Execution Copy
CLECO XXXXXXXXXX LLC
to
BANK ONE TRUST COMPANY, N.A.
as Trustee
-----------------------------
TRUST INDENTURE
Dated as of December 10, 1999
-----------------------------
$218,600,000 8.82% Senior Secured Bonds due 2019
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS; INDENTURE TO CONSTITUTE CONTRACT........................................1
SECTION 1.1 Definition; Construction.....................................................1
SECTION 1.2 Equal and Ratable Benefit....................................................2
SECTION 1.3 Compliance Certificates and Opinions.........................................2
SECTION 1.4 Form of Documents Delivered to Trustee.......................................3
ARTICLE II THE BONDS...........................................................................4
SECTION 2.1 Authorization, Amount, Terms, and Issuance of Bonds..........................4
SECTION 2.2 Authorization and Terms of the Bonds; Payments on the Bonds..................4
SECTION 2.3 Additional Bonds.............................................................5
SECTION 2.4 Registered Holders Deemed Holders............................................7
SECTION 2.5 Register; Registration of Bonds; Transfer and Exchange.......................8
SECTION 2.6 Execution....................................................................8
SECTION 2.7 Authentication...............................................................9
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Bonds...................................9
SECTION 2.9 Cancellation and Destruction of Surrendered Bonds...........................10
ARTICLE III REDEMPTION OF BONDS...............................................................10
SECTION 3.1 Optional Redemption.........................................................10
SECTION 3.2 Election or Requirement to Redeem; Notice to Trustee........................10
SECTION 3.3 Mandatory Redemption; Selection of Bonds to Be Redeemed.....................11
SECTION 3.4 Notice of Redemption........................................................14
SECTION 3.5 Bonds Payable on Redemption Date............................................15
SECTION 3.6 Bonds Redeemed in Part......................................................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES.....................................................15
SECTION 4.1 Organization, Power and Status of the Company...............................15
SECTION 4.2 Authorization; Enforceability; Execution and Delivery.......................15
SECTION 4.3 No Conflicts; Laws and Contracts; No Default; Representations and
Warranties..................................................................16
SECTION 4.4 Governmental Approvals......................................................16
SECTION 4.5 Litigation..................................................................17
SECTION 4.6 Utility Regulation..........................................................17
SECTION 4.7 Environmental Matters.......................................................17
SECTION 4.8 Employee Benefit Plans......................................................17
SECTION 4.9 Business of the Company.....................................................17
SECTION 4.10 Investment Company Act......................................................18
SECTION 4.11 Zoning......................................................................18
Page
ARTICLE V COVENANTS...........................................................................18
SECTION 5.1 Payment of Principal of and Interest on Bonds...............................18
SECTION 5.2 Reporting Requirements......................................................18
SECTION 5.3 Limited Liability Company Existence.........................................20
SECTION 5.4 Compliance with Laws........................................................20
SECTION 5.5 Governmental Approvals; EWG Status..........................................20
SECTION 5.6 Insurance...................................................................20
SECTION 5.7 Payment of Taxes and Claims.................................................20
SECTION 5.8 Books and Records...........................................................21
SECTION 5.9 Right of Inspection.........................................................21
SECTION 5.10 Maintenance of Property and Security........................................21
SECTION 5.11 Performance of Transaction Documents; Construction of the Project...........22
SECTION 5.12 Rule 144A Information.......................................................22
SECTION 5.13 Project Revenues............................................................22
SECTION 5.14 Independent Engineer........................................................22
SECTION 5.15 Annual Operating Budget.....................................................22
SECTION 5.16 Use of Proceeds.............................................................23
SECTION 5.17 Independent Auditor.........................................................23
SECTION 5.18 Debt 23
SECTION 5.19 Permitted Liens.............................................................25
SECTION 5.20 Business Activities.........................................................26
SECTION 5.21 Fundamental Changes, etc....................................................26
SECTION 5.22 Affiliate Transactions......................................................26
SECTION 5.23 Restricted Payments.........................................................26
SECTION 5.24 Investments.................................................................26
SECTION 5.25 Investment Company Act......................................................27
SECTION 5.26 Formation Documents.........................................................27
SECTION 5.27 Guaranty Obligations........................................................27
SECTION 5.28 Amendments to Project Documents.............................................27
SECTION 5.29 Additional Project Documents................................................28
SECTION 5.30 Change Orders...............................................................28
SECTION 5.31 Alterations and Additions...................................................28
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES.....................................................29
SECTION 6.1 Events of Default Defined...................................................29
SECTION 6.2 Enforcement of Remedies.....................................................32
SECTION 6.3 Judicial Proceedings Instituted by Trustee..................................33
SECTION 6.4 Holders May Demand Enforcement of Rights by Trustee.........................35
SECTION 6.5 Control by Holders..........................................................35
SECTION 6.6 Waiver of Past Defaults or Events of Default................................35
SECTION 6.7 Holder May Not Bring Suit Except Under Certain Conditions...................36
SECTION 6.8 Undertaking to Pay Court Costs..............................................36
SECTION 6.9 Right of Holders to Receive Payment Not to Be Impaired......................37
SECTION 6.10 Application of Moneys Collected by Trustee..................................37
SECTION 6.11 Bonds Held by Certain Persons Not to Share in Distribution..................38
ii
Page
SECTION 6.12 Waiver of Appraisement, Valuation, Stay, Right to Marshalling...............38
SECTION 6.13 Remedies Cumulative; Delay or Omission Not a Waiver.........................39
SECTION 6.14 The Intercreditor Agreement.................................................39
SECTION 6.15 The Depositary Agreement....................................................39
ARTICLE VII ACTS OF HOLDERS...................................................................40
SECTION 7.1 Acts of Holders.............................................................40
SECTION 7.2 Proof of Execution of Instruments and of Holding of Bonds...................40
SECTION 7.3 Bonds Owned by the Company or Affiliate Deemed Not Outstanding..............40
SECTION 7.4 Right of Revocation of Action Taken.........................................41
ARTICLE VIII AMENDMENTS AND SUPPLEMENTS.......................................................41
SECTION 8.1 Amendments and Supplements to Indenture without Consent of Holders..........41
SECTION 8.2 Amendments and Supplements to Indenture with Consent of Holders.............42
SECTION 8.3 Trustee Authorized to Join in Amendments and Supplements; Reliance on
Counse......................................................................42
SECTION 8.4 Effect of Supplemental Indentures...........................................43
SECTION 8.5 Reference in Bonds to Supplemental Indentures...............................43
ARTICLE IX SATISFACTION AND DISCHARGE.........................................................43
SECTION 9.1 Satisfaction and Discharge of Indenture.....................................43
ARTICLE X THE TRUSTEE.........................................................................44
SECTION 10.1 Certain Duties and Responsibilities of Trustee..............................44
SECTION 10.2 Notice of Defaults..........................................................45
SECTION 10.3 Certain Rights of Trustee...................................................45
SECTION 10.4 Not Responsible for Recitals or Issuance of Bonds...........................46
SECTION 10.5 May Hold Bonds..............................................................46
SECTION 10.6 Money Held in Trust.........................................................47
SECTION 10.7 Compensation; Reimbursement; Indemnification................................47
SECTION 10.8 Eligibility.................................................................47
SECTION 10.9 Resignation and Removal; Appointment of Successor...........................47
SECTION 10.10 Acceptance of Appointment by Successor......................................48
SECTION 10.11 Merger, Conversion, Consolidation or Succession to Business.................49
SECTION 10.12 Maintenance of Offices and Agencies.........................................49
ARTICLE XI MISCELLANEOUS PROVISIONS...........................................................51
SECTION 11.1 Return of Monies Held by Trustee.........................................51
SECTION 11.2 Third Party Beneficiaries; No Rights Conferred on Others.................52
SECTION 11.3 Illegal Provisions Disregarded...........................................52
SECTION 11.4 Substitute Notice........................................................52
SECTION 11.5 Notice to the Rating Agency..............................................52
SECTION 11.6 Notices..................................................................52
iii
Page
SECTION 11.7 Successors and Assigns...................................................53
SECTION 11.8 Headings for Convenience Only............................................54
SECTION 11.9 Counterparts.............................................................54
SECTION 11.10 APPLICABLE LAW...........................................................54
SECTION 11.11 Holidays.................................................................55
SECTION 11.12 Limitation of Liability..................................................55
SECTION 11.13 Trustee Actions as Secured Party Under Intercreditor Agreement...........55
SCHEDULE I - Principal Amortization
SCHEDULE II - Major Maintenance Reserve Required Balance
EXHIBIT A - Definitions
EXHIBIT B - Form of Initial Bond
EXHIBIT C - Subordination Provisions
EXHIBIT D - Insurance Requirements
iv
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of December 10, 1999 (this
"Indenture"), by and between CLECO XXXXXXXXXX LLC, a limited liability company
organized under the laws of the State of Louisiana (the "Company"), and BANK ONE
TRUST COMPANY, N.A., a national banking association (together with its
successors in such capacity, the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has been formed for the purposes of
acquiring, improving and operating the Project (these and other capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in Exhibit A); and
WHEREAS, in furtherance of such purposes, the Company has
determined to issue its 8.82% Senior Secured Bonds due 2019 in the aggregate
principal amount of $218,600,000 (collectively, with any bonds from time to time
issued hereunder in substitution therefor, the "Initial Bonds"); and
WHEREAS, pursuant to this Indenture, the proceeds of the
Initial Bonds will be used by the Company to pay the costs associated with the
development, construction and start-up of the Project, including, without
limitation, interest during construction and pre-Completion O&M Costs; and
WHEREAS, the execution and delivery of the Initial Bonds and
of this Indenture have been duly authorized and all things necessary to make the
Initial Bonds, when executed by the Company and authenticated by the Trustee,
valid and binding legal obligations of the Company and to make this Indenture a
valid and binding legal obligation of the Company and to make this Indenture a
valid and binding agreement have been done.
NOW, THEREFORE, for and in consideration of the premises and
of the covenants herein contained and of the purchase of the Initial Bonds by
the Holders thereof, it is mutually covenanted and agreed, for the benefit of
the parties hereto and the equal and proportionate benefit of all Holders of the
Initial Bonds and any Additional Bonds hereafter issued hereunder, as follows:
ARTICLE I
DEFINITIONS; INDENTURE TO CONSTITUTE CONTRACT
SECTION 1.1 Definition; Construction. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in Exhibit A, which Exhibit A is hereby
incorporated by reference herein, and shall include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(c) all references in this Indenture to designated "Articles,"
"Sections," "Exhibits" and other subdivisions are to the designated Articles,
Sections, Exhibits and other subdivisions of this Indenture;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) unless otherwise expressly specified, any agreement,
contract or document defined or referred to herein shall mean such agreement,
contract or document as in effect as of the date hereof, as the same may
thereafter be amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof and of this Indenture and the other
Financing Documents and including any agreement, contract or document in
substitution or replacement of any of the foregoing in accordance with the terms
of this Indenture and the other Financing Documents;
(f) unless the context clearly intends to the contrary,
pronouns having a masculine or feminine gender shall be deemed to include the
other; and
(g) any reference to any Person shall include its successors
and assigns, and in the case of any Governmental Authority, any Person
succeeding to its functions and capacities.
SECTION 1.2 Equal and Ratable Benefit. The provisions,
covenants and each of the agreements herein set forth to be performed by or on
behalf of the Company shall be for the equal benefit, protection and security of
the Holders of any and all of the Bonds. All of the Bonds, regardless of the
time or times of their issuance or maturity, shall be of equal rank without
preference, priority or distinction of any of the Bonds over any other thereof
except as expressly provided in or pursuant to this Indenture.
SECTION 1.3 Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Company to the Trustee that the Trustee take any action under any
provision of this Indenture, the Company shall furnish to the Trustee (i) an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any particular application or request as to which the furnishing of
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished unless otherwise required hereby.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition;
2
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
such examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such covenant or
condition has been complied with;
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with;
(e) in the case of an Officer's Certificate of the Company, a
statement that no Default or Event of Default under this Indenture has occurred
and is continuing (unless such Officer's Certificate relates to a Default or
Event of Default); and
(f) a statement that, in the opinion of each such individual,
such opinion or certificate complies with the provisions of this Section 1.3 and
that the Trustee may rely on such certificate.
SECTION 1.4 Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel (which shall be additionally addressed to the
Trustee and the Holders of the Bonds), unless such officer knows or has reason
to believe that the certificate or opinion or representations with respect to
the matters upon which such Officer's Certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate of or representations by an
Authorized Representative of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or representations with respect to such
matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion (which shall
be additionally addressed to the Trustee and the Holders of the Bonds).
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
3
ARTICLE II
THE BONDS
SECTION 2.1 Authorization, Amount, Terms, and Issuance of
Bonds(a) . (a) Bonds may be issued hereunder from time to time. No Bonds may be
issued under this Indenture except in accordance with this Article II. The
maximum principal amount of Bonds which may be issued hereunder is not limited.
The Bonds shall be designated "Cleco Xxxxxxxxxx LLC Senior Secured Bonds" or a
substantially similar designation. The Bonds may bear such notations,
endorsements or legends as may be required to conform to usage or Law and as
incorporated or used or directed to be incorporated or used by the Company. The
Initial Bonds shall be in the form of Initial Bond set forth in Exhibit B.
(b) "Private Placement" numbers issued by S&P's CUSIP Service
Bureau may be printed on the Bonds. Neither the Company nor the Trustee shall
have any responsibility for any defect in the Private Placement number that
appears on any Bond, check, advice of payment or redemption notice, and any such
document may contain a statement to the effect that Private Placement numbers
have been assigned by an independent service for convenience of reference and
that neither the Company nor the Trustee shall be liable for any inaccuracy in
such numbers.
SECTION 2.2 Authorization and Terms of the Bonds; Payments on
the Bonds(a) . (a) The Initial Bonds to be issued under this Indenture are
hereby created. The Company may issue the Initial Bonds, in the form of Exhibit
B, upon the execution of this Indenture, and the Trustee shall, at the Company's
written request, authenticate the Initial Bonds and deliver them as specified in
the request.
(b) The Initial Bonds shall be dated as of the Closing Date,
shall be issued in the aggregate principal amount of $218,600,000 and shall have
a final maturity date of September 1, 2019 and bear interest at the rate of
8.82% per annum. Initial Bonds subsequently issued pursuant to Section 2.5(b)
hereof shall be dated as of the date of authentication thereof.
(c) The principal of, premium (if any) and interest on, each
Initial Bond shall be payable in any coin or currency of the United States of
America which, at the respective dates of payment thereof, is legal tender for
the payment of public and private debts. Subject to Section 2.2(f), payment of
principal of, premium (if any) and interest on the Initial Bonds shall be made
on the Scheduled Payment Date to the registered owner thereof at the Corporate
Trust Office against presentation of the Initial Bonds for notation of the
payment or prepayment made thereon or, in the case of a payment or prepayment
which will discharge all Debt of the Company evidenced thereby, against
surrender thereof.
(d) Interest on the Initial Bonds shall be paid semiannually
in arrears on each Scheduled Payment Date commencing March 1, 2000 and
concluding on the Final Maturity Date. Interest on the Initial Bonds shall be
computed upon the basis of a 360-day year, consisting of twelve (12) thirty
(30)-day months. The Initial Bonds shall bear interest on any overdue principal
and, to the extent enforceable under applicable law, on any overdue interest and
premium (if any) at the Default Rate.
4
(e) On each Scheduled Payment Date, commencing March 1, 2001,
principal on the Initial Bonds shall be paid in the respective principal amounts
set forth in Schedule I annexed to each Initial Bond, which amounts shall be in
the same proportion, respectively, to the amounts set forth in Schedule I hereto
as the original principal amount of such Initial Bond bears to $218,600,000,
provided that the final such payment shall in any event be sufficient to pay in
full the accrued interest on, premium, if any, and unpaid principal amount of
such Initial Bond.
(f) Notwithstanding any provision of this Indenture or the
Initial Bonds to the contrary, payments of all amounts which become due and
payable in respect of any Initial Bond shall be payable in U. S. Dollars and
shall be made by the Trustee directly to the Holder of such Initial Bond,
without surrender or presentation of such Initial Bond to the Trustee, if there
shall be filed with the Trustee a copy of an agreement between the Company and
such Holder (or the Person for whom such Holder is a nominee) providing that (1)
such payments will be so made and (2) such Holder will not sell, transfer or
otherwise dispose of such Initial Bond unless, if applicable, the date to which
payments thereon have been paid shall be noted thereon or otherwise provided to
the transferee thereof. The Trustee hereby acknowledges receipt of a copy of the
Bond Purchase Agreement in satisfaction of the foregoing provisions of this
Section in respect of the Initial Purchasers party thereto. The Trustee shall
have no responsibility regarding notations of payment by any Holder who has
entered into such an agreement and the Trustee shall be responsible only for
maintaining its records in accordance with this Indenture and absent manifest
error the records of the Trustee shall be controlling as to payments and
repayments in respect of the Initial Bonds.
(g) The Trustee is authorized to set up such funds and
accounts from time to time as may be necessary to receive and disburse funds as
provided under this Indenture.
SECTION 2.3 Additional Bonds(a) . (a) Additional Bonds may,
upon the satisfaction of the conditions set forth in this Section, be issued in
the amounts and for the purposes permitted herein. All Additional Bonds shall
rank pari passu with the Initial Bonds, shall be secured by the Collateral and
shall bear such date or dates, bear such interest rate or rates, have such
maturity dates, redemption dates and redemption premiums, be in such form, and
be issued at such prices as shall be approved in writing by the Company.
(b) Upon (i) the satisfaction of the applicable conditions set
forth in paragraph (c) of this Section 2.3, (ii) the execution and delivery of
(x) an appropriate Supplemental Indenture in compliance with paragraph (c) of
this Section 2.3, and (y) appropriate supplements to the Financing Documents (if
any), and (iii) receipt by the Securities Intermediary of an Officer's
Certificate confirming that the sum of cash and Permitted Investments in, plus,
if applicable, the available amount of any Acceptable Credit Support provided
for, the Debt Service Reserve Account shall, after giving effect to the issuance
of such Additional Bonds, be equal to the Debt Service Reserve Required Balance,
the Company shall execute Additional Bonds and deliver them to the Trustee, and
the Trustee upon the written request of the Company shall authenticate such
Additional Bonds and deliver them to the purchasers thereof as may be directed
by the Company; provided, however, that notwithstanding anything to the contrary
contained herein, no Additional Bonds may be issued hereunder (A) without the
prior written consent of the Company, and (B) at any time when a Default or
Event of Default shall have occurred and be continuing or if such issuance
would, upon notice or the passage of time, cause a
5
Default or Event of Default. Upon the issuance of any Additional Bonds, the
Company shall promptly provide the Trustee with a revised Schedule I to this
Indenture that will provide for the payment of principal of and interest on such
Additional Bonds.
(c) Additional Bonds may be issued by the Company, provided
that the following conditions are satisfied: --------
(i) such Additional Bonds shall constitute Permitted
Debt under clause (a) of the definition thereof as certified
at the time of authentication of such Additional Bonds to the
Trustee by an Authorized Officer of the Company (on which the
Trustee may conclusively rely);
(ii) no Default or Event of Default shall exist at
time of such issuance of the Additional Bonds, before and
after giving effect to such issuance, and an Authorized
Officer of the Company so certifies to the Trustee;
(iii) all of the net proceeds of such Additional Bonds
shall be used by the Company to fund or refinance capital
improvements described in subclause (A), (B), (C) or (D) of
clause (a) of Section 5.18, in each case as certified at the
time of authentication of such Additional Bonds to the Trustee
by an Authorized Officer of the Company;
(iv) the Trustee shall have received an Opinion of
Counsel reasonably satisfactory to the Trustee as to such
matters as the Trustee may request (on which the Trustee may
conclusively rely);
(v) there shall have been delivered to the Trustee the
certifications and other information, if any, required by this
Section 2.3(c) (on which the Trustee may conclusively rely);
and
(vi) there shall be established in one or more
Supplemental Indentures, prior to the issuance of Additional
Bonds of any series:
(A) the title of the Additional Bonds of such series
(which shall distinguish the Additional Bonds of such series
from all other Bonds) and the form or forms of Additional
Bonds of such series;
(B) any limit upon the aggregate principal amount of the
Additional Bonds of such series that may be authenticated and
delivered under this Indenture and the Supplemental Indenture
(except for Additional Bonds authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu
of, other Additional Bonds of such series and except for Bonds
that are deemed never to have been authenticated and delivered
hereunder or under the Supplemental Indenture);
(C) the date or dates on which the principal of the
Additional Bonds of such series is payable, the amounts of
principal payable on such date or dates; and the date or dates
on or as of which the Additional Bonds of such series shall be
dated;
6
(D) the rate or rates at which the Additional Bonds of
such series shall bear interest, or the method by which such
rate or rates shall be determined, the date or dates from
which such interest shall accrue, the interest payment dates
on which such interest shall be payable, and the basis of
computation of interest;
(E) the place or places where (x) the principal of,
premium, if any, and interest on Additional Bonds of such
series shall be payable, (y) Additional Bonds of such series
may be surrendered for registration of transfer or exchange
and (z) notices and demands to or upon the Company in respect
of the Additional Bonds of such series and this Indenture or
the Supplemental Indenture may be served;
(F) the price or prices at which, the period or periods
within which and the terms and conditions upon which
Additional Bonds of such series may be redeemed, in whole or
in part, at the option of the Company;
(G) the obligation, if any, of the Company to redeem,
purchase or repay Additional Bonds of such series pursuant to
any sinking fund or analogous provision or at the option of a
Holder thereof and the price or prices at which, the period or
periods within which and the terms and conditions upon which
Additional Bonds of such series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligations;
(H) the denominations in which Additional Bonds of such
series shall be issuable;
(I) the restrictions or limitations, if any, on the
transfer or exchange of the Additional Bonds of such series;
(J) any other terms of such series (which terms shall not
contravene the provisions of this Indenture); and
(K) any trustees, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to the
Additional Bonds of such series.
SECTION 2.4 Registered Holders Deemed Holders. The Company and
the Trustee may deem and treat the Person in whose name any Bond shall be
registered as provided in Section 2.5 as the absolute owner and holder of such
Bond for the purpose of receiving payment of all amounts payable with respect to
such Bond and for all other purposes, and the Company and the Trustee shall not
be affected by any notice to the contrary.
