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 LLCBy:
              /s/  Charles
      A. MannixName:
              Charles
      A. MannixTitle:
              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
      AgentBy:
              /s/
      Hussam S. AlsahlaniName:
              Hussam
      S. AlsahlaniTitle:
              Senior
      Associate
 
 
 Cleco
Power LLC Amendment No. 1 and Waiver No. 1
  
  JPMORGAN
      CHASE BANK, N.A.,
                individually,
      and as a Syndication AgentBy:
              /s/  Helen
      D. DavisName:
              Helen
      D. DavisTitle:
              Vice
      President
  Cleco
Power LLC Amendment No. 1 and Waiver No. 1
  WESTLB
      AG, NEW YORK BRANCH,
                individually,
      and as a Syndication AgentBy:
              /s/  James
      AndersonName:
              James
      AndersonTitle:
              Director
  
  By:
              /s/  Anthony
      AlessandroName:
              Anthony
      AlessandroTitle:
              Executive
      Director
 
 Cleco
Power LLC Amendment No. 1 and Waiver No. 1
 
  KEYBANK
      NATIONAL ASSOCIATION, individually, and as a Documentation
      AgentBy:
              /s/  Paul
      J. PaceName:
              Paul
      J. PaceTitle:
              Senior
      Vice President
   Cleco
Power LLC Amendment No. 1 and Waiver No. 1
    UNION
      BANK OF CALIFORNIA, N.A.,
                individually,
      and as a Documentation AgentBy:
              /s/  Harvey
      HorowitzName:
              Harvey
      HorowitzTitle:
              Vice
      President
   Cleco
Power LLC Amendment No. 1 and Waiver No. 1
  
  CALYON,
      NEW YORK BRANCH,
                individually,
      and as a Documentation AgentBy:
              /s/  Darrell
      StanleyName:
              Darrell
      StanleyTitle:
              Managing
      Director
 
  By:
              /s/  Sharada
      ManneName:
              Sharada
      ManneTitle:
              Director
  Cleco
Power LLC Amendment No. 1 and Waiver No. 1
 
  COBANK,
      ACB, individually, and as a
                Documentation
      AgentBy:
              /s/  Matthew
      BrillName:
              Matthew
      BrillTitle:
              Vice
      President
   Cleco
Power LLC Amendment No. 1 and Waiver No. 1
 
 COMERICA
      BANKBy:
              /s/  De
      Von LangName:
              De
      Von LangTitle:
              Assistant
      Vice President
 
 Cleco
Power LLC Amendment No. 1 and Waiver No. 1
  
 BANK
      HAPOALIM B.M.By:
              /s/  Charles
      McLaughlinName:
              Charles
      McLaughlinTitle:
              Senior
      Vice President
 
  By:
              /s/  Frederic
      S. BeckerName:
              Frederic
      S. BeckerTitle:
              Senior
      Vice President
 
 
  
 Cleco
Power LLC Amendment No. 1 and Waiver No. 1
 
  CREDIT
      SUISSE, CAYMAN ISLANDS BRANCHBy:
              /s/  Karim
      BlasettiName:
              Karim
      BlasettiTitle:
              Vice
      President
 
  By:
              /s/  Mikhail
      FaybusovichName:
              Mikhail
      FaybusovichTitle:
              Vice
      President
  
 Cleco
Power LLC Amendment No. 1 and Waiver No. 1
 
  
  GOLDMAN
      SACHS CREDIT PARTNERS L.P.By:
              /s/  Andrew
      CaditzName:
              Andrew
      CaditzTitle:
              Authorized
      Signatory
 
  Cleco
Power LLC Amendment No. 1 and Waiver No. 1
  CAPITAL
      ONE, NATIONAL ASSOCIATIONBy:
              /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 BANKBy:
              /s/  Eric
      B. GoebelName:
              Eric
      B. GoebelTitle:
              Vice
      President
                Whitney
      National Bank
 
  
  
  Cleco Power LLC
Amendment No. 1 and Waiver No. 1