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
6
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
8
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.
&ldq
| 