SECTION 2.5 Register; Registration of Bonds; Transfer and
Exchange(a) . (a) The Company shall cause to be kept a register (herein
sometimes referred to as the "Bonds Register") in which the registration of
Bonds of each series and the registration of transfers and exchanges of
registered Bonds shall be entered. The Bonds Register shall be kept at the
Corporate Trust Office of the Trustee, and the Trustee is hereby appointed
"Registrar" for the
7
purpose of registering Bonds and transfers and exchanges of Bonds as herein
provided. Upon surrender for transfer of any Bonds at the Corporate Trust Office
of the Trustee, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Bonds of the same series and in a like aggregate principal amount. At
the option of the Holder thereof, Bonds may be exchanged for other Bonds of the
same series and in a like aggregate principal amount upon surrender of the Bonds
to be exchanged at the Corporate Trust Office. Every Bond presented or
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Registrar or any transfer agent, duly executed by
the Holder thereof or such Holder's attorney duly authorized in writing.
Whenever any Bonds are so surrendered for exchange the Company shall execute,
and the Trustee shall authenticate and deliver, the Bonds which the Holder
making the exchange is entitled to receive. All Bonds issued upon any transfer
or exchange of any Bonds shall be the same valid obligation, and entitled to the
same security and benefits under this Indenture, as the Bonds surrendered upon
such transfer or exchange. The Trustee shall make a notation on each new Bond of
the amount of all payments of principal previously made on the old Bond or Bonds
with respect to which such new Bond is issued and the date to which interest on
such old Bond or Bonds has been paid.
(b) All Bonds delivered in transfer or exchange shall be dated
pursuant to Section 2.2(b) hereof so that neither gain nor loss in interest
shall result from the transfer or exchange. No service charge shall be made for
any exchange or transfer, but the Company or the Trustee, as the case may be,
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto.
(c) Each Bond (and all Bonds issued in exchange therefor or
substitution thereof), shall bear the legend in substantially the form set forth
in the form of Initial Bond attached hereto as Exhibit B.
(d) New Bonds delivered upon any transfer or exchange shall be
valid obligations of the Company, evidencing the same debt as the Bonds
surrendered, shall be secured by this Indenture and shall be entitled to all of
the security and benefits of the Indenture to the same extent as the Bonds
surrendered.
SECTION 2.6 Execution(a) . (a) The Bonds shall be executed by
the manual or facsimile signature of the Chairman of the Board, the Chief
Executive Officer, the President or any Senior Vice President or Vice President
of the Company.
(b) Bonds executed as provided in clause (a) above shall be
issued and shall be authenticated by the Trustee upon the written direction of
the Company (upon which the Trustee may exclusively rely), notwithstanding that
any officer signing such Bonds or whose facsimile signature appears thereon
shall have ceased to hold office at the time of issuance or authentication or
shall not have held office at the date of the Bond.
SECTION 2.7 Authentication. No Bond shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose until a
certificate of authentication in the form set forth on Exhibit B shall have been
duly executed by the Trustee. Such authentication
8
shall be conclusive proof that such Bond has been duly authenticated and
delivered under this Indenture and that the Holder thereof is entitled to the
benefit of the trust hereby created. The Trustee shall, at the written request
of the Company, authenticate the Bonds at the initial issuance thereof and
deliver them to the purchasers thereof upon payment to the Trustee of the
purchase price therefor.
ANY BONDS SUBSEQUENTLY ISSUED UNDER THIS INDENTURE MAY BE
AUTHENTICATED BY THE TRUSTEE OR ANY AUTHENTICATING AGENT APPOINTED BY THE
TRUSTEE, AND SUCH AUTHENTICATION SHALL, FOR ALL PURPOSES OF THIS INDENTURE, BE
DEEMED TO BE THE AUTHENTICATION OF AND DELIVERY BY THE TRUSTEE.
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Bonds(a) .
(a) If any Bond shall become mutilated, destroyed, lost or stolen, the Company
shall, subject to the satisfaction of applicable conditions contained in this
Section 2.8(a), upon the written request of the registered Holder of a Bond,
execute, and the Trustee shall authenticate and deliver, in replacement thereof
a new Bond of the same series and of like tenor, payable in like principal
amount and dated the same date as the Bond so mutilated, destroyed, lost or
stolen. If the Bond being replaced has been mutilated, it shall be surrendered
at the Corporate Trust Office. If the Bond being replaced has been destroyed,
lost or stolen, the Holder of such Bond shall furnish to the Company and the
Trustee such reasonable security or indemnity as may be required by them to save
the Company and the Trustee harmless, together with evidence satisfactory to the
Company and the Trustee and their respective agents of the destruction, loss or
theft of such Bond and the ownership and authentication thereof; provided,
however, that if the Holder of such Bond is an Initial Purchaser or an
institutional investor with a net worth of not less than $100,000,000, the
written undertaking of such Holder delivered to the Company and the Trustee
shall be sufficient security and indemnity and the written statement of such
Holder to such effect shall be satisfactory evidence of the destruction, loss or
theft of such Bond and the ownership thereof. The cost of providing any
substitute Bond under the provisions of this Section shall be borne by the
Holder for whose benefit such substitute Bond is provided. If, after the
delivery of such new Bond, a bona fide purchaser of the original Bond in lieu of
which such new Bond was issued presents for payment such original Bond, the
Company, the Registrar and the Trustee shall be entitled to recover such new
Bond for the Person to whom it was delivered or any Person taking therefrom,
except a bona fide purchaser, and in any case shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Company, the Registrar or the Trustee in
connection therewith.
(b) Every substitute Bond issued pursuant to this Section 2.8
shall constitute an additional contractual obligation of the Company, whether or
not the Bond alleged to have been destroyed, lost or stolen shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Bonds duly issued
hereunder.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by Law,
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Bonds, and shall preclude any and all other rights or remedies.
9
SECTION 2.9 Cancellation and Destruction of Surrendered Bonds.
Bonds surrendered for payment, or exchanged and surrendered to the Trustee for
cancellation by the Company, shall be cancelled and destroyed by the Trustee.
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.1 Optional Redemption. At any time the Bonds or any
series of the Bonds may be redeemed at the election of the Company, as a whole
or, after Completion, in part, at any time on any Business Day, at the option of
the Company, at par plus in the case of the Initial Bonds accrued interest to
but excluding the date of redemption plus a Make-Whole Premium specified in the
form of Initial Bond attached hereto as Exhibit B. Any redemption of less than
all of the Bonds pursuant to this Section 3.1 shall be pro rata among all of the
series of Bonds Outstanding at such time, and any redemption of less than all of
the Bonds of any series pursuant to this Section 3.1 shall be pro rata among all
of the Bonds of such series Outstanding at such time.
SECTION 3.2 Election or Requirement to Redeem; Notice to
Trustee. If the Company elects or is required to redeem any Bonds pursuant to
this Indenture or otherwise, it shall, except to the extent that the Trustee is
required to select the Redemption Date pursuant to Section 3.3(a), at least
thirty (30) days prior to the date upon which notice of redemption is required
to be given to the Holders pursuant to Section 3.4 hereof (unless a shorter
notice period shall be satisfactory to the Trustee, provided that the Trustee
shall be under no obligation to agree to a shorter period), deliver to the
Trustee and the Securities Intermediary an Officer's Certificate, specifying the
date on which such redemption shall occur (the "Redemption Date") as determined
in accordance with this Article III and the series and the principal amount of
Bonds to be redeemed. Upon receipt of any such Officer's Certificate, the
Trustee shall establish a non-interest bearing special purpose trust fund (the
"Redemption Fund") into which shall be deposited by the Company, the Securities
Intermediary, the Collateral Agent or any other Person, as the case may be, not
later than one (1) Business Day prior to the Redemption Date, immediately
available funds to be held by the Trustee and applied to the redemption of such
Bonds on the Redemption Date. The Redemption Fund shall at all times be in the
exclusive possession of, and under the exclusive dominion and control of, the
Trustee.
SECTION 3.3 Mandatory Redemption; Selection of Bonds to Be
Redeemed(a) . (a) All or a portion of the Bonds shall be redeemed, prior to
maturity, at a Redemption Price equal to par plus accrued interest to and
including the date of redemption, in the following circumstances:
(A) (a) if the Company receives Loss Proceeds in excess of
$5,000,000 in connection with a Loss Event and determines not
to, or cannot, restore the Project to permit operation on a
commercially feasible basis, in which case all of the Loss
Proceeds received will (subject to the terms of the
Intercreditor Agreement) be applied to the mandatory
redemption of Bonds (any such redemption being referred to as
a "Loss Event Redemption"), and (b) if the Company receives
Loss Proceeds in connection with a Loss
Event and more than
10
$5,000,000 of such Loss Proceeds remain after the Company uses
a portion of such Loss Proceeds to restore the Project to
permit operation on a commercially feasible basis, in which
case all remaining Loss Proceeds will (subject to the terms of
the Intercreditor Agreement) be applied to the mandatory
redemption of Bonds (any such redemption being referred to as
an "Excess Loss Proceeds Redemption");
(B) (a) if the Company receives Title Insurance Proceeds
in excess of $5,000,000 in connection with a Title Defect and
determines not to, or cannot, correct such Title Defect to
permit operation of the Project on a commercially feasible
basis, then all of the Title Insurance Proceeds received will
(subject to the terms of the Intercreditor Agreement) be
applied to the mandatory redemption of Bonds (any such
redemption a "Title Event Redemption"), and (b) if the Company
receives Title Insurance Proceeds in connection with a Title
Defect and more than $5,000,000 of such Title Insurance
Proceeds remain after the Company uses a portion of such Title
Insurance Proceeds to correct such Title Defect to permit
operation of the Project on a commercially feasible basis, in
which case all remaining Title Insurance Proceeds will
(subject to the terms of the Intercreditor Agreement) be
applied to the mandatory redemption of Bonds (any such
redemption an "Excess Title Proceeds Redemption");
(C) the Company receives performance liquidated damages
pursuant to the EPC Contract and more than $5,000,000 of such
performance liquidated damages remain after application
thereof to an Approved Completion Plan (if any) ("Buydown
Damages"), in which case such remaining performance liquidated
damages will (subject to the terms of the Intercreditor
Agreement) be applied to the mandatory redemption of Bonds;
(D) the Company (a) fails to cause the Project to achieve
Completion on or prior to the Guaranteed Completion Date or
(b) abandons the construction of the Project (any such event a
"Non-Completion Event"), in which case the Company will be
required to redeem all of the Outstanding Bonds unless, in the
case of clause (a), the Rating Agency confirms in writing that
such failure will not result in the Bonds being rated lower
than "Baa3" by the Rating Agency; and
(E) the Company receives a payment of damages pursuant to
Paragraph 1(ii) of the Tolling Guaranty upon a termination of
the Tolling Agreement for cause by the Company (any such
payment a "Tolling Agreement Damages Payment"), in which case
such payment will (subject to the terms of the Intercreditor
Agreement) be applied to the mandatory redemption of Bonds.
The Redemption Date shall be: (i) in the case of a Loss Event
Redemption, any date selected by the Trustee during the 10-day period following
the date on which Loss Proceeds in excess of $5,000,000 are received by the
Collateral Agent on behalf of the Company; (ii) in the case of an Excess Loss
Proceeds Redemption, any date selected by the Trustee during the 10-day period
following the date on which the Company establishes that there are Loss Proceeds
in excess of $5,000,000 remaining in the Loss Proceeds Sub-account following
completion of any
11
rebuilding, repairing, or restoring of the Project; (iii) in the case of a Title
Event Redemption, any date selected by the Trustee during the 10-day period
following the date on which such Title Proceeds in excess of $5,000,000 are
received by the Collateral Agent on behalf of the Company; (iv) in the case of
an Excess Title Proceeds Redemption, any date selected by the Trustee during the
10-day period following the date on which the Company establishes that there are
Title Insurance Proceeds in excess of $5,000,000 in the Title Defect Sub-account
following completion of curing the Title Defect, (v) in the case of Buydown
Damages, following application of the performance liquidated damages giving rise
to such Buyout Damages to an Approved Completion Plan (if applicable), any date
selected by the Trustee during the 10-day period following the date on which
such Buydown Damages are received by the Collateral Agent on behalf of the
Company, (vi) in the case of a Non-Completion Event, any date selected by the
Trustee during the 10-day period following the date of occurrence of such
Non-Completion Event and (vii) in the case of a Tolling Agreement Damages
Payment, any date selected by the Trustee during the 10-day period following the
date on which such Tolling Agreement Damages Payment is received by the
Collateral Agent on behalf of the Company.
(b) Within thirty (30) days of the occurrence of any Change of
Control, the Company shall provide written notice of such Change of Control (a
"Change of Control Notice") to the Trustee, which Change of Control Notice shall
contain an offer by the Company to redeem from each Holder, on the Redemption
Date specified in such Change of Control Notice (which shall be not less than 30
days nor more than 60 days after the date of such Change of Control Notice) all
of the Outstanding Bonds held by each Holder at a Redemption Price equal to 101%
of the principal amount of the Outstanding Bonds held by such Holder plus
accrued and unpaid interest on the principal amount of such Outstanding Bonds to
and including such Redemption Date. Upon receipt thereof, the Trustee shall
immediately forward such Change of Control Notice to the Holders in accordance
with the terms of this Indenture. The offer contained in such Change of Control
Notice shall be deemed to lapse as to any Holder whose affirmative reply in
writing shall not have been received by the Trustee within 15 days of the date
on which the Company provided such Change of Control Notice to the Trustee.
Within 10 (ten) days after any such affirmative reply by a Holder, the Company
shall pay to the Trustee for deposit in the Redemption Fund an amount of funds
sufficient to redeem the Outstanding Bonds subject to such request in accordance
with this clause (b). The Trustee shall apply all such funds received by it to
the redemption of the Outstanding Bonds pursuant to this Section 3.3(b) on the
Redemption Date in accordance with written allocation instructions from the
Company provided to the Trustee in accordance with the notice provisions set
forth in this Article III. The Company will not be required to make an offer to
redeem Bonds upon the occurrence of any Change of Control pursuant to this
Section 3.3(b) if another Person makes such offer at the same purchase price, at
the same times and otherwise in substantial compliance with the requirements of
this Section 3.3(b) and such Person purchases all Bonds validly tendered and not
withdrawn under such offer in accordance with the terms of such offer.
(c) If Cleco makes a Default Equity Contribution, the Company
shall, upon receipt of such Default Equity Contribution, provide written notice
thereof (a "Default Equity Contribution Notice") to the Trustee, which Default
Equity Contribution Notice shall specify the amount of such Default Equity
Contribution and shall contain an offer by the Company to redeem from each
Holder, on the Redemption Date specified by the Company in such Default Equity
Contribution Notice (which shall be not less than 30 nor more than 60 days after
the date
12
of such notice), a principal amount of the Initial Bonds held by such Holder
equal to such Holder's pro-rata share of such Default Equity Contribution at par
plus accrued interest. Upon receipt thereof, the Trustee shall immediately
forward such notice to the Holders in accordance with the terms of this
Indenture. The offer contained in such notice shall be deemed to lapse as to any
Holder whose affirmative reply in writing shall not have been received by the
Trustee within 15 days of the date on which the Company provided such Default
Equity Contribution Notice to the Trustee. On the Redemption Date specified by
the Company in such Default Equity Contribution Notice, the Company shall make a
mandatory redemption of a principal amount of the Initial Bonds held by each
Holder which has affirmatively replied to such Default Equity Contribution
Notice, such mandatory redemption to be of a principal amount of Bonds held by
such Holder equal to such Holder's pro-rata share of such Default Equity
Contribution at par plus accrued interest to and including the Redemption Date.
(d) Upon any partial mandatory redemption of the Bonds in
accordance with this Section 3.3, each payment remaining in the scheduled
principal amortization of the Bonds as set forth on Schedule I hereto shall be
reduced by an amount equal to the product of (x) such scheduled principal
amortization of the Bonds then in effect, multiplied by (y) a fraction, the
numerator of which is equal to the principal amount of the Outstanding Bonds to
be redeemed and the denominator of which is the principal amount of the
Outstanding Bonds immediately prior to such redemption.
(e) If less than all the Bonds are to be redeemed pursuant to
clause (a) of this Section 3.3, the Bonds shall be redeemed ratably by the
Trustee from the Outstanding Bonds not previously called for redemption in
whole.
(f) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Bonds shall
relate, in the case of any Bonds redeemed or to be redeemed only in part, to the
portion of the principal amount of such Bonds that has been or is to be
redeemed.
SECTION 3.4 Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 11.6 hereof to the Holders of Bonds
of such series to be redeemed at least thirty (30) days but not more than sixty
(60) days prior to the Redemption Date. All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the new scheduled principal amortization of the Bonds, as
reflected in a revised Schedule I hereto;
(d) if less than all Outstanding Bonds are to be redeemed, the
principal amount of the Bonds held by each Holder to be redeemed;
(e) in the case of Bonds to be redeemed in part, if requested
by the Holder thereof, the principal amount of such Bonds to be redeemed and
that after the Redemption Date
13
upon surrender of such Bonds, new Bonds in the aggregate principal amount equal
to the unredeemed portion thereof will be issued;
(f) that Bonds called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(g) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Bond or portion thereof, and that (unless
the Company shall default in payment of the Redemption Price) interest thereon
shall cease to accrue on and after said date;
(h) that the availability in the Redemption Fund on the
Redemption Date of an amount of immediately available funds to pay the
Redemption Price in full is a condition precedent to the redemption; and
(i) the paragraph of the Bonds or the Indenture pursuant to
which the Bonds are being redeemed.
Notice of redemption of Bonds to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company. Notice of
a mandatory redemption of the Bonds shall be given by the Trustee, in the name
and at the expense of the Company.
With respect to mandatory redemption pursuant to Section 3.3
hereof, notice of redemption may be given by the Trustee prior to receipt of
funds sufficient to pay the Redemption Price.
Failure to give notice of redemption in the manner provided in
Section 11.6 or any defect in such notice to the Holder of any Bond designated
for redemption in whole or in part shall not affect the validity of the notice
to any other Holder.
SECTION 3.5 Bonds Payable on Redemption Date. If notice of
redemption is given in accordance with this Article III, and the conditions, if
any, set forth in such notice have been satisfied, the Bonds or portions thereof
to be redeemed shall become due and payable on the Redemption Date, and (unless
the Company shall default in payment of the Redemption Price) from and after
such date such Bonds or portions thereof shall cease to bear interest.
SECTION 3.6 Bonds Redeemed in Part. At the option of any
Holder thereof, any Bond that is to be redeemed only in part may be surrendered
at the place of payment therefor (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 attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Bond, without service charge, a new Bond or Bonds of the same series, in
denominations of $100,000 or any multiple thereof as may requested (plus, if
applicable, one Bond in such other denomination as may be requested by such
Holder) and of like tenor and in aggregate principal amount equal to and in
exchange for the remaining unpaid principal amount of the Bond so surrendered.
14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Trustee as of the
date of issuance of the Bonds:
SECTION 4.1 Organization, Power and Status of the Company. The
Company (a) is a limited liability company duly organized and validly existing
under the laws of the State of Louisiana and (b) is duly qualified and in good
standing, if applicable, as a foreign limited liability company or other limited
liability entity in each jurisdiction where the nature of its activities makes
such qualification necessary. The Company has all requisite limited liability
company power and authority to carry on its business as now being conducted and
as proposed to be conducted.
SECTION 4.2 Authorization; Enforceability; Execution and
Delivery(a) . (a) The Company has all necessary limited liability company power
and authority to execute, deliver and perform its obligations under this
Indenture, the Bonds and each other Transaction Document to which it is a party.
(b) All action on the part of the Company that is required for
the authorization, execution, delivery and performance of this Indenture, the
Bonds and each other Transaction Document to which the Company is a party has
been duly and effectively taken, and the execution, delivery and performance of
this Indenture, the Bonds and each other Transaction Document to which it is a
party does not require the approval or consent of any holder or trustee of any
debt or other obligations of the Company, except such approvals or consents as
have been duly obtained and are in full force and effect.
(c) This Indenture, the Bonds and each other Transaction
Document to which the Company is a party have been duly authorized, executed and
delivered by the Company. Each of this Indenture, the Bonds and each other
Transaction Document to which the Company is a party constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with the terms hereof and thereof, except as the enforceability
thereof may be limited by bankruptcy, insolvency, or similar laws affecting
creditors' rights generally, and subject to general principles of equity.
SECTION 4.3 No Conflicts; Laws and Contracts; No Default;
Representations and Warranties(a). (a) Neither the execution, delivery and
performance of this Indenture, the Bonds or each other Transaction Document to
which the Company is a party, nor the consummation of any of the transactions
contemplated hereby or thereby (i) contravenes any provision of Law applicable
to the Company or any of the Collateral, (ii) conflicts or is inconsistent with
or constitutes a default under or results in the acceleration of (x) any
obligation under the Certificate of Limited Liability Company, Operating
Agreement or other constituent documents of the Company or (y) any terms of any
other Transaction Document or any other agreement or instrument to which the
Company is a party or by which the Company or any of its property or assets is
bound or to which the Company may be subject except any such conflict,
inconsistency, default or violation which, individually or in the aggregate,
could not reasonably
15
be expected to result in a Material Adverse Effect or (iii) results in the
creation or imposition of (or the obligation to create or impose) any Liens
(other than Permitted Liens) on the Collateral.
(b) The Company is in compliance with any and all Laws
applicable to it, except any such noncompliance which, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.4 Governmental Approvals. All Governmental Approvals
which are required to be obtained by, in the name of or on behalf of the Company
in connection with (a) the issuance of the Bonds (b) the execution, delivery and
performance by the Company of the Transaction Documents to which the Company is
a party and (c) the construction and the operation of the Project have been duly
obtained or made, were validly issued and are in full force and effect, other
than any such Governmental Approvals the failure of which to obtain,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No event has occurred which permits, or after notice
or lapse of time or both would permit, the revocation or termination of any of
the foregoing Governmental Approvals. The Company does not have knowledge of any
fact that is likely to result in the denial of an application or renewal, or the
revocation, modification, nonrenewal or suspension of any of the foregoing
Governmental Approvals.
SECTION 4.5 Litigation. There are no claims, actions, suits,
investigations or proceedings at law or in equity (including any Environmental
Claims) or by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of the Company, threatened against the Company or
any property or other assets or rights of the Company which (a) question the
validity of any Transaction Document or any action taken or to be taken pursuant
to or in connection with any Transaction Document or (b) could reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.6 Utility Regulation. The Company is not subject to
regulation by any Governmental Authority under PUHCA as a "public utility
company" or an "affiliate" or "subsidiary company" of a "registered holding
company" or a company subject to registration under PUHCA.
