<PAGE>
EXHIBIT 1
Execution Copy
CALPINE GENERATING COMPANY, LLC
CALGEN
FINANCE CORP.
$235,000,000 First Priority Secured Floating Rate Notes due
2009
$640,000,000 Second Priority Secured Floating Rate Notes due
2010
$680,000,000 Third Priority Secured Floating Rate Notes due
2011
$150,000,000 11 1/2% Third Priority Secured Notes due 2011
PURCHASE AGREEMENT
March 12, 2004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
1.
Introductory. Calpine Generating Company, LLC, a Delaware
limited
liability company (the "COMPANY"), and
CalGen Finance Corp. ("CALGEN FINANCE"),
a Delaware corporation and a wholly owned
subsidiary of Calpine CalGen Holdings,
Inc. ("CALGEN HOLDINGS"), propose, subject
to the terms and conditions stated
herein, to issue and sell to Morgan Stanley
& Co. Incorporated (the "INITIAL
PURCHASER") (i) an aggregate principal
amount of $235,000,000 of their First
Priority Secured Floating Rate Notes due
2009 (the "FIRST PRIORITY NOTES"), (ii)
an aggregate principal amount of
$640,000,000 of their Second Priority Secured
Floating Rate Notes due 2010 (the "SECOND
PRIORITY NOTES"), (iii) an aggregate
principal amount of $680,000,000 of their
Third Priority Secured Floating Rate
Notes due 2011 (the "THIRD PRIORITY
FLOATING RATE NOTES") and (iv) an aggregate
principal amount of $150,000,000 of their
11.5% Third Priority Secured Notes due
2011 (the "THIRD PRIORITY FIXED RATE NOTES"
and, together with the First
Priority Notes, the Second Priority Notes
and Third Priority Floating Rate
Notes, the "NOTES") as set forth below. The
First Priority Notes will be issued
pursuant to an Indenture (the "FIRST
PRIORITY INDENTURE") to be dated as of the
Closing Date (as defined in Section 3),
among the Company, CalGen Finance, the
Guarantors (as defined below) and
Wilmington Trust FSB, as trustee (the
"TRUSTEE"). The Second Priority Notes will
be issued pursuant to an Indenture
(the "SECOND PRIORITY INDENTURE") to be
dated as of the Closing Date, among the
Company, CalGen Finance, the Guarantors and
the Trustee. The Third Priority
Floating Rate Notes and the Third Priority
Fixed Rate Notes will be issued
pursuant to an Indenture (the "THIRD
PRIORITY INDENTURE") to be dated as of the
Closing Date, among the Company, CalGen
Finance, the Guarantors and the Trustee.
The First Priority Indenture, the Second
Priority Indenture and the Third
Priority Indenture are collectively
referred to herein as the "INDENTURES." The
Company's and CalGen Finance's obligations
under the Notes, including the
payment, when due and payable, of
principal, interest and premium, if any,
thereunder will be unconditionally
guaranteed (the "GUARANTEES" and, together
with the Notes, the "SECURITIES") by all of
the entities listed on Exhibit A
hereto (the "GUARANTORS") and all future
Subsidiaries of the Company (other than
CalGen Finance and the Excluded
Subsidiary). CalGen Finance will be a wholly
owned subsidiary of the Company on the
Closing Date. Capitalized terms used but
not defined herein shall have
<PAGE>
the meanings assigned to them in the
Description of Notes section of the
Offering Memorandum (as defined below). As
used herein, (a) "CALGEN COMPANIES"
shall mean the Company, CalGen Finance, the
Guarantors and all other
Subsidiaries of the Company, (b) "ISSUING
COMPANIES" shall mean the Company,
CalGen Finance and the Guarantors, (c)
"PLEDGING COMPANIES" shall mean CalGen
Holdings, the Company and the Guarantors,
(d) "TRANSACTION COMPANIES" shall mean
CalGen Holdings, the Company, CalGen
Finance, the Guarantors and all other
Subsidiaries of the Company, (e) "CALGEN
SUBSIDIARIES" shall mean all
Subsidiaries of the Company except for
CalGen Finance, and (f) "OPERATIVE
DOCUMENTS" shall mean this Agreement, the
Indentures, the Registration Rights
Agreement, the Security Documents, the Term
Loan Agreements, the Revolving Loan
Agreement, the Major Project Documents and
the documents listed on Schedule B
hereto (the "THIRD PARTY PROJECT
DOCUMENTS").
The
Company, simultaneously with the sale of the Securities, proposes
to
borrow an aggregate amount of $600,000,000
in aggregate principal amount of
super priority secured institutional term
loans due 2009 (the "FIRST PRIORITY
TERM LOANS") from lenders pursuant to a
credit and guaranty agreement (the
"FIRST PRIORITY TERM LOAN AGREEMENT") among
the Company, the guarantors named
thereunder, the lenders party thereto, and
Morgan Stanley Senior Funding, Inc.,
as the administrative agent, and
$100,000,000 in aggregate principal amount of
senior secured institutional term loans due
2010 (the "SECOND PRIORITY TERM
LOANS") from lenders pursuant to a credit
and guaranty agreement (the "SECOND
PRIORITY TERM LOAN AGREEMENT") among the
Company, the guarantors named
thereunder, the lenders party thereto, and
Morgan Stanley Senior Funding, Inc.,
as the administrative agent. The First
Priority Term Loans and the Second
Priority Term Loans are together referred
to as the "TERM LOANS." The First
Priority Term Loan Agreement and the Second
Priority Term Loan Agreement are
together referred to as the "TERM LOAN
AGREEMENTS." Morgan Stanley Senior
Funding, Inc., as administrative agent
under both Term Loan Agreements is
referred to herein as the "TERM LOAN
ADMINISTRATIVE AGENT." The Company also
proposes to secure a commitment from
lenders to provide additional funds from
time to time on a revolving basis in an
aggregate principal amount not to exceed
$200,000,000 in aggregate principal amount
of revolving loans and letters of
credit (such revolving loans and letters of
credit being referred to
collectively as the "REVOLVING CREDIT
LOANS") pursuant to an amended and
restated credit agreement (the "REVOLVING
LOAN AGREEMENT") among the Company,
the guarantors named thereunder, the
lenders party thereto, The Bank of Nova
Scotia, as the administrative agent (the
"REVOLVING LOAN ADMINISTRATIVE AGENT"),
and the other arrangers and agents
thereunder (it being understood and agreed
that neither The Bank of Nova Scotia nor
any of its affiliates is, as of the
date of this Agreement, obligated to enter
into the Revolving Loan Agreement or
to provide any funding thereunder). The
Guarantors will also guarantee the
Company's obligations under the Revolving
Credit Loans, the First Priority Term
Loans and the Second Priority Term Loans
(the "CREDIT GUARANTORS")
(collectively, the "CREDIT GUARANTEES").
