Cleco Power LLC
$250,000,000
6.65% Notes due 2018
Underwriting Agreement
May 28, 2008
New York, New York
BNY Mellon Capital Markets, LLC
One Wall Street
New York, NY 10286
Calyon Securities (USA) Inc.
1301 Avenue of the Americas
New York, NY 10019
KeyBanc Capital Markets Inc.
127 Public Square
Cleveland, OH 44114-1306
Ladies and Gentlemen:
Cleco Power LLC, a Louisiana limited liability company (the “
Company
”), confirms its
agreement with BNY Mellon Capital Markets, LLC (“BNY Mellon”), Calyon Securities (USA) Inc., and
KeyBanc Capital Markets Inc. (collectively, the “
Underwriters
”, which term shall also
include any underwriter substituted as hereinafter provided in Section 8 hereof) as follows:
1.
Offering
. The Company proposes to issue and sell to the Underwriters an aggregate
principal amount of $250,000,000 of its 6.65% Notes due June 15, 2018 (the “
Notes
”). The
Notes are to be issued pursuant to an Indenture dated as of October 1, 1988, as supplemented by the
First Supplemental Indenture dated as of December 1, 2000, the Second Supplemental Indenture dated
as of January 1, 2001, the Third Supplemental Indenture dated as of April 26, 2001, the Fourth
Supplemental Indenture dated as of February 1, 2002, the Fifth Supplemental Indenture dated as of
May 1, 2002, the Sixth Supplemental Indenture dated as of April 28, 2003, the Seventh Supplemental
Indenture dated as of July 6, 2005, the Eighth Supplemental Indenture dated as of November 30, 2005
and the Ninth Supplemental Indenture to be dated as of June 3, 2008 (the “
Ninth Supplemental
Indenture
”) and as it may from time to time hereafter be further amended and supplemented (the
“
Indenture
”), between the Company (successor to Cleco Utility Group Inc., which previously
was known as Central Louisiana Electric Company, Inc.) and The Bank of New York Trust Company, N.A.
(successor to The Bank of New York, successor to Bankers Trust Company), as trustee (the
“
Trustee
”). The Notes are more particularly described in the Prospectus (as hereinafter
defined) and in the Indenture filed as an exhibit to the Registration Statement (as hereinafter
defined).
The Company has filed with the Securities and Exchange Commission (the “
Commission
”) a
registration statement on Form S-3 (No. 333-132832) for the registration of the offer and sale of
certain debt securities, including the Notes, under the Securities Act of 1933, as amended (the
“
1933 Act
”), from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the “
1933 Act Regulations
”). Such registration
statement has been declared effective by the Commission. Promptly after execution and delivery of
this Agreement, the Company will prepare and file a prospectus supplement relating to the Notes,
the terms of the offering thereof and the other matters set forth therein, pursuant to Rule 424(b)
of the 1933 Act Regulations.
The final prospectus and the final prospectus supplement relating to the Notes, in the forms
filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations for use in connection
with the offering of the Notes, are collectively referred to herein as the “
Prospectus
”,
and such registration statement in the form in which it became effective, is hereinafter called the
“
Registration Statement
.”
A “
preliminary prospectus
” shall be deemed to refer to any prospectus that omitted
information to be included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations and was used after such effectiveness and prior to the
initial delivery of the Prospectus to the Underwriters by the Company.
The preliminary prospectus relating to the Notes that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in Section 3(b) hereof) is
hereinafter referred to as the “
Pricing Prospectus
.”
For purposes of this Agreement, all references to the “Registration Statement,” any
“preliminary prospectus,” the “Pricing Prospectus” and the “Prospectus” shall also be deemed to
include all documents incorporated therein by reference pursuant to Item 12 of Form S-3, prior to
the date of this Agreement. Any “issuer free writing prospectus” as defined in Rule 433 of the
1933 Act relating to the Notes is hereinafter referred to as an “
Issuer Free Writing
Prospectus
.” For purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or the Pricing Prospectus or any amendment or supplement to
any of the foregoing shall be deemed to be identical to the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system (“
EDGAR
”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, any preliminary prospectus, the Prospectus or the Pricing Prospectus shall
be deemed to mean and include all such financial statements and schedules and other information
which is incorporated by reference in the Registration Statement, any preliminary prospectus, the
Prospectus or the Pricing Prospectus, as the case may be, prior to the date of this Agreement; and
all references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus, the Prospectus or the Pricing Prospectus shall be deemed to mean and
include the filing of any document under the Securities Exchange Act of 1934, as amended (the
“
1934 Act
”) which is incorporated by reference in the Registration Statement, such
preliminary prospectus, the Prospectus or the Pricing Prospectus, as the case may be, after the
date of this Agreement.
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2.
Sale and Delivery of the Notes; Closing; Offering by the Underwriters
. Subject to
the terms and conditions and based upon the representations and warranties set forth in this
Agreement, the Company agrees to sell to each Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, the principal amount of Notes set forth in Schedule I
to this Agreement opposite the name of such Underwriter (plus any additional amount of Notes that
such Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof),
at a price of 98.993% of the principal amount thereof.
Payment of the purchase price for, and delivery of, the Notes, shall be made at the offices of
Sidley Austin
llp
, 787 Seventh Avenue, New York, New York, 10019 or at such other place as
shall be agreed upon by the Underwriters and the Company, at 9:00 a.m., New York time, on June 3,
2008, or on such later day and time (not later than ten full business days thereafter) as may be
agreed upon in writing by the Underwriters and the Company, such day and time of delivery and
payment being herein called the “
Closing Date
.”
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery of the Notes to the Underwriters through the
facilities of The Depository Trust Company.
One or more global certificates for the Notes shall be in such denominations ($1,000 or
integral multiples thereof) and registered in such names as the Underwriters may request in writing
at least one full business day before the Closing Date. The Notes will be made available for
examination and, if applicable, packaging by the Underwriters in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Date.
The Underwriters agree to make a public offering of the Notes at the public offering price and
upon the terms and conditions set forth in the Prospectus.
3.
Representations and Warranties
. The Company represents and warrants to the
Underwriters as of the date hereof and as of the Closing Date as set forth below in this Section 3.
(a)
Compliance with Registration Requirements
. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration Statement has been
declared effective under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, threatened.
(b)
Applicable Time
. For the purposes of this Agreement, the “
Applicable
Time
” is 4:30 p.m. (Eastern time) on the date of this Agreement. The Pricing Prospectus
as supplemented by the Issuer Free Writing Prospectus listed in paragraph (a) of Schedule II
hereto, taken together (collectively, the “
Pricing Disclosure Package
”) as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free Writing
Prospectus listed in Schedule II does not and will not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken
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together with the Pricing Disclosure Package as of the Applicable Time, did not include
any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall
not apply to statements or omissions made in the Pricing Disclosure Package or any Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by BNY Mellon on behalf of the Underwriters expressly for use
therein.
(c)
Not an “Ineligible Issuer”
. At the earliest time the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the
1933 Act Regulations) of the Notes, the Company was not an “ineligible issuer” as defined in
Rule 405 of the 1933 Act Regulations.
(d)
Due Organization
. The Company has been duly organized and is validly
existing as a limited liability company under the laws of the State of Louisiana and has the
limited liability company power and authority to own its properties and to conduct its
business as described in the Registration Statement.
(e)
Subsidiaries
. The Company has no “significant subsidiaries”, as such term
is defined in Rule 405 of Regulation C of the 1933 Act Regulations. Cleco Katrina/Rita
Hurricane Recovery Funding LLC is the only subsidiary of the Company.
(f)
Registration Statement and Prospectus.
At the time the Registration
Statement became effective, at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and as of the Closing Date, the
Registration Statement complied and will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. The Registration Statement, at
the time it became effective, did not, as of the date hereof, does not, and at the Closing
Date, will not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of its date and at the Closing Date will not contain an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by BNY Mellon on behalf of the Underwriters specifically for use in the Registration
Statement or Prospectus or to those parts of the Registration Statement which constitutes
the Trustee’s Statement of Eligibility and Qualification under the Trust Indenture Act of
1939, as amended (the “
Form T-1
”).
(g)
Incorporated Documents
. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, Pricing Prospectus and Prospectus,
at the time they were or hereafter are filed with the Commission, complied or, when so
filed, will comply, as the case may be, in all material respects with the
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requirements of the 1934 Act and the rules and regulations thereunder (the “
1934
Act Regulations
”), and, when read together with the other information in the Pricing
Prospectus and Prospectus, at the time the Registration Statement became effective, as of
the date of the Pricing Prospectus and the Prospectus and on the Closing Date, did not and
will not, as of such time or dates, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were or are
made, not misleading; provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions made in reliance upon and in
conformity with information furnished to the Company in writing by BNY Mellon on behalf of
the Underwriters expressly for use therein; and no such documents were filed with the
Commission since the Commission’s close of business on the business day immediately prior to
the date of this Agreement and prior to the execution of this Agreement other than the
materials required to be filed by the Company with the Commission pursuant to Rule 433(d) of
the 1933 Act Regulations as set forth in paragraph (a) of Schedule II hereto.
(h)
Accountants
. PricewaterhouseCoopers LLP, who has reported upon certain of
the financial statements incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(i)
Internal Control
. The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that
complies with the requirements of the 1934 Act and has been designed by the Company’s
principal executive officer and principal financial officer, or under their supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses in its internal control
over financial reporting.
(j)
Disclosure Controls and Procedures
. The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the 1934 Act) that
comply with the requirements of the 1934 Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the Company and its subsidiary
is made known to the Company’s principal executive officer and principal financial officer
by others within those entities; and such disclosure controls and procedures are effective.
(k)
Financial Statements
. The consolidated financial statements and
supplemental schedules of the Company set forth in or incorporated by reference in the
Registration Statement, Pricing Prospectus and the Prospectus have been prepared from the
books and records of the Company and its subsidiary in accordance with generally accepted
accounting principles consistently followed throughout the periods indicated (except as may
be noted therein) and present fairly the consolidated financial position of
5
the Company at the dates indicated and the consolidated results of operations, cash
flows and changes in capital of the Company for the periods then ended.
(l)
No Material Changes or Material Transactions
. Since the respective dates
as of which information is given in the Registration Statement, Pricing Prospectus and
Prospectus, except as otherwise stated therein, (i) there has not been any material adverse
change in the condition of the Company and its subsidiary taken as a whole, financial or
otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiary, whether or not arising in the ordinary course of business and (ii) no material
transaction has been entered into by the Company or its subsidiary other than transactions
contemplated by the Registration Statement and transactions in the ordinary course of
business.