SECTION 4.7 Environmental Matters(a) . (a) The Project is in
compliance with all existing applicable Environmental Laws, except any such
noncompliance which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
(b) To the Company's knowledge, there are no existing facts,
circumstances or conditions which could under any existing Environmental Law,
individually or in the aggregate with all other circumstances or conditions,
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.8 Employee Benefit Plans. Except to the extent that
the following could not reasonably be expected to result in a Material Adverse
Effect, each Plan (including without limitation each Plan of a Commonly
Controlled Entity) as to which the Company may have any liability complies in
all material respects with all applicable requirements of Law and regulations,
and (i) no "reportable event" (as defined in Section 4043 of
16
ERISA (other than an event for which a 30-day notice requirement has been waived
by the PBGC) has occurred with respect to any such Plan, (ii) there has been no
withdrawal from any Multiemployer Plan or steps taken to do so, (iii) no Plan
has been terminated or has commenced to be terminated other than in a "standard
termination" under Section 4041(b) of ERISA, (iv) no contribution failure has
occurred with respect to any Plan sufficient to give rise to a lien under
Section 302(f) of ERISA or Section 412 of the Code and (v) no condition exists
or event or transaction has occurred with respect to any Plan, in each case,
that could reasonably be expected to result in a Material Adverse Effect.
SECTION 4.9 Business of the Company. The Company is a special
purpose limited liability company and is not and has not engaged in any
activities other than those incident to its organization, acquisition,
improvement and operation of the Project, the offering of the Bonds, and
transactions related thereto.
SECTION 4.10 Investment Company Act. The Company is not, and
following the issuance and sale of the Bonds, will not be, an "investment
company" or, to the knowledge of the Company, an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended.
SECTION 4.11 Zoning. The construction, operation and use of
the Project as an electric generating facility complies, and upon the completion
of construction shall comply, with all Laws (if any) relating to zoning
including, without limitation, those relating to use, height, setback lines,
building coverage and gross floor area of building space.
ARTICLE V
COVENANTS
SECTION 5.1 Payment of Principal of and Interest on Bonds. The
Company shall promptly pay or cause to be paid the principal of, premium (if
any) and interest on every Bond issued hereunder according to the terms hereof
and thereof.
SECTION 5.2 Reporting Requirements. The Company shall deliver
to the Trustee (and the Trustee shall deliver copies to any Holder of an Initial
Bond and, upon written request, which may be a continuing request, to any Holder
of an Additional Bond), the Collateral Agent, the Rating Agency and, with
respect to clauses (f), (h), (i) and (j) only (and, in the case of clause (j),
only with respect to amendments and supplements to the Project Documents which
are material) the Independent Engineer:
(a) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, unaudited
quarterly financial statements of the Company;
(b) within 90 days after the end of each fiscal year of the
Company, audited annual financial statements of the Company;
(c) at the time of delivery of the financial statements
described in clauses (a) and (b) above, a certificate of an
Authorized Officer of the Company on behalf of the
17
Company to the effect that (i) the Company is in compliance with all of its
material obligations under the terms of the Transaction Documents, and (ii) no
Default or Event of Default known to the Company has occurred and is continuing
or, if any Default or Event of Default known to the Company has occurred and is
continuing, specifying the nature and extent thereof and what action the Company
is taking or proposes to take in response thereto;
(d) promptly and in any event within ten days after an
Authorized Officer of the Company obtains actual knowledge thereof, notice of
the occurrence of any event or condition which constitutes a Default or an Event
of Default, describing such event or condition and any action that the Company
is taking or proposes to take with respect thereto;
(e) promptly and in any event within ten days after an
Authorized Officer of the Company obtains actual knowledge thereof, notice of
any litigation, arbitration or other governmental proceeding against the Company
or with respect to any Transaction Document to which the Company is a party
which, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;
(f) promptly and in any event within ten days after an
Authorized Officer of the Company obtains knowledge thereof, notice of the
occurrence of any Loss Event or Title Defect, describing such Loss Event or
Title Defect, as the case may be, and any action that the Company is taking or
proposes to take with respect thereto;
(g) copies of material notices delivered in connection with
the Project Documents;
(h) until the Project has achieved Completion, within 30 days
after the end of each fiscal quarter of the Company, a quarterly construction
report describing the progress of the Project's construction and the expenditure
of funds in connection therewith;
(i) within 30 days after the end of each fiscal year of the
Company occurring after the Project has achieved Completion (including the year
in which Completion occurs), an annual operation and maintenance report for the
Project;
(j) all amendments and supplements to the Project Documents;
(k) notice of any pending Environmental Claim against the
Company which could reasonably be expected to result in a Material Adverse
Effect; and
(l) within 45 days after the end of each fiscal year of the
Company, an Officer's Certificate of the Company (i) confirming that all
insurance policies required pursuant to Section 5.6 are in full force and effect
on the date thereof, (ii) confirming the names of the companies issuing such
policies, (iii) confirming the amounts and expiration dates of such policies,
(iv) including evidence of payment of all premiums or other amounts due on such
insurance policies during such fiscal year and (v) stating that such policies
comply with the requirements of the Financing Documents. The Trustee may
18
conclusively rely upon any Officer's Certificate delivered pursuant to this
clause (l) and shall have no responsibility to examine any policies referred to
therein to determine compliance with the provisions of this Indenture.
SECTION 5.3 Limited Liability Company Existence. The Company
shall at all times preserve and maintain (a) its existence as a limited
liability company under the laws of the State of Louisiana, (b) its
qualification to do business and good standing, if applicable, in each other
jurisdiction in which the character of its properties or the nature of its
activities makes such qualification necessary and (c) its rights, powers,
privileges and franchises, except, in the case of clauses (b) and (c) where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.4 Compliance with Laws. The Company shall comply
with all applicable Laws, except where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 5.5 Governmental Approvals; EWG Status(a) . (a) The
Company shall obtain, maintain and comply with all Governmental Approvals
necessary for (i) the issuance of the Bonds, (ii) the ownership, construction
and operation of the Project and (iii) the execution, delivery and performance
of its obligations under the Transaction Documents to which it is a party,
except, in the case of clauses (ii) and (iii), where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.
(b) The Company shall maintain the Project as an Eligible
Facility owned by an Exempt Wholesale Generator.
SECTION 5.6 Insurance. For all periods both prior to and after
completion of construction of the Project, the Company shall maintain or cause
to be maintained insurance as is generally carried by companies engaged in
similar businesses during such respective periods and owning similar properties
in the same general area and financed in the same general manner. As of the
Closing Date, the Company has in place the insurance set forth in Exhibit D. In
the event the Company desires to maintain insurance that is materially different
than the type and amounts of insurance set forth in Exhibit D, the Company shall
provide to the Trustee a certificate of the Insurance Consultant stating that
the criteria set forth in the first sentence of this Section 5.6 will be met by
the Company. All insurance maintained by the Company pursuant to this Section
5.6 shall (i) name the Trustee, the Collateral Agent and the Company, in the
case of all liability policies, as insureds, and in all other cases, as loss
payees, as their interests may appear; (ii) provide that all insurance proceeds
shall be payable to the Collateral Agent; (iii) include effective waivers by the
insurer of all claims for insurance premiums against the Trustee, the Collateral
Agent and the Holders; (iv) provide that any losses shall be payable
notwithstanding (A) any foreclosure or other proceedings or notice of sale
relating to the Facility or (B) any change in title to or ownership of the
Facility; and (v) provide that no cancellation thereof shall be effective until
at least 30 days after receipt by the Collateral Agent and the Trustee of
written notice thereof.
SECTION 5.7 Payment of Taxes and Claims. The Company shall,
prior to the time penalties attach thereto, pay and discharge, or cause to be
paid and discharged, all taxes,
19
assessments, claims and governmental charges or levies imposed upon it, its
assets or property or its income or profits; provided that the Company shall not
be required to pay any such obligation if the same is being diligently contested
in good faith by appropriate proceedings and adequate cash reserves are
established in accordance with GAAP.
SECTION 5.8 Books and Records. The Company shall at all times
keep proper books and records of all of its business and financial affairs in
accordance with GAAP.
SECTION 5.9 Right of Inspection. The Company shall permit the
Trustee, the Collateral Agent, the Securities Intermediary, the Independent
Engineer or any duly authorized agents or representatives of any of the
foregoing, from time to time during normal business hours, (i) to conduct
reasonable inspections and examinations of the records, assets and property of
the Company and (ii) to discuss the affairs, finances and accounts of the
Company with the principal officers of the Company, all upon reasonable notice
and at such reasonable times as the Trustee, the Collateral Agent, the
Securities Intermediary or the Independent Engineer may desire, provided,
however, that, in the absence of a specific instruction to the contrary from the
Required Holders, this right shall not be deemed to be a duty or responsibility
of the Trustee, the Collateral Agent or the Securities Intermediary.
SECTION 5.10 Maintenance of Property and Security(a) . (a) The
Company (i) shall use, maintain and operate the Project and the site thereof in
material compliance with prudent industry practice, all applicable laws and
Governmental Approvals and the Project Documents and (ii) shall preserve and
maintain (except as otherwise specifically contemplated or permitted pursuant to
the Mortgage) (x) good and marketable title to or valid leasehold or other
rights to or in the Project, the site of the Project and all other Collateral
owned by it (subject only to Permitted Liens) and (y) a valid and subsisting
grant of all easements, licenses, franchises, rights of way and similar
non-possessory real property interests necessary for the construction and
operation of the Project and the use of the site of the Project.
(b) The Company shall take or cause to be taken all acts
reasonably required to maintain and preserve the Liens purported to be created
by the Security Documents. The Company shall from time to time execute, or cause
to be executed, any and all further instruments (including financing statements,
continuation statements and similar statements) reasonably required to maintain
and preserve the Liens purported to be created by the Security Documents.
(c) In the event the Project or the Land shall become subject
to any zoning Laws, the Company shall not, without the Trustee's prior written
consent, use or permit the use of the Project or the Land in a manner which
would result in such use becoming a nonconforming use under such zoning Laws.
SECTION 5.11 Performance of Transaction Documents;
Construction of the Project(a) . (a) The Company shall (i) perform all of its
obligations and covenants contained in the Transaction Documents to which it is
a party, (ii) enforce, defend and protect all of its rights contained in such
Transaction Documents and (iii) take all actions necessary to prevent the
termination or cancellation of any such Transaction Documents, except in each
case where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
20
(b) The Company shall cause the construction of the Project to
be completed in a timely manner and in accordance with prudent industry
practice, all applicable Laws and Governmental Approvals and the Project
Documents.
SECTION 5.12 Rule 144A Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of any Holder of the Bonds, the Company shall promptly furnish to such
Holder or to a prospective purchaser of a Bond designated by such Holder, or
beneficial owner the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
SECTION 5.13 Project Revenues. The Company shall deposit all
revenues received by it into the Revenue Account and shall irrevocably instruct
all Project Parties that make payments to the Company under the Project
Documents to deposit such payments into the Revenue Account.
SECTION 5.14 Independent Engineer. The Company shall permit
the Independent Engineer to (a) inspect the Project upon reasonable notice and
(b) witness and verify the performance tests under the EPC Contract. SECTION
5.15 Annual Operating Budget(a). (a) Not less than 30 days prior to (a) the date
on which the Project is expected to commence commercial operation, and
thereafter (b) the commencement of each fiscal year of the Company, the Company
shall submit to the Independent Engineer a proposed operating budget, detailed
by month (an "Annual Operating Budget"). The first Annual Operating Budget shall
cover the period from the date of commencement of commercial operation through
the end of the fiscal year in which commercial operation occurs or, if such
period consists of less than 6 months, through the end of the immediately
succeeding fiscal year. Each Annual Operating Budget (other than the first
Annual Operating Budget referred to above) shall be, in all material respects,
consistent with the provisions of the Project Documents and shall specify the
Company's good faith estimate of sales of power from the Project, the rates and
revenues for such sales, all O&M Costs and working capital requirements, all
major maintenance costs, a forecast of personnel to operate and maintain the
Project and a periodic inspection, maintenance and repair schedule. To the
extent the Independent Engineer shall have provided its comments, if any, to the
Company within 30 days of the Independent Engineer's receipt of the proposed
Annual Operating Budget, the Company shall reasonably consider such comments in
its preparation of a final Annual Operating Budget, which shall then be provided
to the Trustee, the Collateral Agent, the Independent Engineer and the Rating
Agency. The Trustee and the Collateral Agent shall have no responsibility to
review or approve the Annual Operating Budget. SECTION 5.16 Use of Proceeds. The
Company shall use the net proceeds of the Bonds only to pay Project Costs.
SECTION 5.17 Independent Auditor. The Company shall retain a
nationally recognized independent accounting firm and permit the Trustee, the
Collateral Agent, the Securities Intermediary and, upon an Event of Default, the
initial Holders of the Bonds, to discuss the affairs, finances and accounts of
the Company with such accounting firm upon reasonable notice and at reasonable
times (and by this provision the Company authorizes such
21
accounting firm to so discuss the affairs, finances and accounts of the
Company); provided, however, that this right shall not be deemed to be a duty or
responsibility of the Trustee, the Collateral Agent or the Securities
Intermediary.
SECTION 5.18 Debt. The Company shall not create or incur or
suffer to exist any Debt in addition to the Initial Bonds other than the
following (such Debt, together with the Initial Bonds, being referred to as
"Permitted Debt"):
(a) Additional Bonds, the proceeds of which are used for any
of the following purposes:
(A) to finance Required Modifications, provided that
either (i) after giving effect to the incurrence of such Debt,
the minimum projected Debt Service Coverage Ratio for each
fiscal year during the remaining term of the Bonds is equal to
or greater than 1.30 to 1.0, as confirmed in writing by the
Independent Engineer, or (ii) the Rating Agency confirms in
writing that, after giving effect to the incurrence of such
Debt for such purpose, the Bonds will be rated at least "Baa3"
by the Rating Agency;
(B) to finance Optional Modifications, provided that (i)
no Default or Event of Default has occurred and is --------
continuing or would result from the incurrence of such Debt
for such purpose, (ii) either (A) after giving effect to the
incurrence of such Debt, (1) the minimum projected Debt
Service Coverage Ratio for each fiscal year during the
remaining term of the Bonds is equal to or greater than 1.70
to 1.0, as confirmed in writing by the Independent Engineer,
and (2) the average annual projected Debt Service Coverage
Ratio during the remaining term of the Bonds is equal to or
greater than 1.80 to 1.0, as confirmed in writing by the
Independent Engineer, or (B) the Rating Agency confirms in
writing that the incurrence of such Debt for such purpose will
not result in the Bonds being rated lower than "Baa3" by the
Rating Agency, and (iii) so long as the Xxxxxxxx Subordination
Agreement remains in effect, the incurrence of such Debt is
permitted thereunder;
(C) to finance Expansion Modifications, provided that (i)
no Default or Event of Default has occurred and is continuing
or would result from the incurrence of such Debt for such
purpose, (ii) the Rating Agency confirms in writing that the
incurrence of such Debt for such purpose will not result in a
Rating Downgrade and that, after giving effect to the
incurrence of such Debt, the ratings for the Bonds will be at
least "Baa3", (iii) at least 80% of the total capacity of the
Project, after giving effect to the Expansion Modifications,
must be contracted under a power purchase agreement, tolling
agreement or similar agreement with a term that extends to at
least the final maturity date of the Bonds, and (iv) so long
as the Xxxxxxxx Subordination Agreement remains in effect, the
incurrence of such Debt is permitted thereunder; and
(D) in addition to Debt permitted under clauses (A), (B)
and (C) above, to finance the acquisition of assets useful in
the development, construction,
22
operation or maintenance of the Project, provided that (i) no
Default or Event of Default has occurred and is continuing or
would result from the incurrence of such Debt for such
purpose, (ii) the aggregate amount of such Debt outstanding at
any one time shall not exceed $10,000,000, (iii) such assets
are subjected to the liens of the Security Documents, and (iv)
so long as the Xxxxxxxx Subordination Agreement remains in
effect, the incurrence of such Debt is permitted thereunder;
(b) Debt issued to one or more Affiliates of the Company which
is (x) subordinated to the Bonds pursuant to subordination terms set forth in
Exhibit C ("Subordinated Debt") and (y) not secured by the Collateral, provided
that no Default or Event of Default has occurred and is continuing or would
result from the incurrence of such Debt;
(c) Debt incurred pursuant to an ACS LOC Reimbursement
Agreement, provided that the conditions set forth in clause (a) of the
definition of "Acceptable Credit Support" have been satisfied;
(d) unsecured Debt for working capital purposes in an amount
not to exceed $5,000,000;
(e) letters of credit and other financial obligations arising
under the Project Documents;
(f) purchase money obligations incurred to finance discrete
items of equipment not comprising an integral part of the Project that extend
only to the equipment being financed and that do not in the aggregate have
annual debt service or lease obligations exceeding $5,000,000 (such amount to be
escalated for inflation based on the Consumer Price Index);
(g) trade accounts payable (other than for borrowed money)
which arise in the ordinary course of business and which are payable within 90
days;
(h) obligations in respect of surety bonds or similar
instruments in an amount not to exceed $5,000,000; and
(i) Debt incurred under Interest Rate Protection Agreements
entered into in order to provide a hedge against changes in the rates of
interest on Permitted Debt which accrues interest at a floating or variable
rate, provided that the notional amount of the obligations subject to any such
Interest Rate Protection Agreement cannot at any time exceed the aggregate
principal amount of such Permitted Debt.
SECTION 5.19 Permitted Liens. The Company shall not create,
suffer to exist or permit any Lien upon or with respect to any of its properties
other than the following ("Permitted Liens"):
(a) Liens specifically permitted or required by, or created
by, any Security Document;
(b) Liens to secure Permitted Debt permitted under clause (c)
and clause (i) of Section 5.18, provided that the holder of such Debt (or an
agent or trustee on behalf of such
23
holder), becomes a "Secured Party" under the Intercreditor Agreement in
accordance with the terms thereof;
(c) Liens for taxes, assessments or governmental charges which
are either not yet due or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves are established in
accordance with GAAP;
(d) liens in connection with workers' compensation,
unemployment insurance or other social security or pension obligations;
(e) mechanics', workmen's, materialmen's, suppliers',
construction or other statutory liens arising in the ordinary course of
business, so long as such liens are securing amounts not yet due and payable or
are being diligently contested in good faith and by appropriate proceedings and
for which adequate reserves are established in accordance with GAAP;
(f) servitudes, easements, rights-of-way, restrictions, minor
defects or irregularities in title and such other encumbrances or charges
against real property or interests therein as are of a nature generally existing
with respect to properties of a similar character and which do not in any
material way interfere with (i) the use thereof by the Company in the conduct of
its business or (ii) the Lien of the Mortgage;
(g) other liens incidental to the conduct of the Company's
business or the ownership of properties and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than vendor's liens for accounts payable in the ordinary course of
business) and which do not materially impair the use thereof by the Company in
the conduct of its business; and
(h) liens arising from judgments, provided that (1) the
execution or other enforcement of such lien is effectively stayed and evidence
reasonably satisfactory to the Trustee and its counsel to that effect is
delivered to the Trustee and its counsel, (2) the judgment secured thereby is
being actively appealed in good faith and by appropriate proceedings and (3)
adequate reserves shall have been established and be maintained with respect
thereto in accordance with GAAP.
SECTION 5.20 Business Activities. The Company shall not engage
in any business other than (a) the issuance of the Bonds, (b) the development,
construction, ownership, operation and maintenance of the Project and (c) as
otherwise contemplated by the Financing Documents.
SECTION 5.21 Fundamental Changes, etc. The Company shall not
(a) enter into any transaction of merger or consolidation, change its form of
organization or its business, liquidate or dissolve itself (or suffer any
liquidation or dissolution) or sell all or substantially all of its assets, (b)
sell, transfer, assign, hypothecate, pledge, lease, sublease or otherwise
dispose of (in one transaction or in a series of transactions) any of its assets
except in the ordinary course of business or to the extent that such property is
worn out or is no longer useful or necessary in connection with the operation of
the Project, (c) acquire, by purchase or otherwise, all or substantially all of
the property or assets of any Person or (d) create or acquire any subsidiary.
24
SECTION 5.22 Affiliate Transactions. The Company shall not
enter into any transaction or agreement with any Affiliate other than (a)
transactions contemplated by the Transaction Documents and (b) transactions and
agreements in the ordinary course of business on fair and reasonable terms no
less favorable to the Company than the Company would obtain in an arm's-length
transaction with a Person that is not an affiliate of the Company.
SECTION 5.23 Restricted Payments. The Company shall not make
any Restricted Payment other than as permitted by the terms of this Indenture
and the Depository Agreement.
SECTION 5.24 Investments. The Company shall not make any
investments other than the following ("Permitted Investments"):
(a) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof) having a maturity not exceeding 180 days from the
date of issuance;
(b) time deposits and certificates of deposit having a
maturity not exceeding 180 days of any domestic commercial bank of recognized
standing having capital and surplus in excess of $500,000,000;
(c) commercial paper issued by the parent corporation of any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 and commercial paper of any domestic corporation rated at
least "A-1" or the equivalent thereof by S&P or at least "P-1" or the equivalent
thereof by Xxxxx'x and, in each case, having a maturity not exceeding 180 days
from the date of acquisition;
(d) fully secured repurchase obligations with a term of not
more than 7 days for underlying securities of the types described in clause (a)
above entered into with any bank meeting the qualifications established in
clause (b) above;
(e) corporate bonds rated at least "AA" or the equivalent
thereof by S&P and at least "Aa2" or the equivalent thereof by Xxxxx'x; and
(f) money market funds registered under the Federal Investment
Company Act of 1940, whose shares are registered under the Securities Act and
which are rated "AAAm" or "AAAmG" or better by S&P.
SECTION 5.25 Investment Company Act. The Company shall not
take any action which would cause it to be in violation of the Investment
Company Act of 1940.
SECTION 5.26 Formation Documents. The Company shall not amend its Certificate of
Limited Liability Company or Operating Agreement or any of its other
organizational documents unless (a) such amendment may be required in connection
with and to give effect to a transfer by Cleco Midstream Resources LLC,
Louisiana limited liability company and the holder of 100% of the outstanding
member interests in the Company ("Cleco Midstream"), of all of its member
interests in the Company to Cleco Business Development
25
LLC, a Louisiana limited liability company and a wholly-owned subsidiary of
Cleco Midstream ("Cleco Business Development") or (b) such amendment could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.27 Guaranty Obligations. The Company shall not
contingently or otherwise be or become liable, directly or in directly, in
connection with any Guaranty Obligation.
