EXHIBIT 4.2.1
DECLARATION OF TRUST, dated as of February 13, 2001 among Cleco
Corporation, a Louisiana corporation, as Sponsor (the "Sponsor"), and Bank One
Trust Company, N.A., as trustee (the "Property Trustee"), Bank One Delaware,
Inc., as trustee (the "Delaware Trustee"), and Thomas J. Howlin, as trustee (the
"Regular Trustee") (the Property Trustee, the Delaware Trustee and the Regular
Trustee, collectively the "Trustees"). The Sponsor and the Trustees hereby agree
as follows:
1. The Delaware business trust created hereby shall be known as "Cleco
Trust I" (the "Trust"), in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount from
the Sponsor, which amount shall constitute the initial trust estate. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
(S) 3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in the form attached hereto in accordance with the
provisions of the Business Trust Act. The Trust is hereby established by the
Sponsor and the Trustees for the purposes of (i) issuing preferred securities
representing undivided beneficial interests in the assets of the Trust
("Preferred Securities") in exchange for cash and investing the proceeds thereof
in junior subordinated debt securities of the Sponsor, (ii) issuing and selling
common securities representing an undivided beneficial interest in the assets of
the Trust ("Common Securities") to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debt securities
of the Sponsor and (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and substantially in the
form included as an exhibit to the Securities Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
Amended and Restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized (i) to
prepare and file with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) a Registration Statement
on Form S-3 or on such other form or forms as may be appropriate, including
without limitation any registration statement of the type contemplated by Rule
462(b) of the Securities Act of 1933, as amended (the "Securities Act") (any
such registration statement, whether on Form S-3, another form or under Rule
462(b) being referred to herein as the "Securities Act Registration Statement"),
including any pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of the
Preferred Securities and certain other securities of the Sponsor
and (b) if the Sponsor shall deem it desirable, a Registration Statement on Form
8-A (the "Exchange Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities under Section 12 of the Securities Exchange Act of 1934, as amended;
(ii) if the Sponsor shall deem it desirable, to prepare and file with New York
Stock Exchange, Inc. or any other automated quotation system, exchange or over-
the-counter market (collectively, the "Exchanges") and execute on behalf of the
Trust a listing application or applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any Exchange;
(iii) to prepare and file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as the Sponsor, on behalf of
the Trust, may deem necessary or desirable to register the Preferred Securities
under the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; (iv) to negotiate the
terms of and execute on behalf of the Trust an underwriting or other purchase
agreement among the Trust, the Sponsor and any underwriter(s), dealer(s) or
agent(s) relating to the Preferred Securities, as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; and (v) to execute and deliver on behalf
of the Trust letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities. In the event that any filing
referred to in clauses (i)-(iii) above is required by the rules and regulations
of the Commission, any Exchange, the National Association of Securities Dealers,
Inc. or state securities or blue sky laws, to be executed on behalf of the Trust
by a Trustee, any natural person appointed pursuant to Section 6 hereof, in his
or her capacity as trustee of the Trust, and the Sponsor are hereby authorized
to join in any such filing and to execute on behalf of the Trust any and all of
the foregoing.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor that may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than three (3); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity that
has its principal place of business in the State of Delaware and meets other
requirements imposed by applicable law. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. Any Trustee
may resign upon thirty days' prior notice to the Sponsor.
7. The Trust may be dissolved and terminated at the election of the
Sponsor.
8. The Delaware Trustee, in its capacity as trustee, shall not have
the powers or duties of the Trustee set forth herein (except as may be required
under the Business Trust Act) and shall be a Trustee hereunder for the sole and
limited purpose of fulfilling the requirements of (S)3807(a) of the Business
Trust Act.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
2
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
CLECO CORPORATION,
as Sponsor
By: /s/ THOMAS J. HOWLIN
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Thomas J. Howlin
Senior Vice President--Financial Services
and Chief Financial Officer
BANK ONE TRUST COMPANY, N.A.,
as Property Trustee
By: /s/ SANDRA L. CARUBA
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Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
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Name: Sandra L. Caruba
Title: Vice President
THOMAS J. HOWLIN,
as Regular Trustee
/s/ THOMAS J. HOWLIN
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