(m)
No Defaults
. The Company is not in violation of or in default under any
term or provision of its Articles of Organization or its Operating Agreement, each as
amended, or of any mortgage, indenture, contract, agreement, instrument, judgment, decree or
order applicable to the Company or of any statute, rule or regulation, where such violation
or default would have a material adverse effect upon the properties, assets, business,
prospects or condition (financial or otherwise) of the Company taken as a whole, and no
event or condition has occurred or exists which, with the giving of notice or lapse of time
or both, would result in any such violation or default which would have such an effect.
(n)
Regulatory Approvals
. The Louisiana Public Service Commission (the
“
LPSC
”) has authorized the issuance and sale of the Notes as contemplated by this
Agreement and as described in the Prospectus; and, other than approvals that may be required
under state securities laws, no other approval of any regulatory public body, state or
federal, including approval of the Federal Energy Regulatory Commission (“
FERC
”)
that may be required under the Federal Power Act, as amended (the “
FPA
”), is
necessary in connection with the issuance and sale of the Notes pursuant to this Agreement.
(o)
Legal Proceedings
. Except as described in the Registration Statement, the
Pricing Prospectus and the Prospectus, there is no material litigation or governmental
proceeding involving or, to the knowledge of the Company, threatened against the Company
which might reasonably be expected to result in any material adverse change in the financial
condition, results of operations or business of the Company taken as a whole or which is
required to be disclosed in the Registration Statement, and no notice has been given by any
governmental authority of any proceeding to condemn any material properties of the Company,
and, to the knowledge of the Company, no such proceeding is contemplated.
(p)
Statements Set Forth in the Prospectus
. The statements set forth in the
Pricing Prospectus and Prospectus under the captions “Description of the Notes” and
“Description of the Debt Securities” insofar as such statements purport to summarize certain
provisions of the Indenture and the Notes, fairly summarize such provisions in all material
respects.
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(q)
Good Title
. The Company has good title (either by way of fee simple,
leasehold, easement, right-of-way, grant, servitude, privilege, permit, franchise or
license, as the case may be) to all its properties including, without limitation, the
properties reflected in the most recent consolidated balance sheet of the Company
incorporated by reference in the Registration Statement (except for such items thereof which
have been disposed of since such date and which do not, in the aggregate, constitute a
substantial amount) subject only to (i) the lien of the Indenture of Mortgage, dated as of
July 1, 1950, as supplemented, from the Company to J. P. Morgan Trust Company, National
Association (successor to Bank One Trust Company, N.A., successor to First National Bank of
Commerce), as trustee, securing the Company’s first mortgage bonds, and encumbrances
permitted thereby and (ii) other encumbrances and defects which do not in the aggregate
materially detract from the value of the properties of the Company or impair or interfere
with the use of properties material to the business and operations of the Company taken as a
whole.
(r)
Regulatory Compliance
. The Company is in substantial compliance with all
federal and state environmental statutes, rules and regulations and, to the Company’s
knowledge, has received all required permits necessary for the operation of its business
under such statutes, rules and regulations.
(s)
Authorization and Validity of the Notes
. The Notes have been duly
authorized for issuance and sale pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement and the Indenture against payment
of the consideration therefor specified in this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors’ rights generally or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at
law); the Notes and the Indenture conform in all material respects to all statements
relating thereto contained in the Pricing Disclosure Package and the Prospectus; and the
Notes will be entitled to the benefits provided by the Indenture.
(t)
Authorization of this Agreement
. This Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of the Company;
and the consummation of the transactions contemplated by this Agreement and the performance
of the Company’s obligations hereunder will not result in any material violation of, or be
in material conflict with or constitute a material default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the properties or assets of the
Company that are material to the conduct of its business under the Articles of Organization
or Operating Agreement of the Company, as amended, or any material mortgage, contract,
indenture, agreement or instrument to which the Company is a party or by which it is bound,
or any judgment, order, statute, rule or regulation applicable to it of any court or
governmental body or instrumentality having jurisdiction over it or its properties, and the
Company has full legal right, power and authority to enter into this Agreement and to
perform all of its obligations hereunder.
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(u)
1940 Act
. The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described in the Pricing
Prospectus, will not be an “investment company,” as such term is defined in the Investment
Company Act of 1940, as amended (the “
Investment Company Act
”).
(v)
Authorization of the Indenture
. The Indenture, with the exception of the
Ninth Supplemental Indenture, has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the Trustee, constitutes
a valid and legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors’ rights
generally or by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Ninth Supplemental Indenture has been
duly authorized by the Company and, when executed and delivered by the Company prior to the
time the Notes are issued, assuming due authorization, execution and delivery by the
Trustee, will constitute a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors’ rights generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.
Agreements of the Company
. The Company agrees with the Underwriters that:
(a) At any time when a prospectus relating to the Notes is required to be delivered
under the 1933 Act, the Company will not file or make any amendment to the Registration
Statement or any supplement to the Prospectus (except for periodic or current reports filed
under the 1934 Act) unless the Company has furnished each of the Underwriters a copy of such
prospectus amendment or supplement for its review prior to filing and given the Underwriters
a reasonable opportunity to comment on any such proposed amendment or supplement. Each of
the Underwriters shall make its responses thereto, if any, promptly. The Company will file
promptly all material required to be filed by the Company with the Commission pursuant to
Rule 433(d) of the 1933 Act Regulations. Immediately following the execution of this
Agreement, the Company will prepare a final prospectus supplement, in form approved by the
Underwriters, setting forth the principal amount of the Notes and their terms not otherwise
specified in the base prospectus filed as part of the Registration Statement in the form in
which it has most recently been filed with the Commission on or prior to the date of this
Agreement, the Underwriters’ names, the price at which the Notes are to be purchased by the
Underwriters from the Company, the principal amount of Notes to be purchased by each
Underwriter, the initial offering price, the selling concession and reallowance, if any, and
such other information as the Underwriters and the Company deem appropriate in connection
with the offering of the Notes. The Company will promptly cause any Pricing Prospectus and
the Prospectus to be filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations in the manner and within the time period prescribed by such rule and will
provide evidence satisfactory to the Underwriters of such filing. The Company will promptly
advise the Underwriters (i) at any time when a prospectus
8
relating to the Notes is required to be delivered under the 1933 Act, when any
post-effective amendment to the Registration Statement shall have been filed or become
effective, (ii) of any request by the Commission for any post-effective amendment of the
Registration Statement or supplement to the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening by direct communication with
the Company of any proceeding for that purpose, and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening by direct communication with the
Company of any proceeding for such purpose. The Company will promptly effect the filing of
any Pricing Prospectus and the Prospectus necessary pursuant to Rule 424(b) of the 1933 Act
Regulations and will take such steps as it deems necessary to ascertain promptly whether any
Pricing Prospectus and the Prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will promptly file the
Pricing Prospectus or Prospectus, as the case may be. The Company will use its reasonable
best efforts to prevent the issuance of any stop order suspending the effectiveness of the
Registration Statement and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If at any time when a prospectus relating to the Notes is required to be delivered
under the 1933 Act, any event occurs as a result of which the Prospectus would include any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement or to supplement
the Prospectus to comply with the 1933 Act or the 1934 Act or the respective rules
thereunder, the Company promptly will (i) notify the Underwriters, (ii) prepare and file
with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or effect such
compliance, and (iii) supply any supplemented Prospectus to the Underwriters in such
quantities as the Underwriters may reasonably request.
(c) During the period when a prospectus relating to the Notes is required to be
delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) of
the 1933 Act Regulations), (i) the Company will file promptly all documents required to be
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and
will furnish to the Underwriters copies of such documents, (ii) on or prior to the date on
which the Company makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the Company proposes
to describe, in a document filed pursuant to the 1934 Act, the Company will furnish to the
Underwriters the information contained or to be contained in such announcement or document,
(iii) the Company will furnish to the Underwriters copies of all other material press
releases or announcements to the general public, and (iv) the Company will immediately
notify the Underwriters of (a) any decrease in the rating of the Notes or any other debt
securities of the Company by any “nationally recognized statistical rating organization” (as
defined for purposes of Rule 436(g) of the 1933 Act Regulations) or (b) any public notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not
9
indicate the direction of the possible change, as soon as the Company learns of any
such decrease or notice. Any requirement to furnish documents or information to the
Underwriters pursuant to this covenant shall be deemed satisfied by the posting of such
documents or information on the Company’s website or the filing thereof with the Commission
on EDGAR.
(d) The Company agrees to prepare a pricing term sheet specifying the terms of the
Notes not contained in any Pricing Prospectus, substantially in the form of Schedule III
hereto and approved by the Underwriters, and to file such pricing term sheet as an “issuer
free writing prospectus” within the time required pursuant to Rule 433 of the 1933 Act
Regulations.
(e) As soon as practicable, but not later than 90 calendar days after the close of the
period covered by the earnings statement, the Company will make generally available to its
security holders and to the Underwriters an earnings statement of the Company which will
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Regulations.
(f) So long as the Underwriters are required to deliver a prospectus in connection with
sales of the Notes, the Company will furnish to the Underwriters and their counsel, without
charge, such copies of the Registration Statement (including exhibits thereto) and
Prospectus as the Underwriters may reasonably request.
(g) The Company will endeavor, in cooperation with the Underwriters, to arrange for the
qualification of the Notes for sale under the laws of such jurisdictions of the United
States of America as the Underwriters may designate, will maintain such qualifications in
effect so long as required for the distribution of the Notes; provided, however, that the
Company will not be obligated to file any general consent to service of process or to
qualify as a foreign limited liability company in any jurisdiction in which it is not so
qualified.
(h) The Company will apply the net proceeds from the offering of the Notes in the
manner set forth under the caption “Use of Proceeds” in the Pricing Prospectus and the
Prospectus.
(i) The Company will not, during the period of 30 days from the date on which the Notes
are purchased by the Underwriters, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of any Notes, any security convertible into or exchangeable into or
exercisable for the Notes or any debt securities substantially similar to the Notes, without
the prior written consent of BNY Mellon on behalf of the Underwriters.
(j) The Company shall, whether or not any sale of the Notes is consummated, pay all
expenses incident to the performance of its obligations under this Agreement, including the
fees and disbursements of its accountants and its counsel, the cost of printing or other
production and delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and
10
related documents delivered to the Underwriters, the cost of preparing, printing,
packaging and delivering the Notes, the fees and expenses incurred in compliance with
Section 4(g) hereof, the fees and disbursements of the Trustee (including legal fees and
disbursements, if any, of counsel to the Trustee), the fees of any agency that rates the
Notes, and any fees payable in connection with the acceptance of the Notes for clearance and
settlement through the facilities of The Depository Trust Company. If this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or Section
7(a)(i) hereof, the Company shall reimburse the Underwriters for all of its reasonable
out-of-pocket expenses relating to the offer and sale of the Notes contemplated by this
Agreement, including the reasonable fees and disbursements of counsel for the Underwriters
incurred in connection therewith.