SECTION 5.28 Amendments to Project Documents. The Company
shall not terminate (except in the case of a scheduled termination), assign
(other than pursuant to the Security Documents), amend, supplement, modify,
waive its rights under or consent to any termination (except in the case of a
schedule termination), assignment (other than pursuant to the Security
Documents), amendment, supplement or modification of or waiver under, any
Project Document, unless (a) such termination, assignment (other than pursuant
to the Security Documents), amendment, supplement, modification, waiver or
consent could not reasonably be expected to result in a Material Adverse Effect,
(b) in the case of any termination of the Tolling Agreement or the EPC Contract
and any material amendment, supplement or modification, waiver or consent to or
under the Tolling Agreement or the EPC Contract, (i) the Rating Agency shall
have confirmed in writing that such termination, amendment, supplement,
modification, waiver or consent will not result in a Rating Downgrade or in the
Bonds being rated lower than "Baa3" and (ii) the Independent Engineer shall have
certified that such termination, amendment, supplement, modification, waiver or
consent could not reasonably be expected to result in a Material Adverse Effect
and (c) in the case of any termination of all or any part of the Maintenance
Agreement pursuant to Section 12.4 thereof, the Independent Engineer shall have
certified that the arrangements entered into by the Company for the provision of
services to replace those formerly provided pursuant to the Maintenance
Agreement, including the identity of the replacement vendor providing such
services, are reasonably satisfactory.
SECTION 5.29 Additional Project Documents. The Company shall
not enter into any Additional Project Document or any other additional agreement
or undertaking unless (a) entering into such Additional Project Document or such
additional agreement or undertaking could not reasonably be expected to result
in a Material Adverse Effect and (b) if such Additional Project Document is a
Material Project Document, the Company delivers a Consent with respect to such
Additional Project Document to the Collateral Agent.
SECTION 5.30 Change Orders. The Company shall not initiate or consent to any
change order under the EPC Contract unless an Authorized Officer of the Company
certifies to the Trustee and the Collateral Agent that (a) such change order
would not reasonably be expected to result in a Material Adverse Effect, (b) the
implementation of such change order is not reasonably expected to cause the
Project to achieve Completion after the Guaranteed Completion Date, (c) such
change order is reasonable and is consistent with sound engineering practice and
(d) unless the Independent Engineer has concurred in writing with the
certifications set forth in clauses (a), (b) and (c) above, such change order
does not individually exceed $3,000,000, or when aggregated with all other
change orders that have not been concurred with in writing or otherwise approved
or ratified by the Independent Engineer, exceed $6,000,000; provided that such
maximum amounts shall be increased by the amount of a related increase in
26
the maximum amount of equity contributions required to be made by Cleco pursuant
to Section 2(c) of the Equity Contribution Agreement.
SECTION 5.31 Alterations and Additions(a) . (a) The Company may make, cause,
suffer or permit to be made, alterations of, additions or improvements to, the
Project, provided that (i) any such alteration, addition or improvement shall
not reasonably be expected to have a Material Adverse Effect; (ii) any such
alteration, addition or improvement shall be effected with due diligence, in a
good and workmanlike manner and, except where the failure so to do could not
reasonably be expected to result in a Material Adverse Effect, in compliance
with all applicable Laws, insurance requirements and any agreements, contracts
or documents of record by which the Company is bound, other than, in the case of
any thereof, where the failure to be in compliance therewith could not
reasonably be expected to result in a Material Adverse Effect; (iii) any such
alteration, addition or improvement shall be conducted under the supervision of
a licensed architect or engineer; and (iv) each such alteration, addition or
improvement shall be promptly and fully paid for by the Company.
(b) The Company's right to make, or suffer or permit to be
made, any alteration, addition or improvement which may cost in excess of
$5,000,000 shall also be subject to the following additional provisions: (i) any
such alteration, addition or improvement shall not, in the reasonable judgment
of the Company, diminish the value of the Collateral; (ii) prior to the
commencement of any such alteration, addition or improvement, the Company shall
deliver to the Trustee certified copies of all approvals from all municipal or
governmental authorities having jurisdiction thereof and permits required with
respect thereto; (iii) the Company shall procure and maintain such insurance and
performance, labor, and material bonds as are customary for similar projects;
and (iv) promptly upon completion of any such alteration, addition or
improvement, the Company shall give notice thereof to the Trustee, together with
(A) certificates of the Company and a licensed architect or engineer, to the
effect that (1) such alteration, addition or improvement has been completed
substantially in accordance with the applicable plans and specifications, to the
satisfaction of the Company and such architect or engineer, and in a good and
workmanlike manner and in compliance with all applicable Laws and insurance
requirements and (2) all contractors, subcontractors, materialmen and other
suppliers who could claim a lien on the Land or the Project by reason of having
supplied labor or materials in connection with such alteration, addition or
improvement have been paid in full or bonded or have duly and effectually waived
or released all rights to any such liens; (B) original counterparts of receipts
and waivers of liens from or copies of bonds relating to such contractors,
subcontractors, materialmen and other suppliers who supply labor or materials
costing in excess of $50,000; (C) a permanent certificate of occupancy covering
such alteration, addition or improvement, if required to permit the use and
occupancy thereof; and (D) such other certificates, information and documents as
the Trustee may reasonably request.
27
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1 Events of Default Defined. The term "Event of
Default," whenever used herein, shall mean any of the following events (whatever
the reason for such event and whether it shall be voluntary or involuntary or
come about or be effected by operation of Law, or be pursuant to or in
compliance with any applicable Law), and any such event shall continue to be an
Event of Default if and for so long as it has not been remedied:
(a) the Company shall fail to pay any principal of, premium
(if any) or interest on any Bond when the same becomes due and payable, whether
by scheduled maturity or required redemption or by acceleration or otherwise,
and such failure shall continue uncured for five or more days; or
(b) any representation or warranty made by the Company in any
Financing Document, or in any certificate or other document furnished to any
Person in accordance with the terms of the Financing Documents, shall prove to
have been false or misleading in any respect as of the time made, and the fact,
event or circumstance that gave rise to such misrepresentation has resulted in
or is reasonably expected to result in a Material Adverse Effect and such
misrepresentation or such Material Adverse Effect shall continue uncured for 30
or more days from the date an Authorized Officer of the Company obtains
knowledge thereof; provided that if the Company commences efforts to cure (or to
cause to be cured) such misrepresentation by curing (or causing to be cured) the
factual situation resulting in such misrepresentation or such Material Adverse
Effect within such 30-day period, the Company may continue to effect (or cause)
such cure, and such misrepresentation shall not be deemed an Event of Default,
for an additional 60 days so long as an Authorized Officer of the Company
certifies to the Trustee and the Collateral Agent that such misrepresentation or
such Material Adverse Effect is reasonably capable of being cured within such
period and that the Company is diligently pursuing (or causing) such cure; or
(c) the Company fails to perform or observe any covenant or
agreement contained in Sections 5.2(d), 5.3, 5.6, 5.10(a)(ii), 5.18, 5.19, 5.20,
5.21, 5.22, 5.23, 5.24, 5.25, 5.26, 5.27, 5.28, 5.29 or 5.30, and such failure
shall continue uncured for 30 or more days after an Authorized Officer of the
Company has actual knowledge of such failure; or
(d) the Company shall fail to perform or observe any of its
covenants contained in any other provision herein (other than those referred to
in clause (a) or (c) above) or any other Financing Document and such failure
shall continue uncured for 30 or more days after an Authorized Officer of the
Company has actual knowledge of such failure; provided that if the Company
commences efforts to cure such default within such 30-day period, the Company
may continue to effect such cure of the default (and such default shall not be
deemed an Event of Default) for an additional 60 days so long as an Authorized
Officer of the Company provides an Officer's Certificate to the Trustee and the
Collateral Agent stating that such default is reasonably capable of being cured
within such period and that the Company is diligently pursuing such cure; or
28
(e) the Company, Cleco or any provider of Acceptable Credit
Support under the Equity Contribution Agreement (if such Acceptable Credit
Support is not replaced within 30 days) (i) applies for or consents to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property, (ii)
admits in writing its inability, or be generally unable to pay its debts as such
debts become due, (iii) makes a general assignment for the benefit of its
creditors, (iv) commences a voluntary case under the Federal Bankruptcy Code,
(v) files a petition seeking to take advantage of any other Law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (vi) fails to controvert within sixty (60) days, or
acquiesces in writing to, any petition filed against it in an involuntary case
under the Federal Bankruptcy Code or (vii) takes any formal limited liability
company action for the purpose of effecting any of the foregoing; or
(f) a proceeding or case is commenced without the application
or consent of the Company, Cleco or any provider of Acceptable Credit Support
under the Equity Contribution Agreement (if such Acceptable Credit Support is
not replaced within 30 days) in any court of competent jurisdiction, seeking (i)
its liquidation, reorganization, dissolution, winding-up, or the composition or
readjustment of debts or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for it or a substantial part of its property or assets
under any Laws relating to bankruptcy, insolvency, reorganization, winding-up,
or the composition or readjustment of debts, and such proceeding or case
continues undismissed, or any order, judgment or decree approving or ordering
any of the foregoing is entered and continues unstayed and in effect, for a
period of sixty (60) or more consecutive days, or any order for relief against
the Company, Cleco or any such provider of Acceptable Credit Support is entered
in an involuntary case under the Federal Bankruptcy Code; or
(g) any Lien granted or purported to be granted in the
Security Documents shall cease to be a perfected lien in favor of the Collateral
Agent on the Collateral described therein with the priority purported to be
created under the Security Documents; or
(h) any event of default under any Debt of the Company
(including Permitted Debt) shall occur and, as a result thereof, Debt of the
Company in excess of $10,000,000 shall become due and payable prior to its
stated maturity; or
(i) a final and non-appealable judgment or judgments for the
payment of money in excess of $10,000,000 shall be rendered against the Company
and the same shall remain unpaid or unstayed for a period of 60 or more
consecutive days; or
(j) an Event of Abandonment shall occur; or
(k) any Governmental Approval required for the construction or
operation of the Project is revoked, terminated, withdrawn or ceases to be in
full force and effect and such revocation, termination, withdrawal or cessation
could reasonably be expected to result in a Material Adverse Effect and is not
cured within 60 days following the occurrence thereof; or
(l) with respect to any Project Document, (x) a material term
of such Project Document (i) ceases to be a valid and binding obligation of the
parties thereto or (ii) is declared unenforceable by a Governmental Authority,
(y) such Project Document is terminated (prior to
29
its normal expiration), or (z) a Project Party denies its liability with respect
to such Project Document or a Project Party defaults in respect of its
obligations under such Project Document (and any grace or cure period with
respect to such failure has expired), and in any such case other than a
termination of the Tolling Agreement (prior to its normal expiration), such
event described in clause (x), (y) or (z) could reasonably be expected to result
in a Material Adverse Effect; provided that, with respect to any Project
Document other than the Tolling Agreement, none of such events described in
clause (x), (y) or (z) shall be deemed an Event of Default with respect to such
Project Document if within 180 days from the occurrence of any such event, the
Company shall have (i) with respect to any such event which is curable,
diligently proceeded to cure and cured or caused the relevant Project Party to
cure the circumstances described in clause (x), (y) or (z), as applicable, and
caused the relevant Project Party to resume performance in accordance with the
relevant Project Document, or (ii) entered into a Replacement Project Document
in substitution of the relevant Project Document which is reasonably
satisfactory to the Independent Engineer; or
(m) Cleco shall fail to perform any of its obligations under
the Equity Contribution Agreement.
SECTION 6.2 Enforcement of Remedies(a). (a) If one or more
Events of Default occurs and is continuing, then:
(i) in the case of an Event of Default described in
Section 6.1(a), the Trustee shall, upon the direction of the
Holders of at least 33-1/3% in aggregate principal amount of the
Outstanding Bonds, declare the entire principal amount of the
Outstanding Bonds, all interest accrued and unpaid thereon and all
other amounts payable under this Indenture to be due and payable
whereupon the same shall become immediately due and payable;
(ii) in the case of an Event of Default described in
Section 6.1(e) or (f), the entire principal amount of the
Outstanding Bonds, all interest accrued and unpaid thereon and all
other amounts payable under this Indenture shall automatically
become due and payable without any action by the Trustee, the
Holders of the Bonds or any other Person; and
(iii) in the case of any other Event of Default, the
Trustee shall, upon the direction of the Required Holders, declare
the entire principal amount of the Outstanding Bonds, all interest
accrued and unpaid thereon and all other amounts payable under
this Indenture to be due and payable, whereupon the same shall
become immediately due and payable.
(b) At any time after the principal of the Bonds shall have
become due and payable upon a declared acceleration as provided herein, and
before any judgment or decree for the payment of the money so due, or any
portion thereof, is entered, the Required Holders by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
30
(i) there shall have been paid to or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on the Bonds;
(B) the principal of and premium (if any) on any Bonds that
have become due other than by such declaration of acceleration and
interest thereon at the respective rates provided in the Bonds for
late payments of principal;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the respective
rates provided in the Bonds for late payments of interest; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation of the Trustee for ordinary and
extraordinary services, expenses, disbursements, and advances of
the Trustee, its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Bonds that has become due solely by such acceleration,
have been cured or waived as provided in Section 6.6 hereof.
No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereon.
SECTION 6.3 Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. Subject to the terms of the
Intercreditor Agreement and Section 6.2 hereof, if an Event of Default shall
have occurred and be continuing, then the Trustee, in its own name, and as
trustee of an express trust, subject to the provisions of Section 6.2 hereof,
shall be entitled and empowered to institute any suits, actions or proceedings
at Law, in equity or otherwise, for the collection of the sums so due and unpaid
on the Bonds, and may prosecute any such claim or proceeding to judgment or
final decree, and, subject to the Intercreditor Agreement with respect to the
Collateral, may enforce any such judgment or final decree and collect the moneys
adjudged or decreed to be payable in any manner provided by Law, whether before,
after or during the pendency of any proceedings for the enforcement of any of
the Trustee's rights or the rights of the Holders under this Indenture, and such
power of the Trustee shall not be affected by any sale hereunder or by the
exercise of any other right, power or remedy for the enforcement of the
provisions of this Indenture.
(b) Trustee May Recover Unpaid Debt after Sale of Collateral.
Subject to the terms of the Intercreditor Agreement, in the case of a sale of
the Collateral and of the application of the proceeds of such sale to the
payment of the Debt secured by this Indenture, the Trustee in its own name, and
as trustee of an express trust, shall be entitled and empowered, by any
appropriate means, legal, equitable or otherwise, to enforce payment of, and to
receive all amounts then remaining due and unpaid upon, all or any of the Bonds,
for the benefit of the Holders thereof, with interest at the rates specified in
the respective Bonds on the overdue principal of and premium (if any) and (to
the extent that payment of such interest is legally enforceable) on the overdue
installments of interest.
31
(c) Recovery of Judgment Does Not Affect Rights. No recovery
of any such judgment or final decree by the Trustee and no levy of any execution
under any such judgment upon any of the Collateral, or upon any other property,
shall in any manner or to any extent affect any rights, powers or remedies of
the Trustee, or any liens, rights, powers or remedies of the Holders, but all
such liens, rights, powers or remedies shall continue unimpaired as before.
(d) Trustee May File Proofs of Claim; Appointment of Trustee
as Attorney-in-Fact in Judicial Proceedings. Subject to the terms of the
Intercreditor Agreement, the Trustee in its own name, and as trustee of an
express trust, or as attorney-in fact for the Holders, or in any one or more of
such capacities (irrespective of whether the principal of the Bonds shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand for the payment
of overdue principal, premium (if any) or interest), shall be entitled and
empowered to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
Holders (whether such claims be based upon the provisions of the Bonds or of
this Indenture) allowed in any equity, receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relating to the Company or any other obligor on the Bonds, the creditors of the
Company or any such obligor, the Collateral or any other property of the Company
or any such obligor, and any receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel. Subject to the terms of the Intercreditor Agreement, the Trustee is
hereby irrevocably appointed (and the successive respective Holders of the
Bonds, by taking and holding the same, shall be conclusively deemed to have so
appointed the Trustee) the true and lawful attorney-in-fact of the respective
Holders, with authority to:
(i) make and file in the respective names of the Holders
(subject to deduction from any such claims of the amounts of any
claims filed by any of the Holders themselves), any claim, proof
of claim or amendment thereof, debt, proof of debt or amendment
thereof, petition or other document in any such proceedings and to
receive payment of any amounts distributable on account thereof;
(ii) execute any such other papers and documents and to do and
perform any and all such acts and things for and on behalf of such
Holders, as may be necessary or advisable in order to have the
respective claims of the Trustee and of the Holders against the
Company or any such obligor, the Collateral or any other property
of the Company or any such obligor allowed in any such proceeding;
and
(iii) receive payment of or on account of such claims and
debt;
provided, however, that nothing contained in this Indenture shall be deemed to
give to the Trustee any right to accept or consent to any plan of reorganization
or otherwise by action of any character in any such proceeding to waive or
change in any way any right of any Holder. Any moneys collected by the Trustee
under this Section shall be applied as provided in Section 6.10 hereof.
32
(e) Trustee Need Not Have Possession of Bonds. All proofs of
claim, rights of action and rights to assert claims under this Indenture or
under any of the Bonds may be enforced by the Trustee without the possession of
the Bonds or the production thereof at any trial or other proceedings instituted
by the Trustee. In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture or
the Bonds to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Bonds and it shall not be necessary to make any
such Holders parties to such proceedings.
(f) Suit to Be Brought for Ratable Benefit of Holders. Except
with respect to a suit, action or other proceeding at law brought to seek moneys
owed to the Trustee, any suit, action or other proceeding at law, in equity or
otherwise which is instituted by the Trustee under any of the provisions of this
Indenture or the Bonds shall be for the equal, ratable and common benefit of all
the Holders, subject to the provisions of this Indenture.
(g) Trustee May Be Restored to Former Position and Rights in
Certain Circumstances. If the Trustee institutes any proceeding to enforce any
right, power or remedy under this Indenture or the Bonds by foreclosure, entry
or otherwise, and such proceedings are determined adversely to the Trustee, then
and in every such case the Company and the Trustee shall be restored to their
former positions and rights hereunder, and all rights, powers and remedies of
the Trustee shall continue as if no such proceedings had been taken.
SECTION 6.4 Holders May Demand Enforcement of Rights by
Trustee. If any Event of Default shall have occurred and shall be continuing,
the Trustee shall, subject to the terms of the Intercreditor Agreement, upon the
written request of the Required Holders proceed to institute one or more suits,
actions or proceedings at law, in equity or otherwise, or take any other
appropriate remedy, to enforce payment of the principal of, or premium (if any)
or interest on, the Bonds, to deliver notice to the Collateral Agent in
accordance with the Intercreditor Agreement requesting that the Collateral Agent
foreclose under the Security Documents or to sell the Collateral under a
judgment or decree of a court or courts of competent jurisdiction or under the
power of sale granted in the Security Documents, or the Trustee may, subject to
the terms of the Intercreditor Agreement, take such other appropriate legal,
equitable or other remedy, as the Trustee, which may be advised by counsel,
deems reasonably designed to protect and enforce any of the rights or powers of
the Trustee or the Holders, or, in case such Holders request a specific method
of enforcement permitted hereunder, in the manner required, subject to the terms
of the Intercreditor Agreement, provided that such action shall not be otherwise
than in accordance with Law and the provisions of this Indenture, and the
Trustee, subject to Section 10.1, shall have the right to decline to follow any
such request if the Trustee in good faith shall determine that the suit,
proceeding or exercise of the remedy so requested would expose the Trustee to
personal liability or expense.
SECTION 6.5 Control by Holders. The Required Holders shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that (i) such direction shall not be in
conflict with any Law, this Indenture or the Intercreditor Agreement, and (ii)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
33
SECTION 6.6 Waiver of Past Defaults or Events of Default. The
Required Holders may, on behalf of the Holders of all Bonds, waive any past
Default or Event of Default and its consequences except that (i) in the case of
a Default or Event of Default in respect of a covenant or provisions hereof that
under Section 8.2 hereof cannot be modified or amended without the consent of
Holders holding at least 662/3% in aggregate principal amount of the Outstanding
Bonds, the Holders of not less than 662/3% in aggregate principal amount of the
Outstanding Bonds must vote to waive such Default or Event of Default and (ii)
in the case of a Default or Event of Default in respect of a covenant or
provisions hereof that under Section 8.2 hereof cannot be modified or amended
without the consent of each Holder affected by such modification or amendment,
each Holder affected by such Default or Event of Default must vote to waive such
Default or Event of Default. Upon any such waiver such Default shall cease to
exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture or the Intercreditor Agreement, but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
SECTION 6.7 Holder May Not Bring Suit Except Under Certain
Conditions. A Holder shall not have the right to institute any suit, action or
proceeding at law or in equity or otherwise for the appointment of a receiver or
for the enforcement of any other remedy under or upon this Indenture, unless:
(a) such Holder previously has given written notice to the
Trustee of a continuing Event of Default;
(b) the Required Holders (or, in the case of an Event of
Default described in Section 6.1(a), the Holders of at least twenty-five percent
(25%) in aggregate principal amount of the Outstanding Bonds) request the
Trustee in writing to institute such action, suit or proceeding;
(c) the Trustee refuses or neglects to institute any such
action, suit or proceeding for sixty (60) days after the Trustee receives such
notice;
(d) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Required Holders; and
(e) the institution of such suit, action or proceeding is not
prohibited by the Intercreditor Agreement.
It is understood and intended that no one or more of the
Holders has any right in any manner whatever hereunder or under the Bonds to (i)
surrender, impair, waive, affect, disturb or prejudice the Lien of the Security
Documents on any property subject thereto or the rights of the Holders of any
other Bonds, (ii) obtain or seek to obtain priority or preference over any other
such Holder or (iii) enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all the
Holders, subject to the provisions of this Indenture and the Intercreditor
Agreement.
SECTION 6.8 Undertaking to Pay Court Costs. All parties to
this Indenture, and each Holder by his acceptance of a Bond, shall be deemed to
have agreed that any court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy hereunder, or in any suit
against the Trustee for any action taken or omitted by it as
34
Trustee hereunder, the filing by any party litigant in such suit, action or
proceeding of any undertaking to pay the costs of such suit, action or
proceeding, and that such court may, in its discretion, assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
action or proceeding having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided, however, that the
provisions of this Section 6.8 shall not apply to (a) any suit, action or
proceeding instituted by the Trustee, (b) any suit, action or proceeding
instituted by any Holder or group of Holders holding in the aggregate more than
ten percent (10%) in aggregate principal amount of the Outstanding Bonds (other
than with respect to the Trustee if it is an adverse party in such suit, action
or proceeding) or (c) any suit, action or proceeding instituted by any Holder
for the enforcement of the payment of the principal of, or premium (if any) or
interest on, any of the Bonds, on or after the respective due dates expressed
therein (other than with respect to the Trustee if it is an adverse party in
such suit, action or proceeding).
