaning set forth in Section 2.03 hereof;
(13) "Moody's" means Moody's Investors Service, Inc., or any successor to
its securities ratings business;
(14) "Ratings Event" means, at any time within 90 days (which period is
extended so long as the rating of the 8 3/4% Senior Notes is under
publicly announced consideration for a possible downgrade by either
Moody's and/or S&P) after the date of public notice of a Change of
Control, or of the intention of the Company or any other Person to
effect a Change of Control, the rating of the 8 3/4% Senior Notes is
decreased below Investment Grade by each of Moody's and S&P;
(15) "Redemption Price" has the meaning set forth in Section 3.01 hereof;
(16) "Regular Record Date" has the meaning set forth in Section 2.04
hereof;
(17) "Remaining Term" has the meaning set forth in Section 3.02 hereof;
(18) "Repurchase Date" has the meaning set forth in Section 4.03 hereof;
(19) "Repurchase Notice" has the meaning set forth in Section 4.03 hereof;
(20) "Repurchase Period" means the period beginning on the date that is 30
days after the date on which the Company mails the Holders of the
8 3/4% Senior Notes the Change of Control Triggering Event Notice and
ending on the date which is 60 days after the date on which the
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Company mails the Holders of the 8 3/4% Senior Notes the Change of
Control Triggering Event Notice;
(21) "Repurchase Price" has the meaning set forth in Section 4.03 hereof;
(22) "Restricted Subsidiary" means any Subsidiary that is a consolidated
operating Subsidiary that accounts for 10% or more of the Company's
consolidated revenues or assets as of the date of the Company's most
recent audited financial statements and any other Subsidiary that the
Board of Directors designates as a Restricted Subsidiary.
(23) "S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor to its securities
ratings business;
(24) "Treasury Yield" has the meaning set forth in Section 3.02 hereof;
(25) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 1; and
(26) The terms "herein," "hereof," "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 1.
ARTICLE TWO
General Terms and Conditions of the 8 3/4% Senior Notes
SECTION 2.01. Title of the Securities. There shall be and is hereby
authorized a series of Securities designated as the "8 3/4% Senior Notes due
2005" (the "8 3/4% Senior Notes").
SECTION 2.02. Limitation on Aggregate Principal Amount. The aggregate
principal amount of the 8 3/4% Senior Notes shall be limited to $100,000,000;
provided, however, that the authorized aggregate principal amount of the 8 3/4%
Senior Notes may be increased above such amount by a Board Resolution to such
effect.
SECTION 2.03. Maturity Date. The 8 3/4% Senior Notes shall mature and the
principal amount thereof shall be due and payable, together with all accrued and
unpaid interest thereon, on June 1, 2005 (the "Maturity Date").
SECTION 2.04. Interest and Interest Rates. Each 8 3/4% Senior Note shall
bear interest at the rate of 8 3/4% per annum, accruing from May 25, 2000 and
interest shall be payable, semi-annually in arrears, on June 1 and December 1 of
each year (each such date,
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an "Interest Payment Date"), commencing on December 1, 2000, to the Person in
whose name such 8 3/4% Senior Note or any Predecessor Security is registered, at
the close of business on the immediately preceding May 15 and November 15,
respectively, whether or not such day is a Business Day (each such date, a
"Regular Record Date"). The amount of interest payable for any period shall be
computed on the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of a 360-
day year of twelve 30-day months and the days elapsed in any partial month. In
the event that any date on which interest is payable on a 8 3/4% Senior Note is
not a Business Day, then a payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that 8 3/4% Senior Note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, except that interest payable on the
Maturity Date shall be paid to the Holder to whom principal is paid. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and shall either (i) be paid
to the Person in whose name such 8 3/4% Senior Note (or one or more Predecessor
Securities) is registered at the close of business on the Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the 8 3/4% Senior Notes not less than 10
days prior to such Special Record Date, or (ii) be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the 8 3/4% Senior Notes may be listed or
traded, and upon such notice as may be required by such exchange or quotation
system, all as more fully provided in the Indenture.