(k) The Company represents and agrees that, without the prior consent of BNY Mellon on
behalf of Underwriters, it has not made and will not make any offer relating to the Notes
that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act
Regulations; each Underwriter represents and agrees that, without the prior consent of the
Company, it has not made and will not make any offer relating to the Notes that would
constitute a free writing prospectus; any such free writing prospectus the use of which has
been consented to by the Company and the Underwriters is listed on Schedule II hereto.
(l) The Company has complied and will comply with the requirements of Rule 433 of the
1933 Act Regulations applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission or retention where required and legending.
(m) If at any time following issuance of an Issuer Free Writing Prospectus any event
occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing Prospectus or the Prospectus
or would include an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Underwriters,
and, if requested by the Underwriters, will prepare and furnish without charge to the
Underwriters an Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this covenant shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and
in conformity with information furnished in writing to the Company by the Underwriters
expressly for use therein.
5.
Conditions of the Underwriters’ Obligations
. The obligations of the Underwriters
to purchase and pay for the Notes shall be subject to the accuracy of the representations and the
warranties on the part of the Company herein contained as of the date hereof and as of the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Prospectus shall have been filed in the manner and within the time period
required by Rule 424(b) of the 1933 Act Regulations (without reliance on Rule
11
424(b)(8) thereof), all material required to be filed by the Company pursuant to Rule
433(d) of the 1933 Act Regulations shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened and no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission.
(b) On the Closing Date, the Company shall have furnished to the Underwriters the
opinion of Baker Botts L.L.P., counsel for the Company, or other counsel satisfactory to the
Underwriters, dated the Closing Date, to the effect that:
(i) This Agreement constitutes the legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except insofar as enforceability of the indemnification and
contribution provisions hereof may be limited under applicable federal or
state securities laws and except as such enforceability is subject to the
effect of any applicable bankruptcy, insolvency, reorganization or other law
relating to or affecting creditors’ rights generally and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ii) Assuming that the Indenture, including the Ninth Supplemental
Indenture, has been duly authorized, executed and delivered by the Trustee,
the Indenture, including the Ninth Supplemental Indenture, constitutes the
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability is
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors’ rights
generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) The specimen note attached as Exhibit A to the Ninth Supplemental
Indenture is in the form and contains the terms required by the Indenture;
(iv) Assuming that the Notes have been duly authenticated by the
Trustee as specified in the Indenture and delivered against payment of the
consideration therefor determined in accordance with this Agreement, the
Notes constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, and the
Notes are entitled to the benefits of the Indenture, except as such
enforceability is subject to the effect of any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors’
rights generally and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
12
(v) The execution and delivery of the Indenture, this Agreement and the
Notes by the Company and the performance by the Company of its agreements
therein or herein will not (a) breach or otherwise violate any order known
to us and applicable to the Company in effect on the Closing Date of any
court or governmental body or instrumentality of the federal government of
the United States of America having jurisdiction over the Company or its
properties or (b) violate any statute of the federal government of the
United States of America in effect on the Closing Date, or any rule or
regulation in effect on the Closing Date applicable to the Company of any
governmental body or instrumentality of the federal government of the United
States of America having jurisdiction over the Company or its properties;
(vi) The terms and provisions of the Notes and the Indenture conform in
all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(vii) The Company is not an “investment company”, as such term is
defined in the Investment Company Act;
(viii) No approval, authorization, consent or order of any public
board, body or agency of the federal government of the United States of
America is legally required for the issuance and sale of the Notes or the
performance by the Company of its agreements in this Agreement, the
Indenture or the Notes;
(ix) The Registration Statement has become effective under the 1933 Act
and, to such counsel’s knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the 1933
Act; the Registration Statement and the Prospectus (other than (i) the
financial statements and schedules, including the notes thereto, the
auditors’ report thereon, contained or incorporated by reference therein and
(ii) the other financial, numerical and accounting information, contained or
incorporated by reference therein, as to which no opinion need be rendered)
appear on their faces to comply as to form in all material respects with the
requirements of Form S-3, the applicable rules and regulations with respect
thereto under the Trust Indenture Act of 1939, as amended, the 1933 Act and
the 1933 Act Regulations, to the extent that such requirements, rules and
regulations are applicable to the forms thereof; and the Prospectus has been
filed with or transmitted for filing to the Commission in accordance with
Rule 424 of the 1933 Act Regulations;
(x) Such counsel does not know of any contracts or other documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed or incorporated by reference as
13
exhibits to the Registration Statement which are not described, filed
or incorporated by reference as required;
(xi) Such counsel does not know of any legal proceedings pending or
threatened against the Company of a character which are required to be
disclosed in the Registration Statement and the Prospectus which have not
been disclosed therein;
(xii) The Indenture is qualified under the Trust Indenture Act of 1939,
as amended;
(xiii) The information in the Pricing Prospectus and the Prospectus
under the captions “Description of the Notes” and “Description of the Debt
Securities”, to the extent that it constitutes a summary of certain
provisions of the Indenture or the Notes, has been reviewed by us and is
correct in all material respects; and
(xiv) The documents incorporated by reference in the Prospectus (other
than (i) the financial statements and schedules, including the notes
thereto, the auditors’ report thereon, contained or incorporated by
reference into such documents and (ii) the other financial, numerical and
accounting information contained or incorporated by reference therein, as to
which no opinion need be rendered), at the time they were filed with the
Commission, appear on their faces to comply as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations,
to the extent that such requirements, rules and regulations are applicable
to the forms thereof.
In giving such opinion, Baker Botts L.L.P. may rely as to matters of Louisiana law upon the
opinion of Wade A. Hoefling, or such other satisfactory counsel, as referred to below.
(c) On the Closing Date, the Company shall have furnished to the Underwriters the
opinion of Wade A. Hoefling, General Counsel of the Company, or other counsel satisfactory
to the Underwriters, dated the Closing Date, to the effect that:
(i) The Company is a limited liability company duly organized and
validly existing in good standing under the laws of the State of Louisiana
and has all limited liability company power and authority necessary to own
its properties and to conduct the business in which it is engaged as
described in the Prospectus;
(ii) To such counsel’s knowledge, the Company is registered or
qualified as a foreign limited liability company for the transaction of
business in the jurisdictions in which the character of the business
conducted by the Company or the nature or location of the properties owned
or leased by it make such registration or qualification necessary, except
where the failure so to register or qualify would not have a material
14
adverse effect on the business or properties of the Company taken as a
whole;
(iii) The Company has full right, power and authority to enter into
this Agreement and to perform all of its obligations hereunder or
contemplated hereby and this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) The Indenture, including the Ninth Supplemental Indenture, has
been duly authorized, executed and delivered by the Company;
(v) The Company has taken all necessary limited liability company
action to authorize the execution and delivery of the Notes and the Notes
have been duly executed and delivered by the Company;
(vi) Other than in connection with the provisions of securities or
“blue sky” laws of any jurisdiction in which it is proposed that the Notes
be offered or sold (as to which no opinion need be rendered) and other than
the required order or orders of the LPSC referred to below, no approval,
authorization, consent or order of any public board, body or agency of the
State of Louisiana is legally required as of the Closing Date for the
issuance and sale of the Notes, or the performance by the Company of its
agreements in this Agreement, the Indenture or the Notes;
(vii) The Company is subject to the jurisdiction of the LPSC, the LPSC
has authorized the issuance and sale of the Notes as contemplated by this
Agreement and as described in the Prospectus, and the orders of the LPSC
with respect to the issuance and sale of the Notes are in full force and
effect as of the date hereof;
(viii) To such counsel’s knowledge, the Company has valid and
subsisting franchises, consents, certificates and permits, free from
burdensome conditions or restrictions, sufficient in all material respects
to enable it to carry on its business in the State of Louisiana and in the
communities, parishes and other governmental subdivisions thereof in which
it operates, taken as a whole; and
(ix) The execution and delivery of this Agreement, the Indenture and
the Notes by the Company and the performance by the Company of its
agreements herein and therein will not (a) breach or result in a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company that are
described in the Registration Statement and the Prospectus under, any
existing obligation of the Company under any indenture, agreement or
instrument known to him to which the Company is a party or by which it is
bound, (b) breach or otherwise violate any order known to him and applicable
to the Company in effect on the date hereof of any court or
15
governmental body or instrumentality of the State of Louisiana having
jurisdiction over the Company or its properties or (c) violate (i) the
Articles of Organization or the Operating Agreement of the Company, each as
amended to date, or (ii) any statute of the State of Louisiana in effect on
the date hereof, or any published rule or regulation, in effect on the date
hereof applicable to the Company of any governmental body or instrumentality
of the State of Louisiana having jurisdiction over the Company or its
properties that in such counsel’s experience is normally applicable in
transactions of the type contemplated by this Agreement, except with respect
to clause (a) of this paragraph, for such breaches, defaults or violations
as would not, individually or in the aggregate have a material adverse
effect on the business or properties of the Company taken as a whole.
(d) On the Closing Date, the Underwriters shall have received from Sidley Austin
llp
, counsel for the Underwriters, or other counsel satisfactory to the
Underwriters, such opinion or opinions as reasonably requested by the Underwriters, dated
the Closing Date.
In giving such opinion, Sidley Austin
llp
may rely as to matters of Louisiana
law upon the opinion of Wade A. Hoefling as referred to above, or such other satisfactory
counsel. Additionally, Sidley Austin
llp
may state in its opinion that its
opinions are expressed solely with respect to statements contained in or incorporated by
reference in the Registration Statement and the Prospectus relating to the Company and that
it does not express any opinion with respect to any statements contained in or incorporated
by reference in the Registration Statement and the Prospectus relating to Cleco Corporation.
