EXHIBIT 10.4
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 CORPORATION. (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 Corporation 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 Administ
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