SECTION 2.05. Place of Payment. The Place of Payment where the 8 3/4%
Senior Notes may be presented or surrendered for payment shall be the Corporate
Trust Office of the Trustee.
SECTION 2.06. Place of Registration or Exchange; Notice and Demands With
Respect to the 8 3/4% Senior Notes. The place where the Holders of the 8 3/4%
Senior Notes may present the 8 3/4% Senior Notes for registration of transfer or
exchange and may make notices and demands to or upon the Company with respect to
the 8 3/4% Senior Notes shall be the Corporate Trust Office of the Trustee.
SECTION 2.07. Percentage of Principal Amount. The 8 3/4% Senior Notes
shall be issued at 99.331% of their principal amount, plus accrued interest, if
any, from May 25, 2000.
SECTION 2.08. Global Securities. The 8 3/4% Senior Notes shall be
issuable in whole or in part in the form of one or more Global Securities. Such
Global Securities shall be deposited with, or on behalf of, The Depository Trust
Company, New York, New York,
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which shall act as Depositary with respect to the 8 3/4% Senior Notes. Such
Global Securities shall bear the legends set forth in the form of 8 3/4% Senior
Note contained herein.
SECTION 2.09. Form of Securities. The 8 3/4% Senior Notes shall be
substantially in the form contained in ARTICLE FIVE hereof.
SECTION 2.10. Securities Registrar. The Trustee shall initially serve as
Securities Registrar.
SECTION 2.11. Defeasance and Discharge; Covenant Defeasance. Article
Fourteen of the Indenture, including without limitation, Sections 1402 and 1403
thereof, shall apply to the 8 3/4% Senior Notes.
SECTION 2.12. Sinking Fund Obligations. The Company has no obligation to
redeem or purchase any 8 3/4% Senior Note pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation of future
sinking fund obligations) or upon the happening of a specified event or, except
as provided in Section 4.03 hereof, at the option of a Holder thereof.
ARTICLE THREE
Optional Redemption of the 8 3/4% Senior Notes
SECTION 3.01. Redemption Price. The Company shall have the right to
redeem the 8 3/4% Senior Notes, in whole or in part, at any time at a price
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, to (but excluding) the Redemption Date plus the Make-Whole Premium, if
any (the "Redemption Price"). The amount of the Make-Whole Premium with respect
to any 8 3/4% Senior Note (or portion thereof) to be redeemed will be equal to
the excess, if any, of: (i) the sum of the present values, calculated as of the
Redemption Date, of: (A) each interest payment that, but for such redemption,
would have been payable on the 8 3/4% Senior Note (or portion thereof) being
redeemed on each Interest Payment Date occurring after the Redemption Date
(excluding any accrued and unpaid interest for the period prior to the
Redemption Date); and (B) the principal amount that, but for such redemption,
would have been payable at the Maturity Date of the 8 3/4% Senior Note (or
portion thereof) being redeemed; over (ii) the principal amount of the 8 3/4%
Senior Note (or portion thereof) being redeemed. The present values of interest
and principal payments referred to in clause (i) above will be determined in
accordance with generally accepted principles of financial analysis. Such
present values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have been
payable, but for the redemption, to the Redemption Date at a discount rate equal
to the Treasury Yield (as defined below) plus 20 basis points.
The Make-Whole Premium shall be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company
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fails to make such appointment at least 45 Business Days prior to the Redemption
Date, or if the institution so appointed is unwilling or unable to make such
calculation, such calculation shall be made by BNY Capital Markets, Inc., or, if
such firm is unwilling or unable to make such calculation, by an independent
investment banking institution of national standing appointed by the Trustee (in
any such case, an "Independent Investment Banker").