(e) In giving their opinions required by subsections (b) and (d) of this Section 5,
each such counsel shall additionally state that each such counsel has participated in
conferences with officers and other representatives of the Company, regulatory counsel to
the Company and its subsidiary, representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the contents of the Registration
Statement, the Pricing Prospectus and the Prospectus were discussed and, although each such
counsel did not independently verify such information and is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Pricing Prospectus or the Prospectus (except
with respect to the matters set forth in paragraph (b)(vi) of this Section 5), on the basis
of the foregoing (relying as to factual matters relating to the determination of materiality
to a large extent upon officers and other representatives of the Company), nothing has come
to their attention that would lead them to believe that (a) any part of the Registration
Statement, or any further amendment thereto made by the Company prior to such Closing Date
(other than (i) the financial statements and schedules, including the notes thereto, the
auditors’ report thereon and the related summary of accounting policies and management’s
report on internal control over financial reporting, contained or incorporated by reference
therein, (ii) the other financial, numerical and accounting information contained or
incorporated by reference therein and (iii) any statement or representation in any exhibit
included or incorporated by reference
16
therein, as to which no statement need be made), when such part or amendment became
effective, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading, (b) that the Pricing Disclosure Package, as of the Applicable Time (other than
(i) the financial statements and schedules, including the notes thereto, the auditors’
report thereon and the related summary of accounting policies and management’s report on
internal control over financial reporting, contained or incorporated by reference therein
and (ii) the other financial, numerical and accounting information contained or incorporated
by reference therein, as to which no statement need be made), contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or (c) the Prospectus, as of its date and as of the Closing Date (other than (i)
the financial statements and schedules, including the notes thereto, the auditors’ report
thereon, the related summary of accounting policies and management’s report on internal
control over financial reporting, contained or incorporated by reference therein and (ii)
the other financial, numerical and accounting information contained or incorporated by
reference therein, as to which no statement need be made), contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) On the Closing Date there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, of the Company and its subsidiary
taken as a whole, or in the earnings, business affairs or business prospects of the Company
and its subsidiary taken as a whole, whether or not arising in the ordinary course of
business; and the Underwriters shall have received a certificate of the President, the Chief
Financial Officer or the Treasurer of the Company to the effect (i) that there has been no
such material adverse change, (ii) that the other representations and warranties of the
Company contained in Section 3 hereof are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) that the Company has
complied with all agreements and satisfied all conditions pursuant to this Agreement on its
part to be performed or satisfied at or prior to the date of such certificate, and (iv) that
no stop order suspending the effectiveness of the Registration Statement has been issued
and, to the best of such officers’ knowledge, no proceedings for that purpose have been
initiated or threatened by the Commission.
(g) On the date hereof, the Underwriters shall have received a letter from the
Company’s independent accountants dated as of the date hereof in form and substance
satisfactory to the Underwriters.
(h) On the Closing Date, the Underwriters shall have received a letter from the
Company’s independent accountants dated as of the Closing Date in form and substance
satisfactory to the Underwriters, confirming as of the Closing Date their letter dated the
date hereof and delivered to the Underwriters pursuant to Section 5(g) hereof.
17
(i) On or prior to the Closing Date, the Underwriters shall have received in form
satisfactory to them confirmation that the Notes have been rated no lower than “BBB” by
Standard & Poor’s, a Division of The McGraw-Hill Companies, Inc. and no lower than “Baa1” by
Moody’s Investors Service, Inc.
(j) On the date hereof and on the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as such counsel may reasonably require for
the purpose of enabling such counsel to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings, or in order to evidence the accuracy or
completeness of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and
substance in the reasonable judgment of the Underwriters and their counsel.
If any condition specified in this Section 5 shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Underwriters by notice to the
Company at any time at or prior to the Closing Date and any such termination shall be without
liability of any party to any other party, except as provided in Section 4(j) and Section 8 hereof,
and except that Sections 4(j), 6, 9 and 12 shall survive any such termination and remain in full
force and effect.
6.
Indemnification
.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls an
Underwriter within the meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which the Underwriters, the
directors, officers, employees and agents of the Underwriters and each person who controls
an Underwriter within the meaning of either the 1933 Act or the 1934 Act or any of the
aforementioned may become subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus (including the Pricing Prospectus), the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, or
any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the 1933
Act Regulations, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, any preliminary prospectus (including the Pricing
Prospectus), or any supplement thereto, in the light of the circumstances under which such
statement was made) not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or
18
omission or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by BNY Mellon on behalf of the Underwriters
specifically for inclusion therein or in reliance upon the Form T-1. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(b) Each of the Underwriters agrees severally and not jointly to indemnify and hold
harmless the Company, each of its managers, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of either the
1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from the Company to
the Underwriters, but only with reference to written information relating to such
Underwriter furnished to the Company by BNY Mellon on behalf of such Underwriter
specifically for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which the Underwriters may
otherwise have. The Company acknowledges that the statements set forth in the first
sentence of the second paragraph under the heading “Risk Factors — We cannot assure you that
an active trading market for the notes will develop” and in the last sentence of the fourth
paragraph, the sixth paragraph, the third sentence of the ninth paragraph, the tenth
paragraph and the thirteenth paragraph under the heading “Underwriting,” of the Prospectus
constitute the only information furnished in writing by BNY Mellon on behalf of the
Underwriters for inclusion in the documents referred to in the foregoing indemnity, and the
Underwriters confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent the indemnifying party did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory in the reasonable judgment of the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other
19
indemnified parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. In no event shall an indemnifying party be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 6
is held unenforceable or is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively “
Losses
”)
to which the Company and the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the Underwriters
from the offering of the Notes from which such Losses arise; provided, however, that in no
case shall any such Underwriter be responsible for any amount in excess of the underwriting
discount received by such Underwriter in connection with the Notes from which such Losses
arise. If the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Underwriters shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
Company and the Underwriters in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) of the Notes from which such Losses arise, and benefits received by each
Underwriter shall be deemed to be equal to the total underwriting discount received by such
Underwriter in connection with the Notes from which such Losses arise. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriter(s). The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each
20
person who controls each of the Underwriters within the meaning of the 1933 Act or the
1934 Act and each director, officer, employee and agent of each of the Underwriters shall
have the same rights to contribution as the Underwriters and each person who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, each officer of the
Company who shall have signed the Registration Statement, each manager of the Company and
each person, if any, who controls the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of this paragraph
(d). The Underwriters’ respective obligations to contribute pursuant to this Section 6 are
several in proportion to the principal amount of Notes set forth opposite their respective
names in Schedule I hereto and are not joint.
7.
Termination
.
(a) This Agreement will be subject to termination by the Underwriters by notice to the
Company at any time at or prior to the Closing Date if (i) there shall have occurred,
subsequent to the date hereof, any material adverse change, or any change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business; (ii) there has occurred
any material adverse change in the financial markets in the United States, or any outbreak
or escalation of hostilities or other international or national calamity or crisis has
occurred, in each case, involving the United States or the declaration by the United States
of a national emergency or war and, in each case, the effect of which is such as to make it
in the judgment of the Underwriters, impracticable or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Notes; (iii) trading in the
Company’s debt securities shall have been suspended or materially limited by the Commission
or any national securities exchange; (iv) trading in securities generally shall have been
suspended or materially limited or minimum or maximum prices for trading shall have been
established on any of such exchanges; (v) a banking moratorium shall have been declared by
Federal, Louisiana or New York State authorities, or a material disruption shall have
occurred in commercial banking or securities settlement or clearance services in the United
States; (vi) the rating assigned by any nationally recognized statistical rating
organization to the Notes or any other debt securities of the Company as of the date hereof
shall have been lowered or withdrawn since the date hereof or if any such rating
organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its ratings of the Notes or any other such debt securities;
or (vii) there has come to the attention of the Underwriters any facts that would cause the
Underwriters to believe that the Prospectus, at the time it was required to be delivered in
connection with sales of the Notes, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time of such delivery, not misleading.
(b) If this Agreement is terminated pursuant to this Section 7, such termination shall
be without liability of any party to any party except as provided in Section 4(j) and
Section 8 hereof, and provided further that Sections 4(j), 6, 9 and 12 shall survive such
termination and remain in full force and effect.
21
8.
Default.
a) If any Underwriter shall default in its obligation to purchase the Notes which it
has agreed to purchase hereunder on the Closing Date, the non-defaulting Underwriters may
arrange for one or more of such non-defaulting Underwriters or another party or other
parties to purchase such Notes on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the non-defaulting Underwriters shall not have
arranged for the purchase of such Notes, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase such Notes on such terms. In
the event that, within the respective prescribed periods, the non-defaulting Underwriters
notify the Company that the non-defaulting Underwriters have so arranged for the purchase of
such Notes, or the Company notifies the non-defaulting Underwriters that it has so arranged
for the purchase of such Notes, the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Date for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the non-defaulting Underwriters may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this Agreement
with respect to such Notes.
b) If, after giving effect to any arrangements for the purchase of the Notes of a
defaulting Underwriter or Underwriters as provided in subsection (a) above, the aggregate
principal amount of such Notes which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Notes to be purchased on such Closing Date, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the
aggregate principal amount of Notes which such Underwriter agreed to purchase hereunder on
such Closing Date and, in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the aggregate principal amount of Notes which such Underwriter
agreed to purchase hereunder) of the Notes of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
c) If, after giving effect to any arrangements for the purchase of the Notes of a
defaulting Underwriter or Underwriters as provided in subsection (a) above, the aggregate
principal amount of such Notes which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Notes to be purchased on such Closing Date, or if the
Company shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Notes of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 4(j) hereof and the indemnity and
contribution agreements in Section 6 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
22
9.
Survival of Certain Provisions
. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Underwriters or the Company or any of the directors,
officers, employees, agents or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Notes. The provisions of Section 4(j), 6 and 12 hereof and
this Section 9 shall survive the termination or cancellation of this Agreement.
10.
Notices
. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Underwriters, will be mailed, delivered, transmitted via facsimile or
telegraphed and confirmed to BNY Mellon, Attn: Fixed Income/Syndicate, One Wall Street, 18th
Floor, New York, NY 10286, facsimile number: (212) 635-8059 (or such other place as BNY Mellon may
specify in writing), or, if sent to the Company, will be mailed, delivered, transmitted via
facsimile or telegraphed and confirmed to the Company at 2030 Donahue Ferry Road, Pineville,
Louisiana 71360, Attn: Treasurer, facsimile number: (318) 484-7685 (or such other place as the
Company may specify in writing).
11.
Successors
. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their respective successors, the directors, officers, employees, agents and the
persons referred to in Section 6 hereof and no other person will have any right or obligation
hereunder.
12.
Fiduciary Status.
The Company acknowledges and agrees that (i) the purchase and
sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction each Underwriter is acting solely as a principal and not
the agent or fiduciary of the Company, (iii) each Underwriter has not assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that any Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
13.
Prior Agreements
. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
14.
Applicable Law
. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15.
Waiver
. The Company and the Underwriters hereby irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
(whether based upon contract, tort or otherwise) arising out of or relating to this Agreement or
the transactions contemplated hereby. The Company and the Underwriters agree
23
that a final non-appealable judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon the parties and may be enforced in any other
courts to the jurisdiction of which the parties is or may be subject, by suit upon such judgment.