SECTION 6.9 Right of Holders to Receive Payment Not to Be Impaired. Anything in
this Indenture to the contrary notwithstanding, the right of any Holder to
receive payment of the principal of, premium (if any) and interest on, a Bond,
on or after the respective due dates expressed in such Bond (or, in case of
redemption, on the Redemption Date fixed for such Bond), or to institute suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.10 Application of Moneys Collected by Trustee. At any time when the
Company is in default of payment of fees owed to the Trustee or following the
application of funds as provided in the Intercreditor Agreement, any money
collected or to be applied by the Trustee pursuant to this Article VI in respect
of the Bonds of a series, together with any other moneys which may then be held
by the Trustee under any of the provisions of this Indenture as security for the
Bonds of such series (other than moneys at the time required to be held for the
payment of specific Bonds of such series at their stated maturities or at a time
fixed for the redemption thereof) shall be applied in the following order from
time to time, on the date or dates fixed by the Trustee:
FIRST: to the payment of all amounts due the Trustee or any
predecessor Trustee under Section 10.7 Thereof;
SECOND: if the unpaid principal amount of the Outstanding Bonds of
such series or any of them has not become due, to the payment of any
interest in default, in the order of the maturity of the payments
thereof, with interest at the rates specified in the respective Bonds
of such series in respect of overdue payments (to the extent that
payment of such interest shall be legally enforceable) on the payments
of interest then overdue;
THIRD: if the unpaid principal amount of a portion of the
Outstanding Bonds of such series has become due, first to the payment
of accrued interest on all Outstanding Bonds of such series in the
order of the maturity of the payments thereof, with interest at the
respective rates specified in the Bonds of such series for overdue
payments of principal, premium (if any) and (to the extent that payment
of such interest shall be
35
legally enforceable) interest then overdue, and next to the payment of
the unpaid principal amount of the portion of all Outstanding Bonds of
such series then due;
FOURTH: if the unpaid principal amount of all the Outstanding
Bonds of such series has become due, first to the payment of the whole
amount then due and unpaid upon the Outstanding Bonds of such series
for interest, including interest at the respective rates specified in
the Bonds of such series for overdue payments on principal, premium (if
any) and (to the extent that payment of such interest shall be legally
enforceable) interest then overdue and second, to the payment of the
whole amount then due and unpaid upon the Outstanding Bonds of such
series for principal and premium (if any); and
FIFTH: if the unpaid principal amount of all the Outstanding Bonds
of such series has become due, and all of the Outstanding Bonds of such
series shall have been fully paid, any surplus then remaining shall be
paid to the Company, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct;
provided, however, that all payments in respect of the Bonds of a
series to be made pursuant to clauses "SECOND" through "FOURTH" of this
Section 6.10 shall be made ratably to the Holders of Bonds of such
series entitled thereto, without discrimination or preference, based
upon the ratio of (i) the unpaid principal amount of the Bonds of such
series in respect of which such payment is to be made that are held by
each such Holder to (ii) the unpaid principal amount of all Bonds of
such series.
SECTION 6.11 Bonds Held by Certain Persons Not to Share in
Distribution. Any Bonds known to the Trustee to be owned or held by, or for the
account or benefit of, the Company or an Affiliate of the Company shall not be
entitled to share in any payment or distribution provided for in this Article VI
until all Bonds held by other Persons have been indefeasibly paid in full.
SECTION 6.12 Waiver of Appraisement, Valuation, Stay, Right to
Marshalling. To the full extent it may lawfully do so, the Company, for itself
and for any other Person who may claim through or under it, hereby:
(a) agrees that neither it nor any such Person will set up,
plead, claim or in any manner whatsoever take advantage of, any appraisal,
valuation, stay, extension or redemption laws, now or hereafter in force in any
jurisdiction which may delay, prevent or otherwise hinder (i) the performance or
enforcement of this Indenture, (ii) the foreclosure of the Security Documents,
(iii) the sale of any of the Collateral or (iv) the putting of the purchaser or
purchasers thereof into possession of such Collateral immediately after the sale
thereof;
(b) waives all benefit or advantage of any such Laws;
(c) consents and agrees that the Collateral may be sold by the
Collateral Agent as an entirety or in parts; and
(d) waives and releases all rights to have the Collateral
marshaled upon any foreclosure, sale or other enforcement of this Indenture or
the Security Documents.
36
SECTION 6.13 Remedies Cumulative; Delay or Omission Not a
Waiver. Each and every right, power and remedy herein specifically given to the
Trustee shall be cumulative and shall be in addition to every other right, power
and remedy herein specifically given or now or hereafter existing at law, in
equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Trustee
and the exercise or the commencement of the exercise of any right, power or
remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy, and no delay or
omission by the Trustee in the exercise of any right, power or remedy or in the
pursuance of any remedy shall impair any such right, power or remedy or to be
construed to be a waiver of any default on the part of the Company or be an
acquiescence therein.
SECTION 6.14 The Intercreditor Agreement. Simultaneously with the execution and
delivery of this Indenture and the Depositary Agreement, the Trustee shall enter
into the Intercreditor Agreement as a Secured Party thereunder on behalf of
itself and all Holders of the Outstanding Bonds and all future Holders of any of
the Bonds. All rights, powers and remedies available to the Trustee and the
Holders of the Outstanding Bonds and all future Holders of any of the Bonds with
respect to the Security Documents shall be subject to the Intercreditor
Agreement. In the event of any conflict or inconsistency between the terms and
provisions of this Indenture and the terms and provisions of the Intercreditor
Agreement, the terms and provisions of the Intercreditor Agreement shall govern
and control. By their purchase of the Bonds and by the sale of the Bonds, the
Holders and the Company, respectively, authorize and direct the Trustee to enter
into the Intercreditor Agreement. Any actions taken by the Trustee as Secured
Party under the Intercreditor Agreement shall be subject to the terms of Section
11.13 of this Indenture. The Trustee shall have no responsibility or liability
for the acts of the Collateral Agent under the Intercreditor Agreement.
SECTION 6.15 The Depositary Agreement. On the Closing Date, the Collateral Agent
shall enter into the Depositary Agreement on behalf of the Trustee, all Holders
of the Outstanding Bonds, all future Holders of any Bonds and all other present
and future Secured Parties. In the event of any conflict or inconsistency
between the terms and provisions of this Indenture and the terms and provisions
of the Depositary Agreement, the terms and provisions of the Depositary
Agreement shall govern and control. By their purchase of the Bonds and by the
sale of the Bonds, the Holders and the Company, respectively, authorize and
direct the Trustee to direct the Collateral Agent to enter into the Depositary
Agreement. The Trustee shall have no liability for the acts of the Securities
Intermediary or the Collateral Agent under the Depositary Agreement.
ARTICLE VII
ACTS OF HOLDERS
SECTION 7.1 Acts of Holders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders (collectively, an "Act" of such Holders, which term also
shall refer to the instrument or instruments and/or record embodying or
evidencing the same) may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in
37
Person or by agent or proxy duly appointed in writing. Except as herein
otherwise expressly provided, any such Act shall become effective when such
instrument or instruments are delivered to the Trustee, and when it is
specifically required herein, to the Company. Proof of execution of any such
instrument or instruments or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section 7.1.
SECTION 7.2 Proof of Execution of Instruments and of Holding of Bonds. Proof of
execution of any instrument by a Holder, of a writing appointing any agent of a
Holder or of a written proxy of a Holder and proof of the holding by any Person
of any of the Bonds shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the certificate of any notary public or other officer
of any jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the Person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer, and where such execution is by an
officer of a corporation, association or partnership, on behalf of such
corporation, association or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(b) The principal amount and serial numbers of Bonds held by any Person, the
date or dates of holding the same, and the ownership of Bonds shall be proved by
the Bonds Register and the Trustee shall not be affected by notice to the
contrary.
(c) Bonds of any series authenticated and delivered after any Act of Holders
may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any action taken by such Act of Holders. If the Company shall
so determine, new Bonds of any series so modified as to conform, in the opinion
of the Trustee and the Company, to such Act, may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for the
Outstanding Bonds of such series.
SECTION 7.3 Bonds Owned by the Company or Affiliate Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Bonds have concurred in any request, demand, authorization, direction, notice,
consent and waiver or other act under this Indenture, Bonds which are owned by
the Company , any Affiliate of the Company, The Xxxxxxxx Companies, Inc. or any
entity known by the Trustee to be an Affiliate of The Xxxxxxxx Companies, Inc.
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Bonds for which the Trustee has received written notice of such ownership
as conclusively evidenced by the Bonds Register shall be so disregarded. The
Company shall furnish the Trustee, upon its reasonable request, with a list of
its Affiliates.
38
SECTION 7.4 Right of Revocation of Action Taken. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.1 hereof, of the
taking of any Act by the Holders of the percentage in aggregate principal amount
of the Bonds or of any series of Bonds specified in this Indenture in connection
with such Act, any Holder of a Bond the serial number of which is shown by the
evidence to be included in the Bond the Holders of which have consented to such
Act may, by filing written notice with the Trustee (or causing its duly
appointed agent to file written notice with the Trustee) and upon proof of
holding as provided in Section 7.2 hereof, revoke such Act so far as concerns
such Bond. Except as aforesaid, any such Act taken by the Holder of any Bond
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Bond, and of any Bond issued in exchange therefor or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Bond or any Bond issued in exchange therefor or in place thereof and
shall be valid notwithstanding that such Act is taken in connection with the
transfer of such Bond to any other Person, including the Company or any
Affiliate thereof. Any Act taken by the Holders of the percentage in aggregate
principal amount of the Bonds specified in this Indenture in connection with
such Act shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Bonds.
ARTICLE VIII
AMENDMENTS AND SUPPLEMENTS
SECTION 8.1 Amendments and Supplements to Indenture without Consent of Holders.
This Indenture may be amended or supplemented by the Company and the Trustee at
any time and from time to time, without the consent of the Holders, by a
Supplemental Indenture authorized by a resolution of the Members of the Company
filed with, and in form satisfactory to the Trustee, solely for one or more of
the following purposes:
(a) to add additional covenants of the Company, to surrender any right or power
herein conferred upon the Company or to confer upon the Holders any additional
rights, remedies, benefits, powers or authorities that may lawfully be
conferred;
(b) to increase the assets securing the Company's obligations
under this Indenture;
(c) to provide for the issuance of Additional Bonds on the
conditions set forth in Article II hereof;
(d) for any purpose not inconsistent with the terms of this
Indenture to cure any ambiguity or to correct or supplement any provision
contained herein or in any Supplemental Indenture which may be defective or
inconsistent with any other provision contained herein or in any Supplemental
Indenture, provided that such amendments do not adversely affect Trustee or any
Holder;
(e) in connection with, and to reflect, any amendments to the provisions hereof
required by the Rating Agency in circumstances where confirmation of the ratings
of the Bonds are required under this Indenture or the Company otherwise desires
to obtain a Rating
39
Reaffirmation; provided, however, that such amendments do not adversely affect
the Trustee or any Holder; or
(f) to appoint a successor Trustee in accordance with the
terms and conditions of Article XI.
SECTION 8.2 Amendments and Supplements to Indenture with Consent of Holders.
With the prior written consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Bonds of each series then
outstanding, this Indenture may be amended or supplemented by the Company and
the Trustee at any time and from time to time, for the purpose of adding any
mutually agreeable provisions to or changing in any manner or eliminating any of
the provisions of, this Indenture, and compliance with any provision hereof may
be waived; provided that, without the prior written consent of each Holder of an
Outstanding Bond of each series affected thereby, no such supplement or
amendment and no such waiver of compliance with any of the provisions hereof
shall alter or modify or waive compliance with (i) any provision governing the
amount of principal, premium (if any) or interest payable upon any Bonds of any
series, (ii) any provision governing the time of payment of principal of or
premium or interest on any Bonds of any series, (iii) any provision governing
the dates of maturity of any Bonds of any series or (iv) any provision of this
Article VIII. Notice of any such amendment shall be given by the Company to any
Rating Agency then maintaining a rating for the Bonds.
SECTION 8.3 Trustee Authorized to Join in Amendments and Supplements; Reliance
on Counsel. The Trustee is authorized to join with the Company in the execution
and delivery of any Supplemental Indenture or amendment permitted by this
Article VIII and in so doing shall be fully protected by an Opinion of Counsel
that such Supplemental Indenture or amendment is so permitted and has been duly
authorized by the Company and that all things necessary to make it a valid and
binding agreement have been done.
SECTION 8.4 Effect of Supplemental Indentures. Upon the execution of any
Supplemental Indenture under this Article VIII, this Indenture shall be modified
in accordance therewith, and such Supplemental Indenture shall form a part of
this Indenture for all purposes; and every Holder of Bonds therefore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.5 Reference in Bonds to Supplemental Indentures. Bonds authenticated
and delivered after the execution of any Supplemental Indenture pursuant to this
Article VIII may, and shall if required by the Company, bear a notation in form
approved by the Company and the Trustee as to any matter provided for in such
Supplemental Indenture; and, in such case, suitable notation may be made upon
Outstanding Bonds after proper presentation and demand. If the Company shall so
determine, new Bonds so modified as to conform, in the opinion of the Company
and the Trustee, to any such Supplemental Indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Bonds.
40
ARTICLE IX
SATISFACTION AND DISCHARGE
SECTION 9.1 Satisfaction and Discharge of Indenture. This Indenture shall upon
request of the Company cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:
(a) the Company shall have indefeasibly paid in full the principal of, premium,
if any, and interest on all of the Outstanding Bonds in accordance with the
terms hereof and of the Bonds, and all other amounts, if any, for which the
Company is obligated hereunder or under any other Transaction Document (in
respect of the Bonds) as and when the same shall have become due and payable;
and
(b) the Company shall have delivered to the Trustee an Officer's Certificate
stating that the condition set forth in the preceding clause (a) has been
complied with.
Upon satisfaction of the aforesaid conditions, the Trustee
shall, upon receipt of a written request from the Company, acknowledge in
writing the satisfaction and discharge of this Indenture and take all other
action reasonably requested by the Company to evidence the termination of any
and all Liens created with respect to this Indenture or the Security Documents.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the Trustee under
Section 10.7 hereof and this Article IX shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section 9.1, the Trustee shall assign, transfer and turn over to or upon
the order of the Company any and all money, securities and other property then
held by the Trustee for the benefit of the Holders.
ARTICLE X
THE TRUSTEE
SECTION 10.1 Certain Duties and Responsibilities of Trustee. (a) Except
during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereby are specifically required to be furnished to the Trustee,
41
the Trustee shall be under a duty to examine the same to determine whether or
not they appear on their face to conform to the requirements of this Indenture,
provided that the Trustee may rely upon an Opinion of Counsel in making such
determinations.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that
(i) this subsection (c) shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by an Authorized Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of at least a majority in principal amount of
the Outstanding Bonds; and
(iv) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture, the Depositary Agreement and the Intercreditor Agreement relating to
the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
(e) The Trustee shall deliver to each Holder of an Initial Bond, promptly upon
receipt thereof, duplicates or copies of all notices, requests, instruments and
other documents received by it in connection with the Project or under or
pursuant to this Indenture, to the extent that the same have not been furnished
hereto or thereto to such Holders.
(f) The Trustee shall not be responsible for insuring the Project or determining
whether any insurance complies with the requirements of this Indenture or for
collecting any insurance moneys and shall have no responsibility for the
financial, physical or other condition of the Project.
(g) The Trustee shall not be responsible for the creation,
perfection, continuation or priority of any security interest in or Lien on the
Collateral.
42
SECTION 10.2 Notice of Defaults. If payment of any interest on any Bond is not
made when it becomes due and payable and such failure continues unremedied for a
period of three (3) days, the Trustee shall, as soon thereafter as practicable,
notify the Company that it has failed to make interest payments by telephone or
telecopy. Any telephonic notice shall be promptly confirmed in writing. Within
three (3) days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Bonds, as their names and addresses appear in
the Bonds Register, notice of such Event of Default known to the Trustee, unless
such Event of Default shall have been cured or waived.
Except as otherwise expressly provided herein, the Trustee
shall not be bound to ascertain or inquire as to the performance or observance
of any of the terms, conditions, covenants or agreements herein, in the Security
Documents, or of any of the documents executed in connection with the Bonds, or
as to the existence of a Default or an Event of Default thereunder, and shall
not be deemed to have actual knowledge of a Default or an Event of Default
unless the Trustee shall have been notified in writing in accordance with the
terms hereof.
SECTION 10.3 Certain Rights of Trustee(a) . The Trustee may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Debt or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company shall be
sufficiently evidenced by written instrument signed by an Authorized Officer of
the Company;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence is herein
specifically prescribed to be relied upon) may, in the absence of bad faith on
its part, rely upon a certificate of an Authorized Officer of the Company
delivered to the Trustee;
(d) the Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities and ordinary and extraordinary compensation which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of Debt or other paper or
43
document, nor shall it be obligated to review the financial statements of the
Company to determine whether the Company is in compliance with its covenants
contained herein;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee may at any time request written instructions from the Required
Holders with respect to the interpretation of this Agreement or with respect to
any action to be taken or suffered or not taken or any condition to be satisfied
hereunder, and upon receipt of any such written instructions the Trustee shall
be entitled to rely conclusively thereon.
SECTION 10.4 Not Responsible for Recitals or Issuance of Bonds. The recitals
contained herein and in the Bonds, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Bonds. The Trustee shall not be accountable for the use or application by the
Company of Bonds or the proceeds thereof.
SECTION 10.5 May Hold Bonds. The Trustee or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of Bonds
and may deal with the Company with the same rights it would have if it were not
Trustee or such other agent.
SECTION 10.6 Money Held in Trust. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by Law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 10.7 Compensation; Reimbursement; Indemnification. The Company agrees
(a) to pay to the Trustee from time to time reasonable ordinary compensation and
from time to time extraordinary compensation for all services rendered by it
hereunder (to the extent permitted by Law) (b) except as otherwise expressly
provided herein, to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances (provided that the Trustee shall be under
no obligation to make advances) incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its gross
negligence or bad faith, and (c) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. All
indemnifications and releases from liability granted hereunder to the Trustee
shall extend to its officers, directors, employees, agents, successors and
assigns.
44
SECTION 10.8 Eligibility. There shall at all times be a Trustee hereunder which
shall be a corporation either (a) having a combined capital and surplus of at
least $100,000,000 or (b) having a combined capital and surplus of at least $
10,000,000 and being a wholly-owned subsidiary of a corporation having a
combined capital and surplus of at least $100,000,000, and in each case subject
to supervision or examination by Federal or state or District of Columbia
authority and having a corporate trust office in New York, New York to the
extent there is such an institution eligible and willing to serve. If such
corporation publishes reports of condition at least annually, pursuant to Law or
to the requirements, of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article X.
SECTION 10.9 Resignation and Removal; Appointment of Successor(a) . (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article X shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 10.10 hereof.
(b) The Trustee may resign at any time by giving written notice thereof to the
Company, provided that in the event the Trustee is also the Collateral Agent and
Securities Intermediary, it must also at the same time resign as Collateral
Agent and Securities Intermediary. If the instrument of acceptance by a
successor Trustee required by Section 10.10 hereof shall not have been delivered
to the Trustee within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of the
Required Holders of the Outstanding Bonds, delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee ceases to be eligible under Section 10.8
hereof and falls to resign after written request therefor by the Company or by
any such Holder, or
(ii) the Trustee becomes incapable of acting or is adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property is
appointed or any public officer takes charge or control of the Trustee or of its
property of affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a resolution of its
Members or (ii) the Required Holders may remove the Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of action, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a resolution of its Members, shall promptly appoint a
successor Trustee or Trustees and a successor Collateral Agent and successor
Securities Intermediary and shall comply with the applicable requirements of
Section 10.10 hereof. If, within thirty (30) days after such resignation,
removal or incapability, or the occurrence of such vacancy, no successor Trustee
shall have been so
45
appointed by the Company a successor Trustee shall be appointed by the Required
Holders by written instrument delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 10.10
hereof, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner required by
Section 10.10 hereof, any Holder who has been a bona fide Holder of a Bond for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee by mailing written notice of
such event by first-class mail, postage prepaid, to all Holders of Bonds as
their names and addresses appear in the Bonds Register and to the Rating Agency.
Each notice shall include the name of the successor Trustee and the address of
its principal trust office.
SECTION 10.10 Acceptance of Appointment by Successor(a) . (a) If a successor
Trustee is appointed hereunder, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trust and duties of the retiring Trustee; but, on the request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article X.
SECTION 10.11 Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be otherwise qualified and eligible under this Article X,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Bonds shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Bonds so authenticated with the same effect as if
such successor Trustee had itself authenticated such Bonds.
46
SECTION 10.12 Maintenance of Offices and Agencies(a) . (a) There shall at all
times be maintained in the Borough of Manhattan, the City of New York, and in
such other places of payment, if any, as shall be specified for the Bonds of any
series in the related Supplemental Indenture, an office or agency of the Paying
Agent where Bonds may be presented or surrendered for registration of transfer
or exchange and for payment of principal, premium, if any, and interest. Such
Paying Agent shall be initially:
Bank One Trust Company, N.A.
00 Xxxx Xxxxxx
0xx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(b) There shall at all times be a Registrar and a Paying Agent hereunder. In
addition, at any time when any Bonds remain Outstanding, the Trustee may appoint
an authenticating agent or agents with respect to the Bonds of one or more
series which shall be authorized to act on behalf of the Trustee to authenticate
Bonds of such series issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.8, and Bonds so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder (it being understood that wherever reference is made in this Indenture
to the authentication and delivery of Bonds by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an authenticating agent
and a certificate of authentication executed on behalf of the Trustee by an
authenticating agent). If an appointment of an authenticating agent with respect
to the Bonds of one or more series shall be made pursuant to this Section
10.12(b), the Bonds of such series may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This Bond is one of the series of Bonds referred to in the
within-mentioned Indenture.
________________________________________
Trustee
By:_____________________________________
Authenticating Agent
By:_____________________________________
Authorized Signatory
Any authorized agent shall be a bank or trust company, shall
be a Person organized and doing business under the laws of the United States or
any State thereof, having a combined capital and surplus of at least
$250,000,000 and shall be authorized under such laws to exercise corporate trust
powers, subject to supervision by Federal or state authorities. If such
authorized agent publishes reports of its condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this
47
Section 10.12, the combined capital and surplus of such authorized agent shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an authorized agent shall cease
to be eligible in accordance with the provisions of this Section 10.12, such
Authorized Agent shall resign immediately in the manner and with the effect
specified in this Section 10.12. The Trustee at its office specified in Section
10.12(a) is hereby appointed as Paying Agent and Bonds Registrar hereunder.
(c) Any Paying Agent (other than the Trustee) from time to time appointed
hereunder shall execute and deliver to the Trustee an instrument in which said
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 10.12, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, and premium,
if any, and interest on Bonds in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Trustee within three (3) days thereafter notice of any default
by any obligor upon the Bonds in the making of any such payment of
principal, premium, if any, or interest; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
Notwithstanding any other provision of this Indenture, any
payment required to be made to or received or held by the Trustee may, to the
extent authorized by written instructions of the Trustee, be made to or received
or held by a Paying Agent in the Borough of Manhattan, the City of New York, for
the account of the Trustee.