SECTION 3.02. Make-Whole Premium. For purposes of determining the Make-
Whole Premium, "Treasury Yield" means a rate of interest per annum equal to the
weekly average yield to maturity of United States Treasury Notes that have a
constant maturity that corresponds to the remaining term to maturity of the
8 3/4% Senior Notes, calculated to the nearest 1/12th of a year (the "Remaining
Term"). The Treasury Yield shall be determined as of the third Business Day
immediately preceding the applicable Redemption Date. The weekly average yields
of United States Treasury Notes shall be determined by reference to the most
recent statistical release published by the Federal Reserve Bank of New York and
designated "H.15 (519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets forth a
weekly average yield for United States Treasury Notes having a constant maturity
that is the same as the Remaining Term, then the Treasury Yield shall be equal
to such weekly average yield. In all other cases, the Treasury Yield shall be
calculated by interpolation, on a straight-line basis, between the weekly
average yields on the Unites States Treasury Notes that have a constant maturity
closest to and greater than the Remaining Term and the United States Treasury
Notes that have a constant maturity closest to and less than the Remaining Term
(in each case as set forth in the H.15 Statistical Release). Any weekly average
yields so calculated by interpolation shall be rounded to the nearest 1/100th of
1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly
average yields for United States Treasury Notes are not available in the H.15
Statistical Release or otherwise, then the Treasury Yield shall be calculated by
interpolation of comparable rates selected by the Independent Investment Banker.
SECTION 3.03. Partial Redemption. If the 8 3/4% Senior Notes are only
partially redeemed pursuant to this ARTICLE THREE, the 8 3/4% Senior Notes shall
be redeemed pro rata or by lot or by any other method that the Trustee deems
fair and appropriate.
SECTION 3.04. Notice of Optional Redemption. If the Company elects to
exercise its right to redeem all or some of the 8 3/4% Senior Notes pursuant to
this ARTICLE THREE, the Company or the Trustee shall mail a notice of such
redemption to each Holder of a 8 3/4% Senior Note that is to be redeemed not
less than 30 days and not more than 60 days before the Redemption Date.
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ARTICLE FOUR
Covenants Applicable to the 8 3/4% Senior Notes
SECTION 4.01. Limitation on Liens on Voting Securities of Subsidiaries.
After the date hereof and so long as any of the 8 3/4% Senior Notes remain
Outstanding, the Company shall not, and shall not permit any Subsidiary to,
pledge or grant a security interest in, or permit any pledge, security interest
or other lien upon, any Voting Securities of any Subsidiary owned directly or
indirectly by the Company or any of its Subsidiaries to secure any Indebtedness,
without making effective provision to secure the 8 3/4% Senior Notes equally and
ratably with the other Indebtedness and any other Indebtedness similarly
entitled to be equally and ratably secured. This covenant shall not apply,
however, to:
(1) any pledge, security interest or other encumbrance upon any Voting
Securities of any Subsidiary existing as of May 25, 2000;
(2) the creation or existence of any pledge, security interest or other
encumbrance upon any Voting Securities of any Subsidiary
(a) created at the time of the Company's and/or a Subsidiary's
acquisition (including acquisition through merger or
consolidation) of such Voting Securities or within 24 months
after the Company's and/or a Subsidiary's acquisition of such
Voting Securities to secure all or a portion of the purchase
price for such Voting Securities,
(b) existing on such Voting Securities at the time of the Company's
and/or a Subsidiary's acquisition of such Voting Securities or
(c) created solely to secure obligations incurred to finance the
refurbishment, improvement, installation, development or
construction of any asset of the Company or any Subsidiary, which
obligations are incurred no later than 24 months after completion
of such refurbishment, improvement, installation, development or
construction, or
(3) any extension, renewal or refunding of any pledge, security interest
or other encumbrance described in clauses (1) and (2).