16.
Sales Through Distribution Agen
t. Sales of the Notes by BNY Mellon will be
effected by Broadpoint Capital, Inc., as distribution agent.
17.
Counterparts
. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
24
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company the enclosed duplicate hereof, whereupon this letter along with all
counterparts will represent a binding agreement between the Company and the Underwriters.
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Very truly yours,
Cleco Power LLC
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By:
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/s/ Charles A. Mannix
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Name:
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Charles A. Mannix
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Title:
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Vice President-Tax & Treasurer
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The foregoing Agreement is hereby
confirmed and accepted as of the date hereof.
BNY Mellon Capital Markets, LLC
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By:
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/s/ Daniel Klinger
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Name: Daniel Klinger
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Title: Managing Director
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Calyon Securities (USA) Inc.
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By:
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/s/ Jean Francois Deroche
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Name: Jean Francois Deroche
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Title: Executive Vice President
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KeyBanc Capital Markets Inc.
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By:
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/s/ Ryan W. Pirnat
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Name: Ryan W. Pirnat
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Title: Director
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25
SCHEDULE I
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Principal Amount
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Underwriter
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of Notes to be Purchased
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BNY Mellon Capital Markets, LLC
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$
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83,335,000
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Calyon Securities (USA) Inc.
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83,332,500
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KeyBanc Capital Markets Inc.
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83,332,500
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Total
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$
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250,000,000
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Sch. I-1
SCHEDULE II
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(a)
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Issuer Free Writing Prospectus included in the Pricing Disclosure Package:
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•
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Pricing Term Sheet attached as Schedule III hereto
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(b)
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Issuer Free Writing Prospectus not included in the Pricing Disclosure Package:
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Sch. II-1
SCHEDULE III
Filed pursuant to Rule 433
May 28, 2008
Relating to
Preliminary Prospectus Supplement dated May 28, 2008 to
Prospectus dated April 13, 2006
Registration Statement No. 333-132832
Cleco Power LLC
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Pricing Term Sheet
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Issuer:
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Cleco Power LLC
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Security:
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6.65% Notes due 2018
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Ratings (Moody’s/S&P):
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Baa1/BBB
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Principal Amount:
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$250,000,000
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Maturity:
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June 15, 2018
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Settlement:
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June 3, 2008; T+4
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Coupon:
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6.65%
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Interest Payment Dates:
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June 15 and December 15, commencing December 15, 2008
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Benchmark Treasury:
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3.875% due May 15, 2018
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Benchmark Treasury Yield:
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4.019%
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Spread to Benchmark Treasury:
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2.68%
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Yield to Maturity:
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6.699%
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Initial Price to Public:
|
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99.643% per Note
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Redemption Provisions:
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Make-Whole Call:
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Make whole call at T + 40 bps
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CUSIP:
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185508 AF5
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Minimum Denominations:
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$1,000
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Sch. III-1
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Use of Proceeds:
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The proceeds to the Issuer from the sale of the notes in this
offering are expected to be approximately $247.3 million,
after deducting the underwriting discount and the other
estimated expenses of this offering. The Issuer intends to
use the net proceeds from this offering for general corporate
purposes, including financing a portion of the construction
costs of Rodemacher Unit 3 and repaying borrowings under its
$275.0 million, five-year credit facility, some of which were
used to fund a portion of the construction costs of
Rodemacher Unit 3. As of May 23, 2008, $125.0 million was
outstanding under the Issuer’s credit facility with a
weighted average interest rate of 3.20%.
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Joint Book-Running Managers:
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BNY Mellon Capital Markets, LLC, Calyon Securities (USA) Inc., and
KeyBanc Capital Markets Inc.
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The Issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the Issuer has filed with the SEC for more complete
information about the Issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at
www.sec.gov
. Alternatively, the Issuer, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus if you request it
by calling BNY Mellon Capital Markets, LLC toll-free at 800-269-6864, Calyon Securities (USA) Inc.
toll-free at 866-807-6030 or KeyBanc Capital Markets Inc. toll-free at 866-227-6479.
Sch. III-2
EXHIBIT 4.1
CLECO POWER LLC
(Successor to Cleco Utility Group Inc., formerly Central Louisiana Electric Company, Inc.)
TO
THE BANK OF NEW YORK TRUST COMPANY, N.A.
(Successor to The Bank of New York, successor to Bankers Trust Company),
as Trustee
NINTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 3, 2008
Supplementing the Indenture
dated as of October 1, 1988
NINTH SUPPLEMENTAL INDENTURE, dated as of June 3, 2008, between CLECO POWER LLC (successor to
Cleco Utility Group Inc., formerly Central Louisiana Electric Company, Inc.), a Louisiana limited
liability company (the “
Company
”), having its principal office at 2030 Donahue Ferry Road,
Pineville, Louisiana 71360-5226, and THE BANK OF NEW YORK TRUST COMPANY, N.A. (successor to The
Bank of New York, successor to Bankers Trust Company), a national banking association organized
under the laws of the United States, as trustee (the “
Trustee
”), having its Corporate Trust
Office at 601 Poydras Street, New Orleans, Louisiana 70130 (the “
Ninth Supplemental
Indenture
”).
RECITALS OF THE COMPANY
Central Louisiana Electric Company, Inc., a Louisiana corporation, executed and delivered its
Indenture dated as of October 1, 1988 to Bankers Trust Company, as trustee (the “
Original
Indenture
” and, as previously and hereby supplemented and amended, the “
Indenture
”), to
provide for the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness, in the manner and subject to the conditions set forth therein.
Cleco Utility Group Inc. (formerly Central Louisiana Electric Company, Inc.) (“
Utility
Group
”) executed and delivered to the Trustee a First Supplemental Indenture dated as of
December 1, 2000 (the “
First Supplemental Indenture
”) to the Original Indenture, as
permitted by Section 901(8) of the Original Indenture, in order to amend the Original Indenture in
certain respects to clarify that Utility Group could consolidate with, or sell, lease or convey all
or substantially all of its assets to, or merge with or into any limited liability company.
Pursuant to that certain Joint Agreement of Merger of Utility Group with and into Cleco Power
LLC effective December 31, 2000, Utility Group merged with and into the Company, and the Company
was vested with all rights, privileges and franchises of Utility Group and became responsible for
all liabilities and obligations of Utility Group.
The Company, as successor to Utility Group, executed and delivered to the Trustee a Second
Supplemental Indenture dated as of January 1, 2001 (the “
Second Supplemental Indenture
”) to
the Original Indenture as supplemented and modified by the First Supplemental Indenture, in
accordance with Section 901(1) thereof, in order to evidence and confirm its succession to Utility
Group and its assumption of the covenants therein contained and the Securities.
The Company executed and delivered to the Trustee a Third Supplemental Indenture dated as of
April 26, 2001 to the Original Indenture, a Fourth Supplemental Indenture dated as of February 1,
2002 to the Original Indenture, a Fifth Supplemental Indenture dated as of May 1, 2002 to the
Original Indenture, a Sixth Supplemental Indenture dated as of April 28, 2003 to the Original
Indenture, a Seventh Supplemental Indenture dated as of July 6, 2005 to the Original Indenture and
an Eighth Supplemental Indenture dated as of November 30, 2005 to the Original Indenture, in each
case as supplemented and modified by the supplemental indentures entered into prior thereto and
providing for the creation and issue of an additional series of securities as provided therein.
1
The Company, in the exercise of the power and authority conferred upon and reserved to it
under the provisions of the Original Indenture, including Section 901(6) thereof, and pursuant to
appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver
to the Trustee this Ninth Supplemental Indenture to the Indenture in accordance with Sections 201,
301 and 303 of the Original Indenture in order to establish the form or terms of, and to provide
for the creation and issue of, an additional series of Securities under the Original Indenture in
the aggregate principal amount of $250,000,000.
All things necessary to make this Ninth Supplemental Indenture a valid agreement of the
Company have been done.
NOW, THEREFORE, THIS NINTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and of the covenants contained in the Indenture and
in this Ninth Supplemental Indenture and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all the Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
ADDITIONAL DEFINITIONS
Section 1.01.
Additional Definitions.
Capitalized terms used herein shall have the
meanings specified herein or in the Indenture, as the case may be. Unless otherwise indicated,
section references herein shall be to the sections of the Indenture.
For all purposes of this Ninth Supplemental Indenture:
“
Business Day
” means each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in The City of New York are authorized or
obligated by law to close.
“
Certificated Note
” has the meaning set forth in Section 2.09(b) hereof.
“
Comparable Treasury Issue
” has the meaning set forth in Section 3.01 hereof.
“
Comparable Treasury Price
” has the meaning set forth in Section 3.01 hereof.
“
Corporate Trust Office of the Trustee
” means the office of the Trustee located
at The Bank of New York Trust Company, N.A., 601 Poydras Street, New Orleans, Louisiana
70130; telecopier: (504) 565-5501.
“
Covenant Defeasance
” has the meaning set forth in Section 4.03 hereof.
“
Defaulted Interest
” has the meaning set forth in Section 2.04(c) hereof.
2
“
Defeasance
” has the meaning set forth in Section 4.02 hereof.
“
Depositary
” means, with respect to Securities of any series issuable in whole
or in part in the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities.
“
Global Security
” means a Security that evidences all or part of the Securities
of any series and bears the legend set forth in the Form of Note as Exhibit A hereto.
“
Holder
,” as used in this Ninth Supplemental Indenture, means the Person in
whose name a Note is registered in the Security Register.
“
Indenture
” has the meaning set forth in the Recitals hereof.
“
Independent Investment Banker
” has the meaning set forth in Section 3.01
hereof.
“
Interest Payment Dates
” means June 15 and December 15 of each year, commencing
on December 15, 2008.
“
Maturity Date
” means, with respect to a Note, the date on which the principal
of such Note becomes due and payable as therein or herein provided, whether at Stated
Maturity or by declaration of acceleration, upon redemption by the Company as referred to in
Article Three hereof or otherwise.
“
Notes
” has the meaning set forth in Section 2.01 hereof.
“
Original Issue Date
” means June 3, 2008.
“
Participant
” means an institution that has one or more accounts with the
Depositary or a nominee thereof.
“
Primary Treasury Dealer
” has the meaning set forth in Section 3.01 hereof.
“
Redemption Date
” has the meaning set forth in Section 3.01 hereof.
“
Redemption Price
” has the meaning set forth in Section 3.01 hereof.
“
Regular Record Date
” means, with respect to each Interest Payment Date, the
close of business on June 1 or December 1, as the case may be, next preceding the applicable
Interest Payment Date.
“
Reference Treasury Dealer
” has the meaning set forth in Section 3.01 hereof.
