exhibit105.htm


     

    
      

      

    

    
      

        EXHIBIT
10.5

         

        EXECUTION
COPY

      

       

      AMENDMENT NO. 1 AND
WAIVER NO. 1

       

      AMENDMENT
NO. 1 AND WAIVER NO. 1 (this “Amendment and
Waiver”), dated as of August 18, 2009, to and under the First Amended and
Restated Credit Agreement, dated as of June 2, 2006, among CLECO POWER LLC. (the
“Borrower”),
the LENDERS party thereto, JPMORGAN CHASE BANK, N.A. and WESTLB AG, NEW YORK
BRANCH, as Syndication Agents, KEYBANK NATIONAL ASSOCIATION, UNION BANK OF
CALIFORNIA, N.A., CALYON, NEW YORK BRANCH and COBANK, ACB, as Documentation
Agents and THE BANK OF NEW YORK MELLON (formerly The Bank of New York), as
Administrative Agent, (as amended, supplemented or otherwise modified, the
“Credit
Agreement”).

       

      RECITALS

       

      A.           Capitalized
terms used herein that are defined in the Credit Agreement shall have the same
meanings as therein defined.

       

      B.           Pursuant
to Section 4.10
of the Credit Agreement, the Borrower represents and warrants, among other
things, that the present value of all accumulated benefit obligations under each
Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent audited
financial statements reflecting such amounts, exceed by more than $10,000,000
the fair market value of the assets of such Plan, and that the present value of
all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent audited financial statements
reflecting such amounts, exceed by more than $10,000,000 the fair market value
of the assets of such underfunded Plans (the “Section 4.10
Representation”).  The Section 4.10 Representation is made at
the time of each Credit Event, in each Compliance Certificate and upon the
occurrence of each Storm Recovery Asset Sale (each a “Section 4.10 Representation
Event”).

       

      C.           As
at December 31, 2008, the present value of all accumulated benefit obligations
under all Plans exceeded the fair market value of the assets of such Plans by
approximately $61,400,000.  During the period from December 31, 2008
to date, there have been several Section 4.10 Representation Events and the
Borrower breached the Section 4.10 Representation on each such Section 4.10
Representation Event.  Each such breach constitutes a separate Event
of Default under Article 8(c) of the
Credit Agreement (each, a “Section 4.10 Representation
Event of Default”).

       

      D.           The
Borrower has requested that the Administrative Agent and Required Lenders waive
each Section 4.10 Representation Event of Default occurring on or before the
date hereof and amend Section 4.10 of the
Credit Agreement as herein set forth and the Administrative Agent and the
Lenders signing below are willing to do so subject to the terms and conditions
set forth in this Amendment and Waiver.

       

      Accordingly,
in consideration of the Recitals and the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Borrower, the Lenders
signing below and the Administrative 

       

       

      
        
          
          

        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
          
          

        

      

       

      Agent
hereby agree as follows:

       

      1.           The
Administrative Agent and the Lenders signing below each hereby waives each
Section 4.10 Representation Event of Default occurring on or before the date
hereof.

       

      2.           Section 4.10 of the
Credit Agreement is hereby amended by substituting “$75,000,000” for
“10,000,000” in both instances in which it occurs therein.

       

      3.           Paragraphs
1 and 2 hereof shall not be effective until such time as the following
conditions are satisfied:

       

      (a)           the
Administrative Agent (or its counsel) shall have received from the Borrower and
Required Lenders either (i) a counterpart of this Amendment and Waiver signed on
behalf of such Person or (ii) written evidence satisfactory to the
Administrative Agent (which may include facsimile transmission of a signed
signature page of this Amendment and Waiver) that such Person has signed a
counterpart of this Amendment and Waiver;

       

      (b)           the
Administrative Agent shall have received, for the account of each Lender which
has executed and delivered this Amendment and Waiver on or before 3:00 p.m. (New
York time) on the date hereof, a fee equal to 0.05% of such Lender’s Commitment
as in effect on the date hereof; and

       

      (c)           all
other fees and expenses payable in connection with this Amendment and Waiver,
including, without limitation, the reasonable fees and expenses of counsel to
the Administrative Agent to the extent invoiced, shall have been
paid.

       

      4.           The
Borrower hereby (a) reaffirms and admits the validity and enforceability of each
Loan Document to which it is a party and its obligations thereunder, and agrees
and admits that it has no defense to or offset against any such obligation, (b)
represents and warrants that no Default (other than the Section 4.10
Representation Events of Default) has occurred and is continuing, (c) represents
and warrants that all of the representations and warranties made by it in the
Loan Documents to which it is a party (other than the Section 4.10
Representations) are true and correct in all material respects, both immediately
before and after giving effect to this Amendment and Waiver (except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date), and (d) the
Section 4.10 Representations are true and correct in all material respects after
giving effect to this Amendment and Waiver.

       

      5.           This
Amendment and Waiver may be executed in any number of counterparts, each of
which shall be an original and all of which shall constitute one
agreement.  It shall not be necessary in making proof of this
Amendment and Waiver to produce or account for more than one counterpart signed
by the party to be charged.  Delivery of an executed counterpart by
facsimile transmission shall be effective as delivery of a manually executed
counterpart.