(d) Any Person into which any authorized agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
consolidation or conversion to which any authorized agent shall be a party, or
any corporation succeeding to the corporate trust business of any authorized
agent, shall be the successor of such authorized agent hereunder, if such
successor Person is otherwise eligible under this Section 10.12, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such authorized agent or such successor Person.
(e) Any authorized agent may at any time resign by giving written notice of
resignation to the Trustee and the Company. The Company may, and at the request
of the Trustee shall, at any time, terminate the agency of any authorized agent
by giving written notice of such termination to the authorized agent and to the
Trustee. Upon the resignation or termination of an authorized agent or in case
at any time any such authorized agent shall cease to be eligible under this
Section 10.12 (when, in either case, no other authorized agent performing the
functions of such authorized agent shall have been appointed), the Company shall
promptly appoint one or more qualified successor authorized agents approved by
the Trustee to perform the functions of the authorized agent which has resigned
or whose agency has been terminated or
48
who shall have ceased to be eligible under this Section 10.12. The Company shall
give written notice of any such appointment to all Holders as their names and
addresses appear on the Bonds Register.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Return of Monies Held by Trustee
(a) If the principal of any Bonds becoming due, either at maturity or otherwise,
together with all interest accruing thereon to the due date, has been paid to
the Trustee for the benefit of such Holder, all interest on such Bonds shall
cease to accrue on the due date and all liability of the Company with respect
thereto shall likewise cease, except as hereinafter provided. Thereafter the
Holders of such Bonds shall be restricted exclusively to the funds so deposited
with the Trustee for any claim of whatsoever nature with respect to such Bonds,
and the Trustee shall hold such funds in trust for such Holders.
(b) Moneys so deposited with the Trustee which remain unclaimed three years
after the date payment thereof becomes due shall, at the request of the Company
if at the time, to the knowledge of the Trustee, no Event of Default shall have
occurred and be continuing, be paid to the Company and the Holders of the Bonds
for which the deposit was made shall thereafter be limited to a claim against
the Company; provided, however, that the Trustee, before making payment to the
Company, may, at the expense of the Company, cause a notice to be published once
in a newspaper or financial journal of general circulation in the State of New
York and the City of New York, New York, stating that the moneys remaining
unclaimed will be returned to the Company after a specified date.
SECTION 11.2 Third Party Beneficiaries; No Rights Conferred on Others. Nothing
herein contained shall confer any benefit or any legal or equitable right,
remedy or claim under this Indenture upon any Person other than the parties
hereto and their respective successors and permitted assigns and the registered
Holders of the Bonds.
SECTION 11.3 Illegal Provisions Disregarded. In case any provision in this
Indenture or the Bonds shall for any reason be held invalid, illegal or
unenforceable in any respect, this Indenture or the Bonds, as the case may be,
shall be construed as if such provision had never been contained herein.
SECTION 11.4 Substitute Notice. If for any reason it shall be impossible to make
publication of any notice required hereby in a newspaper or financial journal of
general circulation in the State of New York and the City of New York, New York,
then such publication or other notice in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient giving of such notice.
SECTION 11.5 Notice to the Rating Agency. Upon the occurrence of any Event of
Default of which a Responsible Officer of the Trustee has actual knowledge
hereunder, the Trustee shall promptly give notice thereof to the Rating Agency.
49
SECTION 11.6 Notices. (a) Any notice, request, complaint, demand,
communication or other paper shall be sufficiently given and shall be deemed
given when delivered or mailed by registered or certified mail, postage prepaid,
or sent by overnight delivery, telecopy, telegram or telex, addressed to the
parties as follows:
The Company: Cleco Xxxxxxxxxx LLC
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
Trustee: Bank One Trust Company, N.A.
27th Floor
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
Xxxxx'x: Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Project Finance Group
The above parties may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
(b) Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid or made, given or
furnished by courier service, to each Holder, at its address as it appears in
the Bonds Register, not later than the latest date, if any, and not earlier than
the earliest date, if any, prescribed for the giving of such notice. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver. In any case where notice to Holders is given by mail or courier service,
neither the failure to give such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice that is mailed
50
or sent by courier service in the manner herein provided shall be conclusively
presumed to have been duly given.
SECTION 11.7 Successors and Assigns. All of the covenants, promises and
agreements in this Indenture by or on behalf of the Company, or by or on behalf
of the Trustee, shall bind and inure to the benefit of and be enforceable by
their respective successors and assigns, whether so expressed or not.
SECTION 11.8 Headings for Convenience Only. The descriptive headings in this
Indenture are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
SECTION 11.9 Counterparts. The Indenture may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 11.10 APPLICABLE LAW. (a) THIS INDENTURE AND THE BONDS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW
EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS INDENTURE AND THE BONDS
AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
INDENTURE, EACH OF THE COMPANY AND THE TRUSTEE HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE
COMPANY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION
SYSTEMS AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE
FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL
LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY ACTION
OR PROCEEDING IN THE STATE OF NEW YORK. IF FOR ANY REASON SUCH DESIGNEE,
APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE COMPANY
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE
TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE TRUSTEE. EACH
OF THE COMPANY AND THE TRUSTEE IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE COMPANY AND THE TRUSTEE AT ITS ADDRESS REFERRED TO IN SECTION 11.6. EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY DO SO UNDER
51
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS INDENTURE BROUGHT IN THE COURTS REFERRED TO ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
(c) EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS INDENTURE OR ANY MATTER ARISING HEREUNDER.
SECTION 11.11 Holidays. If any date for the payment of principal, premium (if
any) or of interest on the Bonds is not a Business Day, then such payment shall
be due on the first Business Day thereafter.
SECTION 11.12 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Indenture, the liability and obligation of the Company to
perform and observe and make good the obligations contained in this Indenture
shall not be enforced by any action or proceeding wherein damages or any money
judgment or any deficiency judgment or any judgment establishing any personal
obligation or liability shall be sought, collected or otherwise obtained against
any member, manager, officer, director or shareholder or related Person of the
Company, and the Trustee, for itself and its successors and assigns, irrevocably
waives any and all right to xxx for, seek or demand any such damages, money
judgment, deficiency judgment or personal judgment against any member, manager,
officer, director or shareholder or related Person of the Company under or by
reason of or in connection with this Indenture and agrees to look solely to the
Company and the security and Collateral held in connection with the Security
Documents for the enforcement for such obligations of the Company under this
Indenture.
SECTION 11.13 Trustee Actions as Secured Party Under Intercreditor Agreement.
The Trustee shall not take any action in its capacity as Secured Party under the
Intercreditor Agreement, including, without limitation, the giving of any
notice, direction or consent thereunder or the waiver of any of the terms
thereof, unless directed to do so by the Required Holders, and any such action
so taken by the Trustee upon the direction of the Required Holders shall be
treated as having been taken on behalf of the Holders of all Bonds then
Outstanding.
52
IN WITNESS WHEREOF, each of the parties hereto has caused this
Trust Indenture to be executed by one of its duly Authorized Officers, all as of
the day and year first above written.
CLECO XXXXXXXXXX LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Manager
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Xxxxxxx Account Executive Authorized
Banking Officer
53
Schedule I to
Trust Indenture
PRINCIPAL AMORTIZATION
The principal of the Initial Bonds due September 1, 2019 will be payable in
semiannual installments, commencing March 1, 2001, as follows:
Principal Amount Payable on $218,600,000
Bonds Issued
Principal Payment Date Pursuant to this Indenture
March 1, 2001 $2,186,000
September 1, 2001 2,186,000
March 1, 2002 2,733,000
September 1, 2002 2,733,000
March 1, 2003 3,006,000
September 1, 2003 3,006,000
March 1, 2004 2,459,000
September 1, 2004 2,459,000
March 1, 2005 3,006,000
September 1, 2005 3,006,000
March 1, 2006 3,552,000
September 1, 2006 3,552,000
March 1, 2007 3,826,000
September 1, 2007 3,826,000
March 1, 2008 4,099,000
September 1, 2008 4,099,000
March 1, 2009 3,552,000
September 1, 2009 3,552,000
March 1, 2010 4,099,000
September 1, 2010 4,099,000
March 1, 2011 4,645,000
September 1, 2011 4,645,000
March 1, 2012 5,192,000
September 1, 2012 5,192,000
March 1, 2013 6,012,000
September 1, 2013 6,012,000
March 1, 2014 7,378,000
September 1, 2014 7,378,000
March 1, 2015 8,198,000
September 1, 2015 8,198,000
March 1, 2016 9,017,000
September 1, 2016 9,017,000
March 1, 2017 10,383,000
S-1
September 1, 2017 10,383,000
March 1, 2018 11,202,000
September 1, 2018 11,202,000
March 1, 2019 14,755,000
September 1, 2019 14,755,000
--------------------------------------------------------------------------------
S-2
Exhibit A
to Trust Indenture
Definitions
The following terms shall have the respective meanings
assigned to them:
"Acceptable Credit Support" means (a) an irrevocable letter of
credit issued by a bank or other financial institution with a combined capital
and surplus of at least $1,000,000,000 that is rated at least "A2" by Xxxxx'x
and at least "A" by S&P, provided that (i) the Company cannot in any event be
named as the account party for any letter of credit issued to support Cleco's
obligations under the Equity Contribution Agreement and (ii) the Company cannot
be named as the account party for any letter of credit provided for the Debt
Service Reserve Account or the Major Maintenance Reserve Account unless (x) the
minimum projected Debt Service Coverage Ratio for each fiscal year during the
remaining term of the Bonds is equal to or greater than 1.85 to 1.0, as
confirmed in writing by the Independent Engineer, and (y) the Rating Agency
confirms in writing that the naming of the Company as an account party for such
letter of credit will not result in the Bonds being rated lower than "Baa3" by
the Rating Agency, and provided further that if at any time after such
confirmation by the Rating Agency the Bonds are rated lower than "Baa3" by the
Rating Agency, any such letter of credit in respect of which the Company is
named as the account party will cease constituting Acceptable Credit Support, or
(b) an unconditional guarantee from (i) with respect to any guarantee provided
for the Debt Service Reserve Account, a Person (including Cleco but not
including the Company) that has a long-term unsecured debt rating of at least
"Baa2" from Xxxxx'x and at least "BBB" from S&P, and (ii) with respect to any
other guarantee, Cleco, so long as Cleco has a long-term unsecured debt rating
of at least as high as it was rated by Xxxxx'x and S&P on the Closing Date.
"Account Collateral" has the meaning specified in Section 2.3
of the Depositary Agreement.
"Accounts" means, collectively, the accounts established
between the Company and the Securities Intermediary pursuant to the Depositary
Agreement, which shall include, but not be limited to, the Construction Account,
the Revenue Account, the O&M Account, the Debt Service Payment Account, the Debt
Service Reserve Account, the Major Maintenance Reserve Account, the Distribution
Account and the Redemption Account.
"ACS LOC" means any letter of credit described in and meeting
the requirements of clause (a) of the definition of Acceptable Credit Support
for which the Company is the account party.
"ACS LOC Provider" means any commercial bank or other
financial institution issuing an ACS LOC.
"ACS LOC Reimbursement Agreement" means an agreement to which
the Company is a party providing for the issuance of one or more ACS LOCs.
A-1
"Act" when used with respect to any Holder, has the meaning
specified in Section 7.1 of the Indenture.
"Additional Bonds" means any additional Bonds issued pursuant
to the provisions of Section 2.3 of the Indenture.
"Additional Project Document" means any agreement entered into
after the Closing Date by or on behalf of the Company related to the
development, construction, operation, administration, maintenance or improvement
of the Project.
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such first Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Allocation Certificate" means each certificate provided by
the Company pursuant to Section 3 of the Intercreditor Agreement or by the
Required Secured Parties pursuant to Section 6(c) of the Intercreditor
Agreement, as applicable, setting forth the allocation of Loss Proceeds, Title
Insurance Proceeds, Buydown Damages and Tolling Agreement Damages Payments or
cash proceeds resulting from liquidation of the Collateral among the Secured
Parties (to the extent the Secured Obligations of such Secured Parties may be
redeemed or prepaid under the applicable Financing Documents).
"Annual Operating Budget" has the meaning specified in Section
5.15.
"Approved Completion Plan" means a plan (including budget and
schedule) to construct and complete the Project using liquidated damages
payments and/or other funds available to the Company (by borrowing or otherwise,
so long as permitted under the Indenture), which plan includes a certificate of
the Company, confirmed (with customary assumptions and qualifications) as
reasonable by the Independent Engineer, stating that (a) the funds available to
the Company are reasonably expected to be sufficient to reach Completion of the
Project and (b) after reaching Completion of the Project, the minimum and
average projected Debt Service Coverage Ratios (as confirmed in writing by the
Independent Engineer) for the remaining term of the Bonds will not be less than
1.65 to 1.0 and 1.75 to 1.0, respectively.
"Approved Construction Budget and Schedule" means a
construction budget and schedule (containing customary assumptions and
qualifications) prepared by the Company for the Project and confirmed as
reasonable by the Independent Engineer as referenced in the Independent
Engineer's Report contained as an appendix to the Final Memorandum, as may
thereafter be amended in connection with an event of force majeure, an event of
default or a change order under the EPC Contract, provided that the Independent
Engineer confirms as reasonable the certification of the Company that (a) such
amendment could not reasonably be expected to result in a Material Adverse
Effect, (b) the Project is reasonably expected to achieve Completion on or prior
to the Guaranteed Completion Date and (c) the funds available to the Company are
reasonably expected to be sufficient to fund the costs of achieving Completion
on or prior to the Guaranteed Completion Date.
A-2
"Authorized Officer" or "Authorized Representative" means with
respect to any Person, (i) in the case of knowledge of any default under any
Financing Document, the manager, president, general counsel, principal
accounting officer, treasurer, senior vice president, vice president or other
officer of such Person, as the case may be, who in the normal performance of his
or her operational duties would have knowledge of such default and the subject
matter relating thereto, and (ii) in all other cases, the manager, president,
general counsel, principal accounting officer, treasurer, senior vice president,
vice president or other officer or any Person authorized by the Board of
Directors (or in the case of the Company, by the operating manager or managers
thereof) of such Person, as the case may be.
"Bonds" means, collectively, the Initial Bonds issued by the
Company under the Indenture pursuant to the Bond Purchase Agreement and any
Additional Bonds which may be issued by the Company under the Indenture from
time to time in accordance with the terms thereof.
"Bond Proceeds Sub-account" means the sub-account of such name
established under the Depositary Agreement and held under account number 6800
0603 09.
"Bond Purchase Agreement" means the Bond Purchase Agreement,
dated as of the Closing Date, between the Company and the Initial Purchasers.
"Bonds Register" has the meaning specified in Section 2.5(a)
of the Indenture.
"Business Day" means any day that is not a Saturday, Sunday or
legal holiday in the State of New York, or a day on which banking institutions
chartered by the State of New York, or the United States, are legally required
or authorized to close.
"Buydown Damages" has the meaning specified in Section
3.3(a)(C) of the Indenture.
"Buydown Damages Sub-account" means the sub-account of such
name established under the Depositary Agreement and held under account number
6800 0603 15.
"Change of Control" means Cleco fails to maintain a direct or
indirect interest in at least 51% of the voting and ownership interests in the
Company, unless (1) prior to the date on which the Project achieves Completion,
such failure is approved by Holders holding at least 66 2/3% of the Outstanding
Bonds, and (2) from and after the date on which the Project achieves Completion,
(a) the Rating Agency confirms in writing that such failure will not result in a
Rating Downgrade and (b) the Independent Engineer confirms that the new operator
of the Project is experienced in the operation of similar facilities in
accordance with prudent utility practice.
"Change of Control Notice" has the meaning specified in
Section 3.3(b) of the Indenture.
"Cleco" means Cleco Corporation, a Louisiana corporation.
A-3
"Cleco Business Development" has the meaning specified in
Section 5.26 of the Indenture.
"Cleco Midstream" has the meaning specified in Section 5.26 of
the Indenture.
"Closing Date" means December 15, 1999.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means (a) a first priority perfected mortgage on
the Project and the Site, all fixtures thereon and all related easements,
rights-of-way, servitudes, licenses and other real property rights of the
Company, (b) a first priority perfected security interest in all tangible and
intangible personal property of the Company, including, without limitation, (i)
all equipment, inventory and other goods used in connection with the Project,
(ii) all rights of the Company under the Project Documents, (iii) the project
accounts and all cash, securities and other property on deposit therein or
credited thereto, and (iv) all Governmental Approvals obtained in connection
with the Project (to the extent assignable), and (c) a first priority perfected
pledge of all of the membership interests in the Company.
"Collateral Agent" means Bank One Trust Company, N.A., as
collateral agent for the benefit of the Secured Parties under the Intercreditor
Agreement, together with its successors and assigns.
"Combined Exposure" has the meaning specified in the
Intercreditor Agreement.
"Commonly Controlled Entity" means, as applied to the Company,
any Person who is a member of a group which is under common control with the
Company, who together with the Company, is treated as a single employer within
the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of
ERISA.
"Company" means Cleco Xxxxxxxxxx LLC, a Louisiana limited
liability company.
"Completion" means and shall occur when (1) all work to be
performed by the contractor under the EPC Contract shall have been performed
(other than "punch list" items not to exceed $3,903,000 in respect of which the
Company has reserved funds for the payment thereof) in accordance with the terms
of the EPC Contract, (2) all acceptance or other tests under the EPC Contract
shall have been performed and any defects in the Project shall have been
corrected to the satisfaction of the Company and the Independent Engineer (or,
to the extent such defects have not been corrected, the EPC Contractor shall
have paid in full the liquidated damages due in respect thereof), (3) the EPC
Contractor shall have paid in full any other liquidated damages payable under
the EPC Contract, unless such liability to pay liquidated damages shall have
been fully reserved for with a bond or irrevocable letter of credit issued by a
financial institution with a rating of at least "A2" by Xxxxx'x and at least "A"
by S&P, (4) all Governmental Approvals required for the operation of the Project
shall have been obtained, (5) the Project shall be capable of being operated
safely in accordance with all applicable laws and Governmental Approvals, (6) no
defective or incomplete portions of the Project shall exist that have or could
reasonably be expected to have a material adverse effect on the operation or
performance thereof in accordance with the operating and performance conditions
specified in
A-4
the EPC Contract, and (7) the Project shall have been
interconnected with all utilities necessary for the operation thereof; provided,
however, that the Project shall be deemed to have achieved Completion
notwithstanding its failure to satisfy the condition set forth in clause (2)
above if (a) the Company shall have redeemed an amount of Bonds such that the
minimum and average projected Debt Service Coverage Ratios for the term of the
Bonds are greater than or equal to 1.65 to 1 and 1.75 to 1, respectively and (b)
the Company shall have taken such other measures as the Rating Agency may
require in order to enable it to confirm (and upon which the Rating Agency shall
confirm) in writing that such failure to achieve Completion on or before the
Guaranteed Completion Date will not lower the rating of the Bonds below the
rating assigned to the Bonds by the Rating Agency on the Closing Date.
"Consent" means a consent to assignment executed by a Project
Party in favor of the Collateral Agent in form and substance similar to the form
of consent to be attached as an exhibit to this Indenture or otherwise
satisfactory in form and substance to the Required Holders.
"Construction Account" means the Account of such name
established under the Depositary Agreement and held under account number 6800
0603 01.
"Construction Costs" means all costs and expenses due and
payable by the Company to the EPC Contractor pursuant to the EPC Contract.
"Construction Debt Sub-account" means the sub-account of such
name established under the Depositary Agreement and held under account number
6800 0603 19.
"Construction Debt Service Reserve Sub-account" means the
sub-account of such name established under the Depositary Agreement and held
under account number 6800 0603 18.
"Construction Period" means the period commencing on the
Effective Date and ending on the Final Completion Date.
"Consumer Price Index" means the consumer price index as
published from time to time by the United States Department of Labor, Bureau of
Labor Statistics.
"Corporate Trust Office" means the corporate trust office of
the Trustee located in New Orleans, Louisiana, which office is, on the date of
delivery of this Indenture, located at the address specified in Section 11.6.
"Cost Overrun Certificate" has the meaning specified in the
Equity Contribution Agreement.
"Damages" has the meaning specified in Section 12(b) of the
Intercreditor Agreement.
"Debt" of any Person at any date means, without duplication,
(1) all obligations of such Person for borrowed money, (2) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(3) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the
A-5
ordinary course of business, (4) all obligations of such Person under leases
which are or should be, in accordance with GAAP, recorded as capital leases for
which such Person is liable, (5) all obligations of such Person under interest
rate or currency protection agreements or other hedging instruments, (6) all
obligations of such Person to purchase securities (or other property) which
arise out of or in connection with the sale of the same or substantially similar
securities (or property), (7) all deferred obligations of such Person to
reimburse any bank or other Person for amounts paid or advanced under a letter
of credit or other instrument, (8) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person, and
(9) all Debt of others guaranteed directly or indirectly by such Person or as to
which such Person has an obligation substantially the economic equivalent of a
guarantee or other arrangement to assure a creditor against loss.
"Debt Service Coverage Ratio" means without duplication, the
ratio of (1) (a) all revenues of the Company (including interest and fee income,
business interruption and delay in start-up insurance and Loss Proceeds and
Title Insurance Proceeds deposited into the Revenue Account, but excluding Loss
Proceeds and Title Insurance Proceeds not deposited into the Revenue Account and
other similar non-recurring receipts not deposited into the Revenue Account) for
such period minus (b) all O&M Costs for such period and all deposits into the
Major Maintenance Reserve Account during such period, to (2) the sum of (a) all
principal and interest (other than interest during construction and other
similar payments which are pre-funded with the proceeds of a debt issuance or
otherwise) payments due with respect to outstanding (without duplication) Bonds
and other Permitted Debt (other than Subordinated Debt) during such period, and
(b) all unpaid principal and interest (other than interest during construction
and other similar payments which are pre-funded with the proceeds of a debt
issuance or otherwise) payments due with respect to outstanding (without
duplication) Bonds and other Permitted Debt (other than Subordinated Debt)
during all previous periods, all as determined on a cash basis in accordance
with GAAP and as confirmed in writing by the Independent Engineer.
"Debt Service Payment Account" means the Account of such name
established pursuant to the Depositary Agreement and held under account number
6800 0603 04.
"Debt Service Reserve Account" means the Account of such name
established pursuant to the Depositary Agreement and held under account number
6800 0603 06.