“
Reference Treasury Dealer Quotations
” has the meaning set forth in Section
3.01 hereof.
“
Ninth Supplemental Indenture
” has the meaning set forth in the introductory
paragraph hereof.
3
“
Specimen Note
” has the meaning set forth in Section 2.08 hereof.
“
Stated Maturity
” has the meaning set forth in Section 2.03 hereof.
“
Treasury Rate
” has the meaning set forth in Section 3.01 hereof.
“
U.S. Government Obligation
” has the meaning set forth in Section 4.04(a)
hereof.
ARTICLE TWO
ESTABLISHMENT OF 6.65% NOTES DUE 2018
Section 2.01.
Title of the Securities
. The title of the Securities established by this
Ninth Supplemental Indenture shall be “6.65% Notes due 2018” of the Company (the “
Notes
”).
Section 2.02.
Limitation on Aggregate Principal Amount
. The aggregate principal amount of
the Notes shall be limited to $250,000,000;
provided, however
, that the authorized aggregate
principal amount may in the future be increased without the consent of the Holders pursuant to the
provisions of the Indenture.
Section 2.03.
Stated Maturity
. The Notes shall mature and the principal amount thereof
shall be due and payable, together with all accrued and unpaid interest thereon, on June 15, 2018
(the “
Stated Maturity
”).
Section 2.04.
Interest and Interest Rates
.
(a) Each Note shall bear interest at the rate of 6.65% per annum, from and including
the immediately preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no interest has been paid
or duly provided for), to, but excluding, the Maturity Date. The initial date on which
interest will be paid for the Notes will be December 15, 2008 and the payment on such date
will include all accrued interest from the Original Issue Date.
(b) The amount of interest payable for any period shall be computed on the basis of a
360-day year of twelve 30-day months. 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
Note is not a Business Day, then 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.
(c) The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Persons in whose names the Notes are registered at the
close of business on the applicable Regular Record Date, except that interest payable on the
Maturity Date as provided herein shall be paid to the Holder to whom principal is payable in
accordance with Section 2.05 hereof. Any such interest not
4
so punctually paid or duly provided for (“
Defaulted Interest
”) shall forthwith
cease to be payable to the Holder on such Regular Record Date and may be paid by the
Company, at its election in each case (i) in accordance with the provisions of Section
307(1) of the Original Indenture to the Persons in whose name such Notes are registered at
the close of business on a Special Record Date or (ii) be paid in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated quotation
system, if any, on which the Notes may be listed or traded, and upon such notice as may be
required by such exchange or quotation system, if, after notice is given by the Company to
the Trustee of the proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee, all as more fully provided in the Indenture.
Section 2.05.
Place and Manner of Payment of Principal and Interest.
(a) The Trustee shall initially serve as the Paying Agent for the Notes. Payment of
the principal of and any interest on the Notes due on the Maturity Date shall be made in
immediately available funds in such coin and currency of the United States of America as at
the time of payment is legal tender for payment of public and private debt upon presentation
and surrender of the applicable Note at the office or agency maintained by the Company for
that purpose, initially the Corporate Trust Office of the Trustee, or at such other paying
agency as the Company may determine;
provided, however
, that if the Maturity Date falls on
or after an Interest Payment Date then the Holders presenting and surrendering Notes on such
Maturity Date will only be entitled to interest accruing on or after such Interest Payment
Date.
(b) Payment of interest due on any Interest Payment Date other than on the Maturity
Date will be made at the Corporate Trust Office of the Trustee or, at the option of the
Company, (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 of immediately available
funds at such place and to such account at a banking institution in the United States as may
be designated in wire transfer instructions received in writing by the Trustee at least
fifteen (15) days prior to such Interest Payment Date. Any such wire transfer instructions
received by the Trustee shall remain in effect until revoked by such Holder.
Section 2.06.
Place of Registration or Exchange; Notices and Demands with Respect to Notes
.
The place where the Holders of the Notes may present the Notes for registration of transfer or
exchange and may make notices and demands to or upon the Company in respect of the Notes shall be
the Corporate Trust Office of the Trustee.
Section 2.07.
Sinking Fund Obligations
. The Notes will not be subject to any sinking fund,
but may be redeemable as and to the extent provided in Article Three of this Ninth Supplemental
Indenture.
Section 2.08.
Form of Securities
. The Notes shall be issuable only in fully registered
form, without coupons. The Notes shall be issuable in whole or in part in the form of one or more
Global Securities registered in the name of the Depositary or its nominee. Global Securities shall
not be deemed to be temporary Securities in global form for purposes of
5
Section 304 of the Original Indenture. A beneficial owner of an interest in a Global Security representing
the Notes will not be considered the Holder thereof for any purpose of the Indenture. Except as
may otherwise be provided in an Officers’ Certificate or Company Order subsequently delivered to
the Trustee, the Notes will be issuable in denominations of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000.
The Notes shall be substantially in the form attached as Exhibit A hereto (the “
Specimen
Note
”).
Section 2.09.
Global Securities
.
(a) The Notes shall be issuable in whole or in part in the form of one or more Global
Securities. The Global Securities shall be deposited with, or on behalf of, The Depository
Trust Company, New York, New York, which shall act initially as Depositary with respect to
the Notes, or any other duly appointed depositary (the “
Depositary
”). The Notes
shall be issued only as fully registered securities in the name of the Depositary’s nominee,
Cede & Co. In addition to any other legend permitted pursuant to the provisions of the
Indenture, each Global Security shall bear legends in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) OR OTHER DULY APPOINTED DEPOSITORY (THE “DEPOSITARY”). UNLESS AND UNTIL
IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY OR OTHER DULY APPOINTED
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
“Unless this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation, to the issuer hereof or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative of The
Depository Trust Company (and any payment is made to Cede & Co. or to 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 BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.”
(b) Unless and until it is exchanged in whole or in part for one or more Notes in
certificated form (each a “
Certificated Note
”), a Global Security representing all
or a portion of the Notes may not be transferred except as a whole (i) by the Depositary to
a nominee of such Depositary, (ii) by a nominee of such Depositary to such Depositary or
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another nominee of such Depositary or (iii) by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Certificated Notes may be
presented for registration of transfer or exchange at the office or agency provided for in
the Indenture, as supplemented and amended.
(c) If at any time the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary or if at any time the Depositary shall no longer be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depositary. If a successor
Depositary is not appointed by the Company within sixty (60) days after the Company receives
such notice or becomes aware of such condition, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of Certificated Notes,
shall authenticate and deliver Certificated Notes in an aggregate principal amount equal to
the principal amount of the Global Security or Notes held by the Depositary in exchange
therefor.
(d) The Company may at any time and in its sole discretion determine that all or any
portion, in authorized denominations, of the Notes issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Notes. In such event,
the Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Certificated Notes, shall authenticate and deliver
Certificated Notes in an aggregate principal amount equal to the principal amount of such
Global Security or Notes in exchange therefor.
(e) Except as may be otherwise provided in an Officers’ Certificate or Company Order
subsequently delivered to the Trustee and except as specifically provided in Section 2.09(c)
or 2.09(d) hereof, interests in the Notes represented by a Global Security will not be
exchangeable for and will otherwise not be issuable in the form of Certificated Notes.
Upon the occurrence in respect of any Global Security of any one or more of the conditions
specified in Section 2.09(c) or 2.09(d) hereof or as may otherwise be provided in an
Officers’ Certificate or Company Order subsequently delivered to the Trustee, such Global
Security shall be cancelled by the Trustee and Certificated Notes issued in exchange for a
Global Security shall be registered in such names and in such authorized denominations as
the Depositary for such Global Security, pursuant to instructions from its direct or
indirect Participants or otherwise, shall instruct the Trustee. Unless otherwise specified
in such instructions, the Trustee shall deliver such Certificated Notes to the Persons in
which names such Certificated Notes are so registered. If the Certificated Notes are so
delivered, the Company may make such changes to the form of such Notes as are necessary or
appropriate to allow for the issuance of such Certificated Notes. Notwithstanding any other
provision of the Indenture, unless otherwise provided in an Officers’ Certificate or Company
Order subsequently delivered to the Trustee, any Note authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global Security shall
also be a Global Security and shall bear the legends specified in Section 2.09(a) hereof,
except for any transfer of a Global Security pursuant to this Section 2.09.
7
Section 2.10.
Security Registrar
. The Trustee shall initially serve as the Security
Registrar for the Notes.
Section 2.11.
Transfer
. No service charge will be made for the registration of transfer or
exchange of Notes;
provided, however
, that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with the transfer or exchange.
The Company shall not be required (a) to issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business fifteen (15) days before the day of the
mailing of a notice pursuant to Section 1104 of the Original Indenture identifying the certificate
numbers of the Notes to be called for redemption, and ending at the close of business on the day of
the mailing, or (b) to register the transfer of or exchange any Notes theretofore selected for
redemption in whole or in part, except the unredeemed portion of any Note redeemed in part.
ARTICLE THREE
OPTIONAL REDEMPTION OF THE NOTES
Section 3.01.
Redemption Price
. The Company shall have the right to redeem the Notes as a
whole or in part, at its option, at any time and from time to time, at a price (“
Redemption
Price
”) equal to the greater of:
(a) 100% of the principal amount of such Notes, and
(b) the sum of the present values of the remaining scheduled payments of principal and
interest on such Notes (exclusive of unpaid interest to the date of redemption
(“
Redemption Date
”)) discounted to the Redemption Date semiannually (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below),
plus 40 basis points,
plus, in either case (a) or (b), accrued and unpaid interest on such Notes to (but excluding) the
Redemption Date.
“
Treasury Rate
” means, with respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue (as defined below),
assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price (as defined below) for such Redemption Date.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an
Independent Investment Banker (as defined below) as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be used, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
“
Independent Investment Banker
” means an independent investment banking institution of
national standing appointed by the Company. If the Company fails to appoint such an independent
investment banking institution at least thirty (30) Business Days prior to a Redemption Date, or if
the institution appointed by the Company is unwilling or unable to select
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the Comparable Treasury Issue, the selection shall be made by BNY Mellon Capital Markets, LLC or,
if it is unwilling or unable to make the selection, by an independent investment banking
institution of national standing appointed by the Trustee.
“
Comparable Treasury Price
” means, with respect to any Redemption Date, (i) the average of
the Reference Treasury Dealer Quotations (as defined below) for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such
quotations.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury
Dealer (as defined below) and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding such Redemption Date.
“
Reference Treasury Dealer
” means five primary U.S. Government securities dealers in the
United States (“
Primary Treasury Dealer
”) appointed by the Company in connection with the
redemption;
provided, however
, that if any of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall replace that former dealer with another Primary Treasury Dealer.