For purposes of this Section 4.01, "Indebtedness" means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by the Company or any Subsidiary for the repayment of
borrowed money. All indebtedness for borrowed money secured by a lien upon
property owned by the Company or any Subsidiary and upon which indebtedness for
borrowed money the Company or such Subsidiary customarily pays interest,
although the Company or such Subsidiary has not assumed or
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become liable for the payment of such indebtedness for borrowed money, shall for
purposes of this Section 4.01 be deemed to be Indebtedness of the Company or
such Subsidiary. All indebtedness for borrowed money of others guaranteed as to
payment of principal by the Company or any Subsidiary or in effect guaranteed by
the Company or such Subsidiary through a contingent agreement to purchase such
indebtedness for borrowed money shall be deemed for purposes of this Section
4.01 to be Indebtedness of the Company or such Subsidiary, but no other
contingent obligation of the Company or any Subsidiary in respect of
indebtedness for borrowed money or other obligations incurred by others shall
for purposes of this Section 4.01 be deemed to be Indebtedness of the Company or
such Subsidiary.
In case the Company or any Subsidiary shall propose to pledge, mortgage,
hypothecate or grant a security interest in any Voting Securities of any
Subsidiary to secure any Indebtedness, other than as permitted by clauses (1),
(2) and (3) in the second preceding paragraph, the Company will prior thereto
give written notice thereof to the Trustee, and the Company will prior to or
simultaneously with such pledge, mortgage, hypothecation or grant of security
interest, by supplemental indenture executed to the Trustee (or to the extent
legally necessary to another trustee or an additional or separate trustee), in a
form reasonably satisfactory to the Trustee, effectively secure (for so long as
such other Indebtedness shall be so secured) all the 8 3/4% Senior Notes equally
and ratably with such Indebtedness and with any other Indebtedness for borrowed
money similarly entitled to be equally and ratably secured.
SECTION 4.02. Limitation on Issuance or Disposition of Voting Securities
of Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, issue, sell, assign, transfer or otherwise dispose of,
directly or indirectly, any Voting Securities of any Restricted Subsidiary
(except to the Company or to one or more Restricted Subsidiaries or for the
purpose of qualifying directors); provided, however, that this covenant shall
not apply if:
(1) all or any part of such Voting Securities are issued, sold, assigned,
transferred or otherwise disposed of in a transaction for
consideration that is at least equal to the fair value of such Voting
Securities, as determined by the Board of Directors acting in good
faith, or
(2) the issuance, sale, assignment, transfer or other disposition is
required to comply with the order of a court or regulatory authority
of competent jurisdiction, other than an order issued at the Company's
or a Restricted Subsidiary's request.
SECTION 4.03. Put Right of Holders Upon a Change of Control Triggering
Event. In the event that there occurs a Change of Control Triggering Event,
each Holder of 8 3/4% Senior Notes shall have the right, at such Holder's
option, to require the Company to purchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's
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8 3/4% Senior Notes during the Repurchase Period, at a price equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, to (but
excluding) the Repurchase Date (the "Repurchase Price"). The Company shall mail
or cause to be mailed notice of the occurrence of a Change of Control Triggering
Event (the "Change of Control Triggering Event Notice") to the Trustee and to
each Holder of the 8 3/4% Senior Notes within 30 days following any Change of
Control Triggering Event. The Change of Control Triggering Event Notice shall
state: (i) that a Change of Control Triggering Event has occurred; (ii) that all
8 3/4% Senior Notes tendered during the Repurchase Period will be accepted for
repurchase; (iii) the date by which the repurchase right must be exercised,
which date is the last day of the Repurchase Period; (iv) the Repurchase Price;
and (v) the procedure which a Holder of 8 3/4% Senior Notes must follow to
exercise the repurchase right. To exercise this repurchase right, a Holder of
8 3/4% Senior Notes must deliver during the Repurchase Period a written notice
to the Company (or an agent designated by the Company for such purpose in the
Change of Control Triggering Event Notice) of the Holder's exercise of such
right (the "Repurchase Notice"), together with the 8 3/4% Senior Note with
respect to which the repurchase right is being exercised, duly endorsed for
transfer to the Company. The Repurchase Notice shall be irrevocable, must be
received by the Company prior to the last day of the Repurchase Period and shall
state the name in which the 8 3/4% Senior Note is registered on the Securities
Register and the principal amount of the 8 3/4% Senior Note to be repurchased.