"Debt Service Reserve Required Balance" means, at any date of
determination thereof, the sum of (a) the next succeeding semiannual principal
and interest payment on the Initial Bonds, (b) the next succeeding principal and
interest payment on the Additional Bonds, if any, and (c) the next succeeding
interest payment under any ACS LOC Reimbursement Agreement with respect to which
the Company is the obligor.
"Debt Termination Date" has the meaning specified in the
Intercreditor Agreement.
"Default" means any event or condition that, with the giving
of notice, lapse of time or failure to satisfy certain specified conditions, or
any combination thereof, would become an Event of Default.
A-6
"Default Equity Contribution" means any Equity Contribution
required to be made by Cleco pursuant to Section 2(b) of the Equity Contribution
Agreement.
"Default Equity Contribution Notice" has the meaning specified
in Section 3.3(d) of the Indenture.
"Default Equity Contribution Sub-account" means the
sub-account of such name established under the Depositary Agreement and held
under account number 6800 0603 16.
"Default Rate" means, on any date, a per annum rate of
interest equal to the higher of (i) 10.82% and (ii) the per annum rate of
interest from time to time announced by Chase Manhattan Bank in New York, New
York as its prime commercial lending rate plus 2%.
"Depositary Agreement" means the Deposit and Disbursement
Agreement, dated as of December 10, 1999, among the Company, the Collateral
Agent and the Securities Intermediary.
"Distribution Account" means the Account of such name
established under the Depositary Agreement and held under account number 6800
0603 08.
"Eligible Facility" means an "eligible facility," as that term
is defined in 15 X.X.X.xx.
79z-5a(a)(2).
"Environmental Claim" means any complaint, order, citation,
decree, demand, judgment or written notice actually received by the Company from
any Person alleging or asserting that (i) the Company or the Site is or could be
in violation of any Environmental Law or (ii) that the Company may have
liability under any Environmental Law as a result of any activity or operations
at any time conducted by the Company, including, without limitation:
(i) the existence of any Environmentally Regulated Materials
at the Site in violation of any Environmental Law;
(ii) the release or threatened release of any Environmentally
Regulated Materials generated at
the Site in violation of any Environmental Law;
(iii) remediation of any such release at the Site; and
(iv) any violation of any relevant Environmental Law in
connection with the Site.
"Environmental Laws" means any and all Laws (as well as
obligations, duties and requirements under common law) relating to: (i) noise,
emissions, discharges, spills, releases or threatened releases of pollutants,
contaminants, Environmentally Regulated Materials, materials containing
Environmentally Regulated Materials, or hazardous or toxic materials or wastes
into ambient air, surface water, groundwater, watercourses, publicly or
privately-owned treatment works, drains, sewer systems, wetlands, septic systems
or onto land surface or subsurface strata; (ii) the use, treatment, storage,
disposal, handling, manufacture, processing, distribution, transportation, or
shipment of Environmentally Regulated Materials, materials containing
A-7
Environmentally Regulated Materials or hazardous and/or toxic wastes, material,
products or by-products (or of equipment or apparatus containing Environmentally
Regulated Materials); or (iii) pollution or the protection of human health, the
environment or natural resources.
"Environmentally Regulated Materials" means (i) hazardous
materials, hazardous wastes, hazardous substances, extremely hazardous wastes,
restricted hazardous wastes, toxic substances, toxic pollutants, contaminants,
pollutants or words of similar import, as used under Environmental Laws,
including but not limited to the following: the Hazardous Materials
Transportation Act, 49 U.S.C. 1801 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq., the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., the Clean Water
Act, 33 U.S.C. 1251 et seq., the Clean Air Act, 42 X.X.X.xx. 7401 et seq., the
Toxic Substances Control Act, 15 U.S.C. 2601 et seq., the Safe Drinking Water
Act, 42 X.X.X.xx. 3808 et seq., and the Oil Pollution Act, 33 X.X.X.xx. 2701 et
seq., and their State and local counterparts or equivalents; (ii) petroleum and
petroleum products including crude oil and any fractions thereof; (iii) natural
gas, synthetic gas and any mixtures thereof; (iv) radon; (v) any other
hazardous, radioactive, toxic or noxious substance, material, pollutant, or
solid, liquid or gaseous waste; and (vi) any substance that, whether by its
nature or its use, is now or hereafter subject to regulation under any
Environmental Law or with respect to which any Federal, state or local
Environmental Law requires environmental investigation, monitoring or
remediation.
"EPC Contract" means the Agreement for Engineering,
Procurement and Construction Services to be executed by and between the Company
and the EPC Contractor and any Replacement Project Document entered into in
substitution therefor.
"EPC Contractor" means Cleco Midstream or such other Person
that becomes contractor under the EPC Contract.
"EPC Guaranty" means the Engineering, Procurement and
Construction Completion Guaranty to be executed by Cleco in favor of the
Company, and any Replacement Project Document entered into in substitution
therefor.
"Equity Contribution" has the meaning specified in Section 1
of the Equity Contribution Agreement.
"Equity Contribution Agreement" means the Equity Contribution
Agreement, dated as of the Closing Date, among Cleco, the Company and the
Collateral Agent.
"Equity Letter of Credit" has the meaning specified in Section
1 of the Equity Contribution Agreement.
"Equity Requisition Certificate" has the meaning specified in
Section 1 of the Equity Contribution Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
A-8
"Event of Abandonment" means: (1) prior to the date of
Completion, (a) the cessation or deferral of all or substantially all
construction or completion of the Project for more than 120 consecutive days (as
such period may be extended on a day-for-day basis corresponding with the
occurrence and continuance of any event of force majeure (as defined in any of
the Project Documents) so long as the Company is diligently proceeding to
mitigate the consequences of such event) other than by reason of a Loss Event or
(b) the announcement by the Company of a decision to permanently cease or
indefinitely defer the construction or completion of the Project; or (2) after
the date of Completion, (a) the suspension for more than 120 consecutive days
(as such period may be extended on a day-for-day basis corresponding with the
occurrence and continuance of any event of force majeure (as defined in any of
the Project Documents) so long as the Company is diligently proceeding to
mitigate the consequences of such event) of all or substantially all operation
of the Project (other than (i) by reason of the failure to be dispatched or (ii)
by reason of the occurrence of a Loss Event ) or (b) the announcement by the
Company of a decision to permanently cease operation of the Project.
"Event of Default" means the occurrence of any of the events
specified in Section 6.1 of the Indenture.
"Excess Loss Event Redemption" has the meaning specified in
3.3(a)(A) of the Indenture.
"Excess Title Proceeds Redemption" has the meaning specified
in Section 3.3(a)(B)(b) of the Indenture.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Exempt Wholesale Generator" means an "exempt wholesale
generator," as that term is defined in 15 U.S.C. ss. 79z-5a(a)(1).
"Expansion Modifications" means modifications or improvements
to the Project that are designed to materially increase the net generating
capacity of the Project, provided that Expansion Modifications do not include
modifications that are Required Modifications.
"Facility" means the approximately 710 MW combined-cycle
electric generating facility with 60 MW of supplemental duct firing capability
consisting of refurbished and repowered Units 6 and 7 and three 160 MW natural
gas-fired combustion generators which is owned by the Company and located in
Xxxxxxxxxx Xxxxxx, Louisiana, together with the land on which the generation
units are located, the electrical substation on the site, gas pipelines that
connect the facility to the off-site pipeline system of CLE Intrastate Pipeline
Company, Inc. and the transmission lines that connect the substation with a
utility transmission system.
"Federal Bankruptcy Code" means Title 11 of the United States
Code.
"Final Completion" has the meaning specified in the EPC
Contract in effect as of the Effective Date, without giving effect to any
subsequent amendments or modifications thereto (other than such amendments or
modifications which are made in accordance with the Financing Documents).
A-9
"Final Completion Date" means the later of (a) June 1, 2001
and (b) the date on which (i) all of the conditions to Final Completion have
been fully satisfied, (ii) no Default or Event of Default has occurred and is
continuing and (iii) all of the Accounts are fully funded to their then required
levels in accordance with the Depositary Agreement.
"Final Maturity Date" means the latest stated maturity date of
any series of the Bonds.
"Final Memorandum" means the confidential private placement
memorandum of the Company, dated December 13, 1999 distributed in connection
with the offering of the Initial Bonds.
"Financing Commitments" has the meaning specified in the
Intercreditor Agreement.
"Financing Documents" means, collectively, the Bond Purchase
Agreement, the Indenture, the Bonds, the Equity Contribution Agreement, the
Depositary Agreement, the Intercreditor Agreement and the Security Documents.
"Funding Date" has the meaning specified in the Depositary
Agreement.
"GAAP" means generally accepted accounting principles as in
effect in the United States from time to time.
"Gas Transportation Guaranty" means the Gas Transportation
Guaranty to be executed by Cleco in favor of the Company.
"Gas Transportation Agreement" means the Agreement for
Intrastate Transportation of Natural Gas, dated as of November 10, 1999, between
the Company and CLE Intrastate Pipeline Company, Inc., and any Replacement
Project Document entered into in substitution therefor.
"Governmental Approvals" means all governmental approvals,
authorizations, consents, decrees, permits, licenses, waivers, privileges and
filings with all Governmental Authorities required to be obtained for the
development, acquisition, construction, ownership, start-up and operation of the
Project and the sale of capacity, energy and/or ancillary services therefrom.
"Governmental Authority" means any government, governmental
department, ministry, commission, board, bureau, agency, regulatory
instrumentality of any government (central or state), judicial, legislative or
administrative body, federal, state or local, having jurisdiction over the
matter or matters in question.
"Guaranteed Completion Date" means December 1, 2000.
"Guaranty Obligation" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing in any manner any Debt or similar obligation of any other Person.
A-10
"Holder" means the registered holder of any Bond from time to
time.
"Indenture" means this Trust Indenture, dated as of December
10, 1999, between the Company and the
Trustee.
"Independent Engineer" means Stone & Xxxxxxx or another
recognized independent engineering firm or engineer retained as independent
engineer by the Company (provided, however, that the Company shall not replace
such independent engineer in connection with any substantive disagreement
between the Company and such independent engineer in connection with a
certification to be delivered by the Company or such independent engineer or a
consent to be given by such independent engineer, in each case, as required
under a Transaction Document).
"Initial Bonds shall have the meaning specified in the second
"WHEREAS" clause of this Indenture.
"Initial Purchasers" means the institutional investors which
are named in Schedule A to the Bond Purchase Agreement.
"Insurance Consultant" means Xxxxx USA Inc.
"Interconnection Agreement" means the Cleco Standard
Interconnection Agreement to be executed by and between Cleco Utility Group Inc.
and the Company, and any Replacement Project Document entered into in
substitution therefor.
"Intercreditor Agreement" means the Collateral Agency and
Intercreditor Agreement, dated as of December 10, 1999, among the Company, the
Trustee, the Securities Intermediary, the Collateral Agent on behalf of the
Secured Parties and any Secured Parties from time to time a party thereto.
"Interest Payment Date" means (i) with respect to the Bonds,
each March 1 and September 1, commencing on March 1, 2000 and concluding on the
Final Maturity Date and each other date on which interest on the Bonds becomes
due and payable, whether on a Redemption Date, the Final Maturity Date,
declaration of acceleration or otherwise and (ii) with respect to any other
Secured Obligations, each regularly scheduled date on which interest is due and
payable with respect to such Secured Obligations, as such date may be
established from time to time, and any date on which interest on such Secured
Obligations becomes due and payable, whether at redemption, the final maturity
date or declaration of acceleration or otherwise.
"Interest Rate Protection Agreements" means any agreements
between the Company and a Permitted Counterparty providing for swaps, ceiling
rates, ceiling and floor rates, contingent participation or other hedging
mechanisms with respect to the payment of interest.
"Land" has the meaning specified in the Mortgage.
"Law" means any constitution or treaty, any law (including,
without limitation, Environmental Laws, laws pertaining to land use or zoning
restrictions, and building, health, fire
A-11
and water use laws), ordinance, decree, code, regulation (including regulations
governing environmental matters), order, rule, permit, approval, concession,
grant, franchise, license, agreement, directive, guideline, policy, requirement,
final judicial or arbitral decision or other governmental restriction or any
similar form of decisions or determination by, or any interpretation or
administration of the foregoing by, any Governmental Authority.
"Lien" means any mortgage, pledge, hypothecation, assignment,
mandatory deposit arrangement with any Person owning Debt of such Person,
encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever which has the substantial effect of
constituting a security interest, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same effect as any of the foregoing and the filing of any
financing statement or similar instrument under the Uniform Commercial Code or
comparable law of any jurisdiction, domestic or foreign.
"Loss Event" means (1) an event (other than a Title Defect)
which causes all or a portion of the Project to be damaged, destroyed or
rendered unfit for normal use, or (2) a compulsory transfer or taking or
transfer under threat of compulsory transfer or taking of all or a substantial
portion of the Project by a Governmental Authority.
"Loss Event Redemption" has the meaning specified in Section
3.3(a)(A)(a) of the Indenture.
"Loss Proceeds" means all proceeds received by or on behalf of
the Company in connection with a Loss Event.
"Loss Proceeds Sub-account" means the sub-account of such name
established under the Depositary Agreement and held under account number 6800
0603 13.
"Maintenance Agreement" means the Program Parts, Shop Repairs
and Scheduled Outage Services Contract, dated as of September 2, 1999, between
the Company and Siemens Westinghouse Power Corporation, and any Replacement
Project Document entered into in substitution therefore.
"Major Maintenance Reserve Account" means the Account of such
name established under the Depositary Agreement and held under account number
6800 0603 05.
"Major Maintenance Reserve Required Balance" means, for any
Funding Date, the amount set forth for such Funding Date on Schedule II to the
Indenture, provided that Schedule II may be revised from time to time by the
Company as set forth in a substitute Schedule II prepared by the Company to more
closely reflect the anticipated amount and timing of major maintenance expenses
based on (i) a certificate of an Authorized Representative of the Company
delivered to the Trustee certifying that such substitute Schedule II more
closely reflects the anticipated amount and timing of major maintenance expenses
than the then existing Schedule II and otherwise complies with the requirements
of this definition and (ii) a certificate of the Independent Engineer confirming
that in its view such substitute Schedule II more closely reflects the
anticipated amount and timing of major maintenance expenses than the then
existing Schedule II and is prudent based on the operating characteristics of
the Facility.
A-12
"Make-Whole Premium" means, with respect to any Initial Bond,
an amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Bond over the
amount of such Called Principal, provided that the Make-Whole Premium may in no
event be less than zero. For the purposes of determining the Make-Whole Premium,
the following terms have the following meanings:
"Called Principal" means, with respect to any Initial Bond,
the principal of such Initial Bond that is to be redeemed pursuant to
Section 3.1.
"Discounted Value" means, with respect to the Called Principal
of any Initial Bond, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from their
respective scheduled due dates to the Redemption Date with respect to
such Called Principal, in accordance with accepted financial practice
and at a discount factor (applied on the same periodic basis as that on
which interest on such Initial Bond is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Initial Bond, 50 basis points (0.50%) over the yield
to maturity implied by (i) the yields reported, as of 10:00 A.M. (New
York City time) on the second Business Day preceding the Redemption
Date with respect to such Called Principal, on the display designated
as "Gov't PX" of the Bloomberg Financial Market Services (or, if not
available, such other display as may replace such display on the
Bloomberg Financial Market Services or any other nationally recognized
trading screen reporting on-line intra-day trading in U.S. Treasury
securities), for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal
as of such Redemption Date, or (ii) if such yields are not reported as
of such time or the yields reported as of such time are not
ascertainable (including by way of interpolation), the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business Day
preceding the Redemption Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such
Called Principal and trading in the secondary market at the price
closest to par as of such Redemption Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury xxxx
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with a remaining average life
closest to and greater than the Remaining Average Life and trading in
the secondary market at the price closest to par and (2) the actively
traded U.S. Treasury security with a remaining average life closest to
and less than the Remaining Average Life and trading in the secondary
market at the price closest to par.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between
A-13
the Redemption Date with respect to such Called Principal and the scheduled due
date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Initial Bond, all payments of such Called
Principal and interest thereon that would be due after the Redemption
Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that, if
such Redemption Date is not a date on which interest payments are due
to be made under the terms of such Initial Bond, then the amount of the
next succeeding scheduled interest payment will be reduced by the
amount of interest accrued to such Redemption Date and required to be
paid on such Redemption Date pursuant to Article III.
"Master Services Agreements" means, collectively, the Human
Resources Master Services Agreements, dated as of July 1, 1999, entered into by
the Company with each of Cleco, Cleco Utility Group Inc., Utility Construction &
Technology Solutions LLC, Cleco Energy LLC, CLE Intrastate Pipeline and CLE
Resources, and any Replacement Project Document entered into in substitution
therefor.
"Master Use Agreements" means, collectively, the Master Use
Agreements for Transfer of Assets, Goods and Services, dated as of July 1, 1999,
entered into by the Company with each of Cleco, Cleco Utility Group Inc.,
Utility Construction & Technology Solutions LLC, Cleco Energy LLC, CLE
Intrastate Pipeline and CLE Resources, and any Replacement Project Document
entered into in substitution therefor.
"Material Adverse Effect" means a material adverse effect on
(1) the business, property, prospects, financial position or results of
operation of the Company, (2) the validity, perfection or priority of the Liens
on the Collateral, (3) the ability of the Collateral Agent to enforce its rights
and remedies under the Financing Documents or (4) the ability of the Company to
perform any of its material obligations under the Transaction Documents.
"Material Project Document" means (a) the Project Documents in
effect as the Closing Date and (b) any Additional Project Document (i) with a
term of at least six months or (ii) pursuant to which the revenues earned or
payments made are in excess of $2,000,000 on an annual basis.
"Members" means the members of the Company as set forth in the
Operating Agreement.
"Monies" means all cash, payments, Permitted Investments and
other amounts (including instruments evidencing such amounts) on deposit in or
credited to any Account.
"Monthly Date" means the last day of each calendar month.
"Moody's" means Xxxxx'x Investors Service, Inc., provided that
it maintains a rating on the Bonds or the Person in question, as the case may
be.
A-14
"Mortgage" means the Mortgage, Assignment of Rents, Security
Agreement and Financing Statement, dated as of December 10, 1999, by the Company
in favor of the Collateral Agent.
"Mortgaged Property" has the meaning specified in the
Mortgage.
"Multiemployer Plan" means a Plan which is a multliemployer
plan as defined in Section 4001(a)(3) of ERISA.
"MW" means a unit of electrical energy equal to one million
xxxxx of power.
"Non-Cleco Parties" means, collectively, Siemens Westinghouse
Power Corporation, Xxxxxxxx Energy Marketing & Trading Company and The Xxxxxxxx
Companies, Inc.
"Non-Completion Event" has the meaning specified in Section
3.3(a)(D) of the Indenture.
"Officer's Certificate" means a certificate executed by an
Authorized Representative.
"O&M Account" means the Account of such name established under
the Depositary Agreement and held under account number 6800 0603 03.
"O&M Contract" means the Operations and Maintenance Agreement
to be executed by and between the Company and Cleco Generation Services LLC, and
any Replacement Project Document entered into in replacement thereof.
"O&M Costs" means all amounts disbursed by or on behalf of the
Company for the operation, maintenance, administration, repair or improvement of
the Project (other than costs funded with withdrawals from the Major Maintenance
Reserve Account), including, without limitation, premiums on insurance policies,
property and other taxes, and payments under the relevant operating and
maintenance agreements, leases, royalty and other land use agreements, fees,
expenses and any other payments required under the Project Documents.
"O&M Guaranty" means the Operation and Maintenance Guaranty to
be executed by Cleco in favor of the Company, and any Replacement Project
Document entered into in replacement thereof.
"O&M Operator" means Cleco Generation Services LLC or such
other Person that becomes operator under the O&M Contract.
"Opinion of Counsel" means a written opinion of counsel for
any Person either expressly referred to herein or otherwise reasonably
satisfactory to the Trustee which may include, without limitation, counsel for
the Company and counsel for any Affiliate of the Company, whether or not such
counsel is an employee of the Company or such Affiliate.
A-15
"Optional Modifications" means modifications or improvements
to, and for the benefit of, the Project other than Required Modifications or
Expansion Modifications.
"Ordinary Equity Contribution" has the meaning specified in
the Equity Contribution Agreement.
"Outstanding," in connection with Bonds means, as of the time
in question, all Bonds authenticated and delivered under the Indenture, except
(i) Bonds theretofore cancelled or required to be cancelled under Section 2.10
of the Indenture; (ii) Bonds for which provision for payment shall have been
made in accordance with the Indenture; and (iii) Bonds in substitution for which
other Bonds have been authenticated and delivered pursuant to the Indenture, and
subject in any event to the terms and provisions of Section 7.3 of the
Indenture.
"Paying Agent" means the Trustee or any other Person appointed
to serve as Paying Agent under Section 10.12 of the Indenture.
"Payment Date" means, with respect to any Secured Obligations,
the next Interest Payment Date or Principal Payment Date.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Counterparty" means, in connection with an Interest
Rate Protection Agreement, a financial institution whose long term unsecured and
unguaranteed senior debt is rated "A" or higher by S&P and "A2" or higher by
Moody's or which can be collateralized to such a level.
"Permitted Debt" is defined in Section 5.18 of the Indenture.
"Permitted Investments" is defined in Section 5.24 of the
Indenture.
"Permitted Lien" is defined in Section 5.19 of the Indenture.
"Person" means any individual, sole proprietorship,
corporation, partnership, joint venture, limited liability partnership, limited
liability company, trust, unincorporated association, institution, Governmental
Authority or any other entity.
"Plan" means an employee benefit or other plan established or
maintained by the Company or any Commonly Controlled Entity and which is covered
by Title IV of ERISA, other than a Multiemployer Plan.
"Pledge Agreement" means the Pledge Agreement, dated as of
December 10, 1999, from Cleco Midstream to the Collateral Agent.
"Pre-Completion Revenues" means all revenues received by or on
behalf of the Company prior to the date on which the Project achieves
Completion, but excluding Loss Proceeds and Title Insurance Proceeds required to
be deposited into the Redemption Account and other similar non-recurring
receipts required to be deposited into the Redemption Account.
A-16
"Principal Payment Date" means (i) with respect to the Bonds,
the date on which all or a portion of the principal of such Bonds becomes due
and payable as provided therein or in the Indenture, whether on a scheduled date
for payment of principal, at a Redemption Date, the Final Maturity Date,
declaration of acceleration or otherwise and (ii) with respect to any other
Secured Obligations, the date on which all or a portion of the principal of such
Secured Obligations becomes due and payable pursuant to the terms thereof,
whether on a scheduled date for payment of principal, at a redemption date, a
final maturity date, declaration of acceleration or otherwise.