Section 3.02.
Partial Redemption
. If the Notes are redeemed in part pursuant to this
Article Three, the Notes shall be redeemed pro rata or by lot or by any other method that the
Trustee deems fair and appropriate. Such partially redeemed Notes shall be surrendered at any
office or agency of the Company maintained for that purpose pursuant to Section 1002 of the
Original Indenture, initially the Corporate Trust Office of the Trustee, with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his or her
attorney duly authorized in writing, and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder, without charge, a new Registered Security of authorized
denominations for the principal amount for the unredeemed portion pursuant to Section 1107 of the
Original Indenture.
Section 3.03.
Notice of Optional Redemption
. If the Company elects to exercise its right
to redeem all or some of the Notes pursuant to this Article Three, the Company or, at the Company’s
request, the Trustee, shall mail a written notice of such redemption to each Holder of any Note
that is to be redeemed not less than thirty (30) days nor more than sixty (60) days prior to the
Redemption Date.
Section 3.04.
No Limitation on Purchase of Notes by the Company
. Subject to the foregoing
and to applicable law (including, without limitation, United States federal securities laws), the
Company and its affiliates may, at any time and from time to time, purchase outstanding Notes by
tender, in the open market or by private agreement.
9
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.01.
Election by Company
. The Company may elect, at its option at any time, to
have Section 4.02 or 4.03 hereof applied to any or all of the Notes, upon compliance with the
conditions set forth below in this Article Four. Any such election shall be evidenced by a Board
Resolution or in another manner contemplated by the Indenture, as supplemented hereby, with respect
to such Notes.
Section 4.02.
Defeasance
. Upon the Company’s exercise of its option to have this Section
4.02 applied to any Notes, the Company shall be deemed to have been discharged from its obligations
with respect to such Notes as provided in this Article Four on and after the date the conditions
set forth in Section 4.04 hereof are satisfied (hereinafter called “
Defeasance
”). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Notes and to have satisfied all its other obligations under
such Notes and the Indenture, insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), subject to the following,
which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders
of such Notes to receive, solely from the trust fund described in Section 4.04 hereof and as more
fully set forth in such section, payments in respect of the principal of and interest on such Notes
when payments are due, (b) the Company’s obligations with respect to such Notes under Sections 304,
305, 306, 1002 and 1003 of the Original Indenture, (c) the rights, powers, trusts, duties and
immunities of the Trustee under the Indenture and (d) this Article Four. Subject to compliance
with this Article Four, the Company may exercise its option to have this Section 4.02 applied to
any Notes notwithstanding the prior exercise of its option to have Section 4.03 hereof applied to
such Notes.
Section 4.03.
Covenant Defeasance
. Upon the Company’s exercise of its option to have this
Section 4.03 applied to any Notes, (a) the Company shall be released from its obligations under
Article Eight of the Original Indenture, Sections 1007 and 1009 of the Original Indenture and any
covenants for the benefit of the Holders of such Notes provided pursuant to Sections 301(17),
Section 901(2) and 901(6) of the Original Indenture and (b) the occurrence of any event specified
in Sections 501(4) (with respect to Article Eight of the Original Indenture, Sections 1007, 1009
and/or to any such covenants provided pursuant to Sections 301(17), 901(2) or 901(6)), and 501(8)
of the Original Indenture shall be deemed not to be or result in an Event of Default, in each case
with respect to such Notes as provided in this Section 4.03 on and after the date the conditions
set forth in Section 4.04 hereof are satisfied (hereinafter called “
Covenant Defeasance
”).
For this purpose, such Covenant Defeasance means that, with respect to such Notes, the Company may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such specified section (to the extent so specified in the case of Section 501(4) of
the Original Indenture), whether directly or indirectly by reason of any reference elsewhere in the
Indenture or herein to any such section or by reason of any reference in any such section to any
other provision in the Indenture, herein or in any other document, but the remainder of the
Indenture, as supplemented hereby, and such Notes shall be unaffected thereby.
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Section 4.04.
Conditions for Defeasance or Covenant Defeasance of Notes
. The following
shall be the conditions to the application of Section 4.02 or Section 4.03 hereof to any Notes:
(a) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements contemplated by Section 609 of
the Original Indenture and agrees to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of the Holders
of such Notes, (1) money in an amount, or (2) U.S. Government Obligations (as defined below)
which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than 10:00 a.m., New York City time, on
the due date of any payment, money in an amount, or (3) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and interest on such Notes on the Stated Maturity, in accordance
with the terms of the Indenture, and such Notes. As used herein, “
U.S. Government
Obligation
” means (x) any security which is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by such bank for the
account of the holder of such depository receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depository receipt.
(b) In the event of an election to have Section 4.02 hereof apply to any Notes, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (1) the
Company has received from, or there has been published by, the Internal Revenue Service a
ruling or (2) since the date of this Ninth Supplemental Indenture, there has been a change
in the applicable federal income tax law, in either case (1) or (2) to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Notes will not recognize
gain or loss for federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Notes and will be subject to federal income
tax on the same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
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(c) In the event of an election to have Section 4.03 hereof apply to any Notes, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes will not recognize gain or loss for federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to such Notes and
will be subject to federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that such Notes, if then listed on any securities exchange, will be delisted as a
result of such deposit.
(e) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Notes shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections 501(6) and (7) of the
Original Indenture, at any time on or prior to the sixtieth (60th) day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
after such sixtieth (60th) day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are
in default within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the Company is
a party or by which it is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment Company
Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from
registration thereunder.
(i) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.
Section 4.05.
Acknowledgement of Defeasance
. Subject to Section 4.07 below and after the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent referred to in Section 4.04 hereof, as the case may be,
relating to the defeasance or satisfaction and discharge of the Indenture, have been complied with,
the Trustee upon request of the Company shall acknowledge in writing the defeasance or the
satisfaction and discharge, as the case may be, of the Indenture, and the discharge of the
Company’s obligations under the Indenture.
Section 4.06.
Trustee Obligations
. Subject to the provisions of the last paragraph of
Section 1003 of the Original Indenture, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 4.07 hereof, the Trustee and any such other trustee are referred to
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collectively as the “
Trustee
”) pursuant to Section 4.04 hereof in respect of any Notes
shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes
and the Indenture, to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Notes,
of all sums due and to become due thereon in respect of principal and interest, but money so held
in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 4.04 hereof or
the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Notes.
Anything in this Article Four to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.04 hereof with respect to any Notes which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Notes.
Section 4.07.
Reinstatement of Note Obligations
. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article Four with respect to any Notes by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under the Indenture, and such Notes from which
the Company has been discharged or released pursuant to Section 4.02 or 4.03 hereof shall be
revived and reinstated as though no deposit had occurred pursuant to this Article Four with respect
to such Notes, until such time as the Trustee or Paying Agent is permitted to apply all money held
in trust pursuant to Section 4.06 hereof with respect to such Notes in accordance with this Article
Four;
provided, however
, that if the Company makes any payment of principal of or interest on any
such Note following such reinstatement of its obligations, the Company shall be subrogated to the
rights (if any) of the Holders of such Notes to receive such payment from the money so held in
trust.
ARTICLE FIVE
MISCELLANEOUS
Section 5.01.
One Instrument
. As supplemented by this Ninth Supplemental Indenture, the
Indenture shall be read, taken and construed as one and the same instrument.
Section 5.02.
No Additional Duties
. Except as expressly set forth in this Ninth
Supplemental Indenture, the Trustee assumes no duties, responsibilities or liabilities by reason of
this Ninth Supplemental Indenture, other than as set forth in the Indenture, as fully as if said
terms and conditions were herein set forth at length.
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Section 5.03.
Counterparts
. This Ninth Supplemental Indenture may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be an original; but
such counterparts shall together constitute one and the same instrument.
Section 5.04.
Governing Law
. This Ninth Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York applicable to agreements made and to
be performed in such state.
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IN WITNESS WHEREOF, the Company has caused this Ninth Supplemental Indenture to be executed in
its limited liability company name and its limited liability company seal to be hereunto affixed
and attested by its duly authorized officers, all as of the date first above written.
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CLECO POWER LLC
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[SEAL]
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By:
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Charles A. Mannix
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Vice President — Tax & Treasurer
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ATTEST:
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Judy P. Miller
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Corporate Secretary
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Signed, sealed, acknowledged and delivered
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by CLECO POWER LLC, in the presence of:
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Name:
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Name:
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[Signatures continued on next page.]
IN WITNESS WHEREOF, the Trustee has caused this Ninth Supplemental Indenture to be executed in
its corporate name and attested by its duly authorized officers, all as of the date first above
written.
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THE BANK OF NEW YORK TRUST
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COMPANY, N.A., as Trustee
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By:
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Denis L. Milliner
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Vice President
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ATTEST:
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Byron P. Poydras
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Vice President
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Signed, acknowledged and delivered
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by THE BANK OF NEW YORK TRUST
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COMPANY, N.A. in the presence of:
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Name:
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Name:
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STATE OF LOUISIANA
PARISH OF
BE IT KNOWN, that on this
day of June, 2008, before me, the undersigned authority, duly
commissioned, qualified and sworn within and for the State and Parish aforesaid, personally came
and appeared:
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1.
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Charles A. Mannix
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2.
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Judy P. Miller
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to me known to be the identical persons who executed the above and foregoing instrument, who
declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses,
that they are respectively (1) the Vice President — Tax & Treasurer and (2) the Corporate
Secretary of Cleco Power LLC (the “
Company
”); that the seal impressed beside their
respective signatures on the foregoing Ninth Supplemental Indenture is the official seal of the
Company; that the aforesaid instrument was signed and sealed by them, on behalf of the Company by
authority of a resolution duly adopted by the Board of Managers of the Company on March 17, 2006;
and that the above named persons acknowledge said instrument to be the free act and deed of the
Company.
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Charles A. Mannix
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Vice President — Tax & Treasurer
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Judy P. Miller
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Corporate Secretary
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WITNESSES:
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Notary Public
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, that on this
day of June, 2008, before me, the undersigned authority, duly
commissioned, qualified and sworn within and for the State and Parish aforesaid, personally came
and appeared:
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1.
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Denis L. Milliner
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2.
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Byron P. Poydras
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to me known to be the identical persons who executed the above and foregoing instrument, who
declared and acknowledged to me, Notary, in the presence of the undersigned competent witnesses,
that they are respectively (1) the Vice President and (2) the Vice President of The Bank of New
York Trust Company, N.A. (the “
Trustee
”); that the aforesaid instrument was signed by them
on behalf of the Trustee by authority of its By-laws; and that the above named persons acknowledge
said instrument to be the free act and deed of the Trustee.
