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 ”).
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