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Exhibit 4.1.7
WAIVER
AGREEMENT
Dated as of
June 9, 2006
among
CALPINE CONSTRUCTION FINANCE COMPANY,
L.P.
CCFC
FINANCE CORP.
THE GUARANTORS
NAMED HEREIN
and
WILMINGTON
TRUST FSB,
as Trustee
Relating to
the Indenture
Dated as of
August 14, 2003
and
Amended as of September 18, 2003,
January 14, 2004, March 5, 2004
and March
15, 2006
<PAGE>
WAIVER AGREEMENT
UNDER INDENTURE, dated as of June 9, 2006 (the
"Waiver Agreement"), among
Calpine Construction Finance
Company, L.P., a
Delaware limited partnership (the
"Company"), CCFC
Finance Corp., a Delaware
corporation ("Finance Corp."),
the Guarantors and Wilmington
Trust FSB, as
trustee (the "Trustee").
WHEREAS, the Company,
Finance Corp., the Guarantors and the Trustee
have executed that
certain Indenture, dated
as of August
14, 2003, as
supplemented by that certain Supplemental
Indenture, dated as of September
18,
2003, as further supplemented by that certain Second Supplemental
Indenture,
dated as of January 14, 2004, as
further supplemented by that
certain Third
Supplemental Indenture, dated as of March 5, 2004, and as further
supplemented
by that certain Fourth Supplemental Indenture,
dated as of March 15, 2006 (as
supplemented, the "Indenture"), in
connection with the co-issuance
by the
Company and Finance Corp. of certain Second
Priority Senior Secured
Floating
Rate Notes due 2011 (the "Notes");
WHEREAS, on December 20,
2005, Calpine Corporation
("Calpine") and
certain of its
controlled subsidiaries, including,
among others, Calpine
Operating Services Company,
Inc. and Calpine Energy Services,
L.P. ("CES"),
filed a voluntary proceeding for relief under Chapter 11 of the United States
Bankruptcy Code with the
United States Bankruptcy
Court for the Southern
District of New York (the "Proceeding");
WHEREAS, CES, the Company
and certain of the Company's subsidiaries
are parties to the Index Based Gas Sale and Power Purchase Agreement dated as
of
August 14, 2003, as amended (the "PPA"), pursuant to which the
Company purchases
natural gas from CES for its power generating
facilities, and CES purchases
power generated by the facilities from the Company;
WHEREAS, on November 1,
2005, as permitted under the Indenture, the
Company used net proceeds of
approximately $212.0 million from
the sale of one
of its facilities to make a prepayment to CES for gas under the PPA (the "Gas
Prepay Transaction");
WHEREAS, ordinarily under the PPA, the cost of gas
consumed by the
Company's facilities is
offset against the cost of power generated
by the
facilities, with CES paying the Company
only the net amount due, such payments
generally being made on the 25th of each month for services provided during the
prior month; however, due to the Gas Prepay Transaction, CES was obligated for
a
period of time to pay the full cost for the power under the PPA, without
offset,
which resulted in larger than usual payments owing to the Company under the
PPA;
WHEREAS, CES failed to timely make a number of payments
owing to
the Company under the PPA, including
in respect of gas
deliveries during
February 2006, approximately $18.5 million due on March 27, 2006 (the
"March PPA
Payment" );
WHEREAS, the
failure by CES to timely make the
March PPA Payment
constitutes an Event of Default under the
Indenture (the "March PPA Payment
Default");
WHEREAS, the Company has failed to timely provide to
the Holders a
financial report for the periods ended December 31, 2005 and March 31, 2006
(the
"Financial Reports") as required
to be provided to them pursuant to Section
4.03(1) of the Indenture;
WHEREAS, the failure by the
Company to timely provide the Financial
Reports constitutes a Default (the "Reporting Default," and together with the
March PPA Payment Default, the "Specified Defaults");
WHEREAS, pursuant to a consent solicitation, commenced as of June
6, 2006 and completed
as of June 9, 2006 (the
"Consent
Solicitation"), the
Company and Finance Corp. have requested that the Holders consent to a waiver
of
the Specified Defaults (the "Waiver");
WHEREAS, pursuant to Sections 6.04 and 9.02 of the
Indenture, the
Holders of at least a majority in aggregate
principal amount of the Notes
have
consented to the Waiver; and
WHEREAS, the Company and
Finance Corp. have directed the Trustee to
execute and deliver this Waiver
Agreement in accordance with the terms of the
Indenture.
NOW THEREFORE, for and in consideration of the premises and
mutual
covenants herein contained, the
Company, Finance Corp., the Guarantors
and the
Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of
Terms.
Unless the
context otherwise requires,
capitalized terms used
herein that are not otherwise defined
herein shall have the meaning assigned to
such terms in the Indenture.
ARTICLE II
WAIVER OF
SPECIFIED DEFAULTS
Section 2.1 Waiver.
(a) Upon the satisfaction
of the conditions set forth in
Section
2.2 of this Waiver Agreement, the
Holders, pursuant to Section
6.04 of the
Indenture, hereby waive
application of Sections 6.01(4) and 6.01(11) of the
Indenture solely to the extent applicable to any Specified Default, such Waiver
being effective