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1.
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Denis L. Milliner
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Vice President
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Byron P. Poydras
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Vice President
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WITNESSES:
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Notary Public
EXHIBIT A
FORM OF 6.65% NOTE
Exhibit A
Page 1
[FORM OF FACE OF NOTE]
[If 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 THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) OR OTHER DULY APPOINTED DEPOSITORY (THE “DEPOSITARY”). UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY OR OTHER DULY APPOINTED DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE
OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation, to the issuer hereof or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of The Depository Trust Company (and any
payment is made to Cede & Co. or to 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 BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.]
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NO. ___
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CUSIP NO. 185508 AF5
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CLECO POWER LLC
6.65% NOTE
DUE JUNE 15, 2018
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Principal Amount:
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$250,000,000
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Regular Record Date:
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June 1 or December 1, as the case may be, next preceding the applicable Interest Payment Date
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Original Issue Date:
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June 3, 2008
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Stated Maturity:
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June 15, 2018
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Interest Payment Dates:
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June 15 and December 15, commencing December 15, 2008
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Interest Rate:
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6.65% per annum
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Authorized Denomination:
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$1,000 and integral multiples in excess thereof
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Exhibit A
Page 2
CLECO POWER LLC, a Louisiana limited liability company (the “Company”, which term includes any
successor entity under the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to ______, or registered assigns, the principal sum of
($ )
on the Stated Maturity shown above (or upon any earlier date of redemption or acceleration of
maturity) (each such date being hereinafter referred to as the “
Maturity Date
”) and to pay
interest thereon, from and including the immediately preceding Interest Payment Date to which
interest has been paid or duly provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for), to, but excluding, the Maturity Date, semiannually in
arrears on each Interest Payment Date as specified above, commencing on December 15, 2008 at the
rate per annum shown above until the principal hereof is paid or made available for payment and on
any overdue principal and on any overdue installment of interest. Capitalized terms used herein
shall have the meanings specified in the Indenture or the Ninth Supplemental Indenture (each as
defined on the reverse hereof), as the case may be.
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 this 6.65% Note due June 15, 2018 (this “Note,” and
collectively, the “Notes”) is registered at the close of business on the applicable Regular Record
Date, except that interest payable on the Maturity Date as provided herein shall be paid to the
Holder to whom principal is payable in accordance with Section 2.05 of the Ninth Supplemental
Indenture. Any such interest not so punctually paid or duly provided for (“
Defaulted
Interest
”) shall forthwith cease to be payable to the Holder hereof on such Regular Record Date
and may be paid by the Company, at its election in each case (i) in accordance with the provisions
of Section 307(1) of the Indenture to the Person in whose name this Note is registered at the close
of business on a Special Record Date or (ii) be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange or automated quotation system, if any, on which
the Notes may be listed or traded, and upon such notice as may be required by such exchange or
quotation system, if, after notice is given by the Company to the Trustee of the proposed payment
pursuant to clause 2.04(c)(ii) of the Ninth Supplemental Indenture, such payment shall be deemed
practicable by the Trustee, all as more fully provided in the Indenture.
Interest payments on this Note will include interest accrued to, but excluding, the respective
Interest Payment Dates or the Maturity Date. Interest payments for this Note shall be computed and
paid on the basis of a 360-day year of twelve 30-day months. 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
Note is not a Business Day (as defined below), then 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. A ‘Business Day,’ means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New York are authorized
or obligated by law to close.
The Trustee shall initially serve as the Paying Agent for the Notes. Payment of the principal
of and any interest on this Note due on the Maturity Date shall be made in immediately available
funds in such coin and currency of the United States of America as at the
Exhibit A
Page 3
time of payment is legal tender for payment of public and private debt upon presentation and
surrender of this Note at the office or agency maintained by the Company for that purpose,
initially the Corporate Trust Office of the Trustee, or at such other paying agency as the Company
may determine;
provided, however
, that if the Maturity Date falls on or after an Interest Payment
Date then the Holder presenting and surrendering this Note on such Maturity Date will only be
entitled to interest accruing on or after such Interest Payment Date.
Payment of interest due on any Interest Payment Date other than on the Maturity Date will be
made at the Corporate Trust Office of the Trustee or, at the option of the Company, (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 of immediately available funds at such place and to such account
at a banking institution in the United States as may be designated in wire transfer instructions
received in writing by the Trustee at least fifteen (15) days prior to such Interest Payment Date.
Any such wire transfer instructions received by the Trustee shall remain in effect until revoked by
such Holder.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which provisions shall for all purposes have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by the Trustee by manual
signature, this Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
Exhibit A
Page 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated: __________ ___, 2___
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CLECO POWER LLC
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By:
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Name:
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Title:
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(Seal of CLECO POWER LLC appears here)
Attest:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated: __________ ___, 2___
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THE BANK OF NEW YORK TRUST COMPANY,
N.A., as
Trustee
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By:
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Authorized Signatory
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Exhibit A
Page 5
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Company, issued and issuable in
one or more series under the Indenture, dated as of October 1, 1988 (as previously and hereby
supplemented and amended, the “
Indenture
”), between the Company (successor to Cleco Utility
Group Inc., formerly Central Louisiana Electric Company, Inc.) and The Bank of New York Trust
Company, N.A. (successor to The Bank of New York, successor to Bankers Trust Company), as trustee
(the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture
and all indentures incidental thereto reference is hereby made for a statement of the respective
rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes issued thereunder and of the terms upon which said Notes are, and are to be,
authenticated and delivered. This Note is designated on the face hereof as 6.65% Notes due June
15, 2018 (the “
Notes
”) in the aggregate principal amount of $250,000,000;
provided,
however,
that the authorized aggregate principal amount may in the future be increased without the
consent of the Holders of the Notes pursuant to the provisions of the Indenture.
The Company shall have the right, subject to the terms and conditions of the Ninth
Supplemental Indenture, dated as of June 3, 2008, between the Company and the Trustee (the
“
Ninth Supplemental Indenture
”), to redeem this Note, as a whole or in part, at its option,
at any time and from time to time, at a Redemption Price equal to the greater of:
(a) 100% of the principal amount of this Note, and
(b) the sum of the present values of the remaining scheduled payments of principal and
interest on this Note (exclusive of unpaid interest to the Redemption Date) discounted to
the Redemption Date semiannually (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus 40 basis points,
plus, in either case (a) or (b), accrued and unpaid interest on this Note to (but excluding) the
Redemption Date, all as more fully provided in the Ninth Supplemental Indenture.
If the Company elects to exercise its right to redeem all or part of this Note, the Company
or, at the Company’s request, the Trustee, will mail a written notice of such redemption to the
Holder hereof not less than thirty (30) days nor more than sixty (60) days prior to the Redemption
Date. In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed
portion will be issued in the name of the Holder hereof upon the surrender hereof pursuant to the
terms of Section 3.02 of the Ninth Supplemental Indenture. The Notes will not have a sinking fund.
No reference herein to the Indenture and no provision of this Note shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
If an Event of Default shall occur and be continuing under the Indenture, the principal of the
Notes may be declared due and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
Exhibit A
Page 6
The Indenture contains provisions for defeasance of (i) the entire indebtedness of the Notes
or (ii) certain covenants and Events of Default with respect to the Notes, in each case upon
compliance with certain conditions set forth therein.
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
Notes at any time by the Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Notes affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the Outstanding Notes, on behalf of the
Holders of all such Notes, to waive compliance by the Company with certain provisions of the
Indenture. Furthermore, provisions in the Indenture permit the Holders of a majority in principal
amount of the Outstanding Notes, in certain instances, to waive, on behalf of all of the Holders of
Notes, certain past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and other Notes issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
Prior to due presentment of this Note 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 Note is
registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary, except as
required by law.
The Notes are issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.
As provided in the Ninth Supplemental Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security Register upon surrender
of this Note for registration of transfer at the office or agency of the Company maintained for
that purpose. Every Note presented for registration of transfer shall (if so required by the
Company or the Security Registrar) be duly endorsed, 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 by his or her attorney duly authorized in writing, and thereupon one or more new
Notes having the same terms and provisions, of Authorized Denominations and for the same aggregate
principal amount, will be issued by the Company to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange of this Note,
provided
,
however
, that the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange.
The Company shall not be required (i) to issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business fifteen (15) days before the day of the
mailing of the notice of redemption pursuant to the Indenture identifying the certificate numbers
of the Notes to be called for redemption, and ending at the close of business on the day of the
mailing, or (ii) to register the transfer of or exchange any Notes theretofore
Exhibit A
Page 7
selected for redemption in whole or in part, except the unredeemed portion of any Note
redeemed in part.
As provided in the Ninth Supplemental Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal amount of Notes of
different authorized denominations but otherwise having the same terms and provisions, as requested
by the Holder hereof surrendering the same.
Notwithstanding anything to the contrary, if (x) the Depositary at any time notifies the
Company that it is unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor Depositary is not appointed by
the Company within sixty (60) days after the Company receives such notice or becomes aware of such
condition, or (y) the Company executes and delivers to the Trustee a Company Order to the effect
that this Note shall be exchangeable for certificates issued in definitive form (“
Certificated
Notes
”), this Note shall be exchangeable for Certificated Notes of like tenor and of an equal
aggregate principal amount, in authorized denominations of $1,000 and integral multiples thereof.
Such Certificated Notes shall be registered in such name or names as the Depositary, pursuant to
instructions from its direct or indirect Participants or otherwise, shall instruct the Trustee.
Unless otherwise specified in such instructions, the Trustee shall deliver such Certificated Notes
to the Persons in which names such Certificated Notes are so registered. If Certificated Notes are
so delivered, the Company may make such changes to the form of this Note as are necessary or
appropriate to allow for the issuance of such Certificated Notes.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
Exhibit A
Page 8
[If not Global Security, insert —
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Note, shall be
construed as though they were written out in full according to applicable laws or regulations:
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TEN COM
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as tenants in common
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TEN ENT
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as tenants by the entireties
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JT TEN
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as joint tenants with right of
survivorship and not as tenants in
common
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UNIF GIFT MIN ACT
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Custodian
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(Cust) (Minor)
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Under Uniform Gifts to Minors Act
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(State)
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Additional abbreviations may also be used though not in the above list.
Exhibit A
Page 9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name and address including postal zip code of assignee)
This Note and all rights thereunder hereby irrevocably constituting and appointing
Attorney to transfer this Note on the books of the Trustee, with full power of substitution in the
premises.
Dated:
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Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.]
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Exhibit A
Page 10