The Company shall repurchase the 8 3/4% Senior Note with respect to which this
repurchase right is being exercised on the fifth Business Day after receipt of
the Repurchase Notice (the "Repurchase Date"). 8 3/4% Senior Notes repurchased
pursuant to this Section 4.03 shall be delivered to the Trustee and canceled as
provided in Section 310 of the Indenture.
ARTICLE FIVE
Form of 8 3/4% Senior Notes
SECTION 5.01. The 8 3/4% Senior Notes and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF SECURITY)
IF THE NOTE IS TO BE A GLOBAL SECURITY, INSERT - THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
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[For so long as this Global Security is deposited with or on behalf of The
Depository Trust Company, it shall bear the following legend.] Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) to Cleco Corporation or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of The Depository Trust Company) ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
CLECO CORPORATION
8 3/4% SENIOR NOTES DUE 2005
No. _______ $_________
CUSIP No. ____________
Cleco Corporation, a corporation duly organized and existing under the laws
of the State of Louisiana (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________, or registered
assigns, the principal sum of _________ Dollars on June 1, 2005, and to pay
interest thereon from May 25, 2000 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on June 1
and December 1 in each year, commencing December 1, 2000, at the rate of 8 3/4%
per annum until the principal hereof is paid or made available for payment. The
amount of interest payable for any period shall be computed on the basis of
twelve 30-day months and a 360-day year. The amount of interest payable for any
partial period shall be computed on the basis of a 360-day year of twelve 30-day
months and the days elapsed in any partial month. In the event that any date
on which interest is payable on this Security is not a Business Day, then a
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean, when used with
respect to any Place of Payment, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment
are authorized or obligated by law or executive order to close. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 15
or November 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date; provided, however, that interest payable
on the Maturity Date shall be paid to the Holder to whom principal is paid. Any
such interest not punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record
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Date, and shall either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange or automated quotation system on which the Securities of
this series may be listed or traded, and upon such notice as may be required by
such exchange or quotation system, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose, which shall initially be the Corporate Trust Office of the Trustee, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated in writing by the Person
entitled thereto as specified in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_____________________
CLECO CORPORATION
(SEAL) By:
----------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
--------------------
BANK ONE, N.A.,
As Trustee
By:
------------------------------------
Authorized Signatory
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(FORM OF REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued or to be issued in one or more
series under an Indenture, dated as of May 1, 2000 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and Bank One, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $100,000,000;
provided, however, that the authorized aggregate principal amount of the
Securities may be increased above such amount by a Board Resolution to such
effect.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail at any time, as a whole or in part, at the election of
the Company, at a price equal to 100% of the principal amount of this Security
plus accrued and unpaid interest, if any, to (but excluding) the Redemption Date
plus the Make-Whole Premium, if any; all as more fully provided in the
Indenture. The amount of the Make-Whole Premium with respect to this Security
(or portion hereof being redeemed) will be equal to the excess, if any, of: (i)
the sum of the present values, calculated as of the Redemption Date, of: (A)
each interest payment that, but for such redemption, would have been payable on
this Security (or portion hereof being redeemed) on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued and unpaid interest
for the period prior to the Redemption Date); and (B) the principal amount of
this Security (or portion hereof being redeemed) that, but for such redemption,
would have been payable at the Maturity Date; over (ii) the principal amount of
this Security (or portion hereof being redeemed).
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like terms for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
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If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 33% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonably indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in
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writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees. No service charge
shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. The Indenture, as supplemented by this Supplemental
Indenture No. 1, is in all respects adopted, ratified and confirmed. This
Supplemental Indenture No. 1 shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 6.02. The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this Supplemental Indenture No. 1.
SECTION 6.03. This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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SECTION 6.04. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH 8 3/4% SENIOR
NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed as of the day and year first above written.
CLECO CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
BANK ONE, N.A.,
As Trustee
By:
--------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
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