"Project" means the Facility, together with the associated
equipment, facilities, ancillary structures and related contractual and property
interests, including, without limitation, any capital improvements thereto.
"Project Costs" has the meaning specified in the Depository
Agreement.
"Project Documents" means collectively, the Tolling Agreement,
the Tolling Guaranty, the Tolling Side Letter, the Tolling Subordination
Agreement, the EPC Contract, the EPC Guaranty, the O&M Contract, the O&M
Guaranty, the Maintenance Agreement, the Master Use Agreement, the Gas
Transportation Guaranty, the Master Services Agreements, the Interconnection
Agreement, the Gas Transportation Agreement, the Start-Up Gas Agreement, the
Start-Up Power Agreement and any Additional Project Document.
"Project Party" means any party to a Project Document other
than the Company.
"PUHCA" means the Public Utility Holding Company Act of 1935,
as amended.
"Rating Agency" means Moody's, provided that Moody's maintains
a rating on the Bonds or, if Moody's does not retain a rating of the Bonds, S&P
or any other nationally recognized credit rating agency of similar standing
which maintain a rating of the Bonds.
"Rating Downgrade" means, at any time, a lowering of the
Rating Agency's then-current rating of the Bonds.
"Rating Reaffirmation" means a reaffirmation by the Rating
Agency of its then current credit ratings of the Bonds.
"Redemption Account" means the Account of such name
established pursuant to the Depositary Agreement and held under account
number6800 0603 07.
"Redemption Date" means the date on which Bonds will be
redeemed in accordance with the terms of this Indenture, which date will be
specified in an Officer's Certificate of the Company or a written determination
of the Trustee, in each case delivered in accordance with this Indenture.
"Redemption Fund" has the meaning specified in Section 3.2 of
the Indenture.
"Redemption Price" means an amount equal to the principal
amount, premium (if any) and interest accrued through the Redemption Date to be
paid for Bonds redeemed prior to
A-17
maturity in accordance with the terms of this Indenture, as specified in the
notice of redemption given pursuant to Section 3.4 of the Indenture.
"Registrar" has the meaning specified in Section 2.5 of the
Indenture.
"Replacement Project Document" means any Additional Project
Document entered into in replacement of a Project Document (1) with
substantially similar economic effect on the Company as the Project Document
being replaced and (2) with a counterparty having substantially similar
creditworthiness and experience as the counterparty to the Project Document
being replaced.
"Required Holders" means those Holders holding more than 50%
in aggregate principal amount of the Outstanding Bonds, except where otherwise
expressly provided.
"Required Modifications" means those modifications or
improvements to the Project which are reasonably necessary for the Project to
remain in compliance with applicable laws and Governmental Approvals, as
confirmed in writing by the Independent Engineer.
"Required Project Completion Date" has the meaning specified
in the EPC Contract in effect as of the Closing Date, without giving effect to
any subsequent amendments or modifications thereto (other than such amendments
or modifications which are made in accordance with the Financing Documents).
"Required Secured Parties" means, at any time, Persons that at
such time hold at least a majority of the Combined Exposure; provided that, for
purposes of directing actions of the Collateral Agent, the Trustee shall vote on
all matters under the Intercreditor Agreement in an amount equal to the
aggregate principal amount of the Outstanding Bonds, subject, however, in all
events, to the terms and provisions of the Indenture.
"Responsible Officer" means (i) with respect to the Collateral
Agent, the president or any vice president, assistant vice president or the
trust officer of the Collateral Agent to whom any matter has been referred
because of such officer's knowledge and familiarity with the particular subject
and (ii) with respect to the Trustee, the president or any vice president,
assistant vice president or the trust officer of the Trustee to whom any matter
has been referred because of such officer's knowledge and familiarity with the
particular subject.
"Restricted Payments" means, with respect to any Person, (1)
the declaration and payment of distributions, dividends or any other similar
payment made on account of the equity of such Person in cash, property,
obligations or other securities, (2) any payment of the principal of or interest
on any Subordinated Debt of such Person or (3) the making of loans or advances
by such Person to any Affiliate of such Person.
"Revenue Account" means the Account of such name established
under the Depositary Agreement and held under account number 6800 0603 02.
"S&P" means Standard & Poor's Ratings Group.
A-18
"Scheduled Payment Date" means, (1) with respect to the
Indenture and the Bonds, each March 1 and September 1, and (2) with respect to
any other Permitted Debt, the dates set forth in the documents evidencing such
Permitted Debt for the scheduled payment of principal of and interest on such
Permitted Debt.
"Secured Obligations" shall have the meaning specified in the
Intercreditor Agreement.
"Secured Parties" means, collectively, the Trustee (on behalf
of the Holders of the Bonds) and any other holder of Permitted Debt (or any
agent or trustee therefor) which becomes a "Secured Party" under the
Intercreditor Agreement in accordance with the terms thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means Bank One Trust Company, N.A.,
and its successors in such capacity.
"Security Agreement" means the Security Agreement, dated as of
December 10, 1999, between the Company and the Collateral Agent.
"Security Documents" means, collectively, the Security
Agreement, the Mortgage, the Pledge Agreement, all other documents pursuant to
which a Lien on the Collateral is granted or purported to be granted to the
Collateral Agent and the consents to assignment of the Project Documents.
"Security Interest" means any perfected and enforceable Lien
on Collateral granted to the Collateral Agent pursuant to the requirements of
any applicable Financing Document.
"Site" means the "Premises" as such term is defined in the
Mortgage.
"Start-Up Gas Agreement" means the Base Contract for
Short-Term Sale and Purchase of Natural Gas, dated as of November 1, 1999, by
and between CLE Intrastate Pipeline Company, Inc. and the Company.
"Start-Up Power Agreement" means the Agreement for Electric
Service by and between Cleco Utility Group, Inc. and the Company.
"Subordinated ACS LOC Payment Sub-account" means the
sub-account of such name established under the Depositary Agreement and held
under account number 6800 0603 010.
"Subordinated ACS LOC Principal Amount" means the principal
amount due on any ACS LOC Loan which is subordinated to the Senior Debt.
"Subordinated Claims Account" means the Account of such name
established under the Depositary Agreement and held under the following account
number 6800 0603 12.
A-19
"Subordinated Debt" means Debt (and the note or other
instrument evidencing the same) which has been subordinated on terms and
conditions substantially the same as those attached hereto as Exhibit C, to the
prior payment of amounts owing under this Indenture and the Bonds.
"Subordinated Debt Account" means the Account of such name
established under the Depositary Agreement and held under account number 6800
0603 12.
"Supplemental Indenture" means an indenture supplemental to
this Indenture entered into by the Company and the Trustee for any of the
purposes set forth in Article VIII.
"Title Defect" means the existence of any material defect in
the title to the Site (other than Permitted Liens) in effect on the Closing Date
which entitles the Collateral Agent to make a claim under the title insurance
policy for the Project required to be delivered under the Bond Purchase
Agreement.
"Title Defect Sub-account" means the sub-account of such name
established under the Depositary Agreement and held under account number 6800
0603 14.
"Title Event Redemption" has the meaning specified in Section
3.3(a)(B) of the Indenture.
"Title Insurance Proceeds" means all proceeds received in
connection with a Title Defect by the Company under the title insurance policy
for the Project required to be delivered under the Bond Purchase Agreement.
"Tolling Agreement" means the Capacity Sale and Tolling
Agreement, dated as of November 10, 1999, between the Company and Xxxxxxxx
Energy Marketing & Trading Company, and any Replacement Project Document entered
into in substitution therefore.
"Tolling Agreement Damages Payment" has the meaning specified
in Section 3.3(a)(E) of the Indenture.
"Tolling Agreement Damages Sub-account" means the sub-account
of such name established under the Depositary Agreement and held under account
number 6800 0603 17..
"Tolling Guaranty" means the Corporate Guaranty to be executed
by The Xxxxxxxx Companies, Inc. in favor of the Company, and any Replacement
Project Document entered into in substitution therefor.
"Tolling Side Letter" means the Tolling Guaranty Side Letter
to be executed by and between Xxxxxxxx Energy Marketing & Trading Company and
the Company.
"Tolling Subordination Agreement" means the Subordination
Agreement to be executed by and between Xxxxxxxx Energy Marketing & Trading
Company, the Trustee and the Collateral Agent.
A-20
"Transaction Documents" means, collectively, the Project
Documents and the Financing Documents.
"Trigger Event" has the meaning specified in the Intercreditor
Agreement.
"Trigger Event Date" has the meaning specified in Section 6(a)
of the Intercreditor Agreement.
"Trustee" means the Person named as "Trustee" in the Preamble
of this Indenture and its successors, and any corporation resulting from or
surviving any consolidation or merger to which it or its successors may be a
party, or any successor to all or substantially all of its corporate trust
business, provided that any such successor or surviving corporation shall be
eligible for appointment as trustee pursuant to Section 10.8, until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter shall mean such successor Trustee.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York or any other relevant
jurisdiction.
"Xxxxxxxx Subordination Agreement" means the Subordination
Agreement, dated as of December 10, 1999, among Xxxxxxxx Energy Marketing &
Trading Company, Bank One Trust Company, N.A., as Trustee and Collateral Agent,
and the Company.
A-21
Exhibit B
to Trust Indenture
[Form of Initial Bond]
CLECO XXXXXXXXXX LLC
8.82% Senior Secured Bond
due 2019
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES
LAWS, AND ACCORDINGLY MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNDER
CIRCUMSTANCES THAT WOULD RESULT IN A VIOLATION OF THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OR SUCH OTHER LAWS.
CLECO XXXXXXXXXX LLC
8.82% Senior Secured Bond due 2019
No. R-__ Issue Date: ______________
$_________ Maturity Date: September 1, 2019
Private Placement Number: 18551* AA 3 New York, New York
CLECO XXXXXXXXXX LLC, a Louisiana limited liability company
(hereinafter called the "Company", which term includes any successor or assign
under the Indenture referred to below), for value received hereby promises to
pay to [__________], or its registered assigns, the principal amount of
_____________ DOLLARS ($__________) such payment to be made in semiannual
installments on March 1 and September 1 of each year (commencing March 1, 2001)
and ending on the Maturity Date set forth above (the "Maturity Date"), each such
installment to be in an amount equal to the principal amount specified for the
applicable payment date on Schedule I attached hereto (provided that the portion
of the principal amount remaining unpaid on the Maturity Date, together with all
interest accrued thereon, shall in any and all cases be due and payable on the
Maturity Date), and to pay interest on the unpaid portion of the principal
amount hereof at an interest rate per annum equal to 8.82% (the "Interest
Rate"), such interest to be payable from the most recent interest payment date
to which interest has been paid or, if no interest has been paid, from the Issue
Date set forth above, semiannually on March 1 and September 1 of each year,
commencing March 1, 2000, until the principal amount hereof is paid in full.
This Bond shall bear interest on any overdue principal and, to the extent
enforceable under applicable law, on any overdue interest and premium (if any)
at the Default Rate specified in the Indenture referred to below. Interest on
this Bond shall be computed on the basis of a 360-day year, consisting of twelve
(12) thirty (30) day months.
Payments of principal of, interest on and any premium (if any)
with respect to this
B-1
Bond are to be made in lawful money of the United States of America at the
Corporate Trust Office of the Trustee in New Orleans, Louisiana or at such other
place as may be provided pursuant to the Indenture referred to below or, in
certain circumstances, to the holder of this Bond as provided in Section 2.2(f)
of said Indenture.
This Bond is one of an authorized series of Bonds of the
Company known as its 8.82% Senior Secured Bonds due 2019 (the "Bonds")
originally issued in the aggregate principal amount of $218,600,000 pursuant to
the Trust Indenture, dated as of December 10, 1999 (as the same may be amended,
modified or supplemented from time to time, the "Indenture"), between the
Company and Bank One Trust Company, N.A., as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture), as contemplated by the Bond
Purchase Agreement, dated as of December 10, 1999 (the "Bond Purchase
Agreement"), between the Company and the institutional investors named in
Schedule A thereto. All capitalized terms used herein, unless defined herein,
shall have the meanings ascribed to them in the Indenture.
All Bonds are secured equally and ratably with one another.
Reference is hereby made to the Indenture for a description of the nature and
extent of the Bonds and the respective rights of the Holders of the Bonds and of
the Trustee and the Company in respect of the Bonds and the terms upon which the
Bonds are made and are to be authenticated and delivered.
The principal of, and interest on, this Bond are payable from,
and secured by, assets subject to the Liens on the Collateral, in accordance
with the terms of the Indenture and the Security Documents. The Holder of this
Bond is entitled to the benefits of the Bond Purchase Agreement, the Indenture
and the Security Documents and, subject in the case of the Security Documents to
the terms of the Intercreditor Agreement referred to below, may enforce the
agreements of the Company contained therein and exercise the remedies provided
for thereby or otherwise available in respect thereof.
The Bonds are subject to a Collateral Agency and Intercreditor
Agreement dated as of December 10, 1999 (the "Intercreditor Agreement"), among
the Company, the Trustee, Bank One Trust Company, N.A. as Securities
Intermediary and Bank One Trust Company, N.A. as Collateral Agent.
The Bonds are subject to optional redemption by the Company at
any time in whole or, after Completion, in part at the Redemption Price
specified in the Indenture, which Redemption Price will include a Make-Whole
Premium.
The Bonds are, under certain conditions, subject to mandatory
redemption as set forth in Section 3.3 of the Indenture.
Notice of any redemption of Bonds will be given at least
thirty (30) days but not more than sixty (60) days prior to the Redemption Date
to each Holder at its registered address.
The unpaid portion of principal, together with all interest
accrued thereon and all other amounts due hereunder, shall be due and payable in
full, as provided in the Indenture, upon the occurrence of certain Events of
Default as set forth in Section 6.1 of the Indenture.
Recourse under this Bond is limited as set forth in Section
11.12 of the Indenture.
B-2
This Bond is a registered Bond, and as provided in the
Indenture, upon surrender of this Bond for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Bond for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company and the Trustee may treat the Person in
whose name this Bond is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and neither the Company nor the
Trustee will be affected by any notice to the contrary. No service charge will
be made to any Holder of Bonds for any transfer or exchange, but the Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
THIS BOND 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 ENTIRELY WITHIN THE STATE OF NEW YORK,
Unless the certificate of authentication hereon has been
executed by the Trustee by manual or facsimile signature, this Bond shall not be
entitled to any benefit under such Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CLECO XXXXXXXXXX LLC
By:___________________________
Name:
Title:
Dated:
B-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Initial Bonds referred to in the within-mentioned
Indenture.
BANK ONE, TRUST COMPANY, N.A.
as Trustee
By:
Name:
Title:
Dated:
B-4
ASSIGNMENT FORM
(To be executed by the registered Holder if such Holder
desires to transfer this Bond)
To: Bank One Trust Company, N.A.
27th Floor
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto:
Name of Assignee: ________________________________
Social Security Number or Other Identifying
Number of Assignee:_____________________________
Typewritten Name and Address
(including zip code) of Assignee: ___________________________________
the within Bond and all rights thereunder, hereby irrevocably constituting and
appointing __________________ attorney to transfer said Bond on the books of the
Company, with full power of substitution in the premises.
By: _________________________
Dated:_______________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the first page of the within instrument in every
particular, without alteration or enlargement or any change whatsoever
B-5
Schedule I
PRINCIPAL AMORTIZATION
The principal of this Bond is payable in semiannual installments on
each Principal Payment Date specified in the table below, commencing March 1,
2001, each such installment to be in an amount equal to the product of (a) the
principal amount set forth opposite the applicable Principal Payment Date
specified in such table multiplied by (b) a fraction, the numerator of which is
the stated principal amount of this Bond and the denominator of which is
$218,600,000:
Principal Amount Payable on $218,600,000
Bonds Issued
Principal Payment Date Pursuant to this Indenture
March 1, 2001 $2,186,000
September 1, 2001 2,186,000
March 1, 2002 2,733,000
September 1, 2002 2,733,000
March 1, 2003 3,006,000
September 1, 2003 3,006,000
March 1, 2004 2,459,000
September 1, 2004 2,459,000
March 1, 2005 3,006,000
September 1, 2005 3,006,000
March 1, 2006 3,552,000
September 1, 2006 3,552,000
March 1, 2007 3,826,000
September 1, 2007 3,826,000
March 1, 2008 4,099,000
September 1, 2008 4,099,000
March 1, 2009 3,552,000
September 1, 2009 3,552,000
March 1, 2010 4,099,000
September 1, 2010 4,099,000
March 1, 2011 4,645,000
September 1, 2011 4,645,000
March 1, 2012 5,192,000
September 1, 2012 5,192,000
March 1, 2013 6,012,000
September 1, 2013 6,012,000
March 1, 2014 7,378,000
September 1, 2014 7,378,000
March 1, 2015 8,198,000
September 1, 2015 8,198,000
March 1, 2016 9,017,000
B-6
September 1, 2016 9,017,000
March 1, 2017 10,383,000
September 1, 2017 10,383,000
March 1, 2018 11,202,000
September 1, 2018 11,202,000
March 1, 2019 14,755,000
September 1, 2019 14,755,000
B-7
Exhibit C
to Trust Indenture
SUBORDINATION PROVISIONS
All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed thereto in the Trust Indenture dated as
of December 10, 1999 (as amended, supplemented or modified from time to time,
the "Indenture") between Cleco Xxxxxxxxxx LLC and Bank One Trust Company, N.A.,
in its capacity as Trustee for the holders of the Bonds.
[NAME OF SUBORDINATED LENDER] (together with its successors
and assigns, the "Subordinated Lender") hereby agrees for the benefit of the
Secured Parties that all [DESCRIBE SUBORDINATED LIABILITIES] (the "Subordinated
Obligations") are and shall be junior and subordinate, to the extent and in the
manner set forth hereinafter, in right of payment to the prior indefeasible
payment or satisfaction in full of all Secured Obligations. In furtherance
thereof, each of the Secured Parties, the Collateral Agent and the Subordinated
Lender further agrees that:
(a) (i) The Subordinated Lender shall not ask, demand, xxx
for, take or receive from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner (including, without limitation,
from or by way of the Collateral or any guaranty of payment or performance),
payment of all or any of the Subordinated Obligations unless and until the
Financing Commitments shall have been terminated and the Secured Obligations
shall have been paid or otherwise satisfied in full except to the extent of
payments from the Subordinated Claims Account and payments from the Subordinated
Debt Account, in each case in accordance with Section 3.2(b) of the Depositary
Agreement. For the purposes of these provisions, the Secured Obligations shall
not be deemed to have been paid or satisfied in full until those Secured
Obligations shall have been indefeasibly so paid to the Secured Parties or so
otherwise satisfied (after the passage of any relevant preference periods).
(ii) Upon any distribution of all or any of the assets of the
Company to creditors of the Company upon the dissolution, winding up,
liquidation, arrangement, reorganization or composition of the Company, whether
in any bankruptcy, insolvency, arrangement, reorganization, receivership or
similar proceedings or upon an assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of the Company or otherwise, any
payment or distribution of any kind (whether in cash, property or securities)
which otherwise would be payable or deliverable upon or with respect to the
Subordinated Obligations shall be paid or delivered directly to the Collateral
Agent for application (in the case of cash) to, or as collateral (in the case of
non-cash property or securities) for, the payment or prepayment of the Secured
Obligations until the Secured Obligations have been paid or otherwise satisfied
in full.
(iii) Each of the Secured Parties may demand specific
performance of these terms of subordination, whether or not the Company shall
have complied with any of the provisions hereof applicable to them at any time
when the Subordinated Lender shall have failed to comply with any of such
provisions applicable to it. The Subordinated Lender hereby irrevocably
C-1
waives any defense based on the adequacy of a remedy at law, which might be
asserted as a bar to such remedy of specific performance.
(iv) So long as there are any Financing Commitments or any of
the Secured Obligations shall remain unpaid or otherwise unsatisfied, the
Subordinated Lender shall not commence or join with any creditor other than the
Collateral Agent in commencing any proceeding referred to in subsection (ii)
above for the payment of any amounts which otherwise would be payable or
deliverable upon or with respect to the Subordinated Obligations.
(v) Subject to the termination of the Financing Commitments
and the indefeasible payment or satisfaction in full of all of the Secured
Obligations, the Subordinated Lender shall be subrogated to the rights of the
Secured Parties to receive payments or distributions of assets of the Company
made on the Secured Obligations until the Subordinated Obligations have been
satisfied in full.
The foregoing provisions regarding subordination are for the
benefit of the Secured Parties and the Company and shall be enforceable by them
directly against the Subordinated Lender, and no Secured Party or the Company
shall be prejudiced in its right to enforce subordination of any of the
Subordinated Obligations by any act or failure to act by the Company or anyone
in custody of any of its respective assets or property. Notwithstanding anything
to the contrary contained in the foregoing provisions, the Subordinated Lender
may receive distributions in respect of the Subordinated Obligations from the
Company to the extent that such distributions are permitted pursuant to the
Depositary Agreement.
(b) So long as any Secured Obligations remain outstanding, the
following provisions shall apply:
(i) If a Trigger Event shall have occurred and be continuing,
the Collateral Agent, on behalf of the Secured Parties and the Company, shall be
permitted and is hereby authorized to take any and all actions to exercise any
and all rights, remedies and options which it may have under the Security
Documents or the Intercreditor Agreement.
(ii) Until the Debt Termination Date, the Subordinated Lender
shall not, without the prior written consent of the Secured Parties, (x)
exercise any rights or enforce any remedies or assert any claim with respect to
the Collateral, (y) seek to foreclose any Lien or sell the Collateral, or (z)
take any action, directly or indirectly, or institute any proceedings, directly
or indirectly, with respect to any of the foregoing.
(iii) The Subordinated Lender hereby waives (x) notice of the
existence, creation or non-payment of all or any of the Secured Obligations and
(y) to the fullest extent permitted by law, any right it may have to require the
Collateral Agent to marshal assets.
(c) Subject to the terms of the Intercreditor Agreement, the
Secured Parties may, at any time and from time to time, without any consent of
or notice to the Subordinated Lender and without impairing or releasing the
obligations of the Subordinated Lender: (v) amend in any manner any agreement
under which any of the Secured Obligations is outstanding in accordance with the
terms thereof (other than the priority of payments to Subordinated Debt under
the Depositary Agreement); (w) sell, exchange, release, not perfect and
otherwise deal with the
C-2
Collateral or other property at any time pledged,
assigned or mortgaged to secure the Secured Obligations in accordance with the
Security Documents; (x) release anyone liable in any manner under or in respect
of the Secured Obligations; (y) exercise or refrain from exercising any rights
against the Company and others; and (z) apply any sums from time to time
received to payment or satisfaction of the Secured Obligations.
C-3
Exhibit D
to Trust Indenture
D-1