       

      
        
          -2-

        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        


      

       

      6.           The
Credit Agreement and the other Loan Documents shall in all other respects remain
in full force and effect, and no waiver herein in respect of any term or
condition of any Loan Document shall be deemed to be a waiver or other
modification in respect of any other term or condition of any Loan
Document.

       

      7.           THIS
AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.

       

      [Remainder
of Page is Intentionally Blank]

       

       

       

       

      
        
          -3-

        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

       

      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 and Waiver
No. 1 to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.

       

      
        	
                CLECO
      POWER LLC

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Charles
      A. Mannix

              
	
                Name:

              	
                Charles
      A. Mannix

              
	
                Title:

              	
                Vice
      President – Tax and Treasurer

              


      

      


       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

      


      
        	
                THE
      BANK OF NEW YORK MELLON, 

                individually,
      as Issuing Bank and as 

                Administrative
      Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/
      Hussam S. Alsahlani

              
	
                Name:

              	
                Hussam
      S. Alsahlani

              
	
                Title:

              	
                Senior
      Associate

              


      

      


      


      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

       

      


       

      
        	
                JPMORGAN
      CHASE BANK, N.A., 

                individually,
      and as a Syndication Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Helen
      D. Davis

              
	
                Name:

              	
                Helen
      D. Davis

              
	
                Title:

              	
                Vice
      President

              


      

       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        


      

       

      
        	
                WESTLB
      AG, NEW YORK BRANCH,

                 individually,
      and as a Syndication Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  James
      Anderson

              
	
                Name:

              	
                James
      Anderson

              
	
                Title:

              	
                Director

              


      

       

      


       

      
        	
                By:

              	
                /s/  Anthony
      Alessandro

              
	
                Name:

              	
                Anthony
      Alessandro

              
	
                Title:

              	
                Executive
      Director

              


      

      


      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

      


       

      
        	
                KEYBANK
      NATIONAL ASSOCIATION, individually, and as a Documentation
      Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Paul
      J. Pace

              
	
                Name:

              	
                Paul
      J. Pace

              
	
                Title:

              	
                Senior
      Vice President

              


      

       

       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

       

       

       

      
        	
                UNION
      BANK OF CALIFORNIA, N.A.,

                 individually,
      and as a Documentation Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Harvey
      Horowitz

              
	
                Name:

              	
                Harvey
      Horowitz

              
	
                Title:

              	
                Vice
      President

              


      

       

       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

       

      
 

       

      
        	
                CALYON,
      NEW YORK BRANCH,

                 individually,
      and as a Documentation Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Darrell
      Stanley

              
	
                Name:

              	
                Darrell
      Stanley

              
	
                Title:

              	
                Managing
      Director

              


      

      


       

      
        	
                By:

              	
                /s/  Sharada
      Manne

              
	
                Name:

              	
                Sharada
      Manne

              
	
                Title:

              	
                Director

              


      

       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

      
 

       

      
        	
                COBANK,
      ACB, individually, and as a 

                Documentation
      Agent

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Matthew
      Brill

              
	
                Name:

              	
                Matthew
      Brill

              
	
                Title:

              	
                Vice
      President

              


      

       

       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        


      

      


      
        	
                COMERICA
      BANK

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  De
      Von Lang

              
	
                Name:

              	
                De
      Von Lang

              
	
                Title:

              	
                Assistant
      Vice President

              


      

      


      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        


      

       

      


      
        	
                BANK
      HAPOALIM B.M.

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Charles
      McLaughlin

              
	
                Name:

              	
                Charles
      McLaughlin

              
	
                Title:

              	
                Senior
      Vice President

              


      

      


       

      
        	
                By:

              	
                /s/  Frederic
      S. Becker

              
	
                Name:

              	
                Frederic
      S. Becker

              
	
                Title:

              	
                Senior
      Vice President

              


      

      


      


       

      


      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

      


       

      
        	
                CREDIT
      SUISSE, CAYMAN ISLANDS BRANCH

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Karim
      Blasetti

              
	
                Name:

              	
                Karim
      Blasetti

              
	
                Title:

              	
                Vice
      President

              


      

      


       

      
        	
                By:

              	
                /s/  Mikhail
      Faybusovich

              
	
                Name:

              	
                Mikhail
      Faybusovich

              
	
                Title:

              	
                Vice
      President

              


      

       

      
 

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

      


       

      


       

      
        	
                GOLDMAN
      SACHS CREDIT PARTNERS L.P.

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Andrew
      Caditz

              
	
                Name:

              	
                Andrew
      Caditz

              
	
                Title:

              	
                Authorized
      Signatory

              


      

      


       

      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        


      

       

      
        	
                CAPITAL
      ONE, NATIONAL ASSOCIATION

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Kermit
      W. Pharris, Jr.

              
	
                Name:

              	
                Kermit
      W. Pharris, Jr.

              
	
                Title:

              	
                Vice
      President

              


      

      


      
        
        

        
          Cleco
Power LLC Amendment No. 1 and Waiver No. 1

          
            

          

        

        
        

      

      


       

      
        	
                WHITNEY
      NATIONAL BANK

              
	 
      	 
      
	 
      	 
      
	
                By:

              	
                /s/  Eric
      B. Goebel

              
	
                Name:

              	
                Eric
      B. Goebel

              
	
                Title:

              	
                Vice
      President

                Whitney
      National Bank

              


      

      


       

      


       

      


       

      Cleco Power LLC
Amendment No. 1 and Waiver No. 1