The net proceeds of the Term Loans and
the sale of the Securities will be used to
repay amounts outstanding under the
Credit Agreement, dated as of October 16,
2000 (as amended, the "EXISTING SENIOR
SECURED CREDIT FACILITY"), among the
Company (formerly Calpine Construction
Finance Company II, LLC), the lenders party
thereto, Credit Suisse First Boston,
as administrative agent (the "EXISTING
CREDIT ADMINISTRATIVE AGENT"), The Bank
of Nova Scotia, as lead arranger,
co-syndication agent and bookrunner, and the
other arrangers and agents thereunder, and
to pay the fees and expenses incurred
with respect to such repayment. The
proceeds of the Revolving Credit Loans will
be used for the general corporate purposes
of the Company.
The
Pledging Companies have agreed to secure the Notes, the Term
Loans,
the Revolving Credit Loans and all future
Priority Lien Obligations and Parity
Lien Obligations by granting to Wilmington
Trust Company, as collateral agent
(the "COLLATERAL AGENT"), for the benefit
of the holders of the Notes, the Term
Loans, the Revolving Credit Loans, the Term
Loan Administrative Agent, the
Revolving Loan Administrative Agent and the
holders of any other future Priority
Lien Obligations or Parity Lien Obligations
(collectively, the "SECURED
PARTIES") a lien on all the assets (other
than, in some cases, certain excluded
assets identified in the Term Loan
Agreements and the Revolving Loan) of the
2
<PAGE>
Company and the Guarantors and a pledge of
the equity interests in the Company
and CalGen Expansion Company, LLC
("Expansion Co") (collectively, the
"COLLATERAL"), in each case as evidenced by
a Security Agreement, to be dated as
of the Closing Date, among the Company, the
CalGen Companies and the Collateral
Agent, a Membership Interest Pledge
Agreement, to be dated as of the Closing
Date, among the Company, Expansion Co and
the Collateral Agent (the "EXPANSION
CO MEMBERSHIP INTEREST PLEDGE AGREEMENT"),
a Membership Interest Pledge
Agreement, to be dated as of the Closing
Date, between CalGen Holdings and the
Collateral Agent (the "MEMBERSHIP INTEREST
PLEDGE AGREEMENT"), the Collateral
Account Control Agreement, to be dated as
of the Closing Date, among the
Company, the Collateral Agent and an
institution reasonably acceptable to the
Initial Purchaser, as depository agent (the
"CONTROL AGREEMENT"), the mortgages
or deeds of trust listed on Schedule C
hereto (the "MORTGAGES") and a Collateral
Trust Agreement, to be dated as of the
Closing Date, among the Pledging
Companies, the Trustee, the Term Loan
Administrative Agent, the Revolving Loan
Administrative Agent and the Collateral
Agent (the "COLLATERAL TRUST AGREEMENT"
and, together with the Security Agreement,
the Expansion Co Membership Interest
Pledge Agreement, the Membership Interest
Pledge Agreement, the Control
Agreement and the Mortgages, the "SECURITY
DOCUMENTS"). Pursuant to the
Collateral Trust Agreement, the security
interest in the Collateral securing the
Parity Lien Obligations will rank
immediately junior in priority to the security
interest in the Collateral securing any
Priority Lien Obligations. The Priority
Lien Obligations and the Parity Lien
Obligations are collectively referred to
herein as the "SECURED OBLIGATIONS."
The
Company, CalGen Finance and each of the Guarantors agree with
the
Initial Purchaser as follows:
2.
Representations and Warranties of the Issuing Companies. The
Issuing
Companies represent and warrant to, and
agree with, the Initial Purchaser that:
(a) The offering
memorandum to be dated the date on which the
Initial Purchaser receive the Audited
Financials (as defined below) (such
offering memorandum, as amended or
supplemented, the "OFFERING MEMORANDUM")
relating to the Securities to be offered by
the Initial Purchaser has been
prepared by the Company and CalGen Finance
and has been or will be delivered to
the Initial Purchaser at such place or
places as it has directed or may direct,
at or prior to such time as the Initial
Purchaser have requested or may request.
Such Offering Memorandum, together with any
other document approved by the
Company for use in connection with the
contemplated sale or resale of the
Securities, are hereinafter collectively
referred to as the "OFFERING
DOCUMENTS." The Offering Documents did not
and will not, as of their respective
dates, include any untrue statement of a
material fact or omit to state any
material fact necessary in order to make
the statements therein, in the light of
the circumstances under which they were
made, not misleading. The preceding
sentence does not apply to statements in or
omissions from the Offering
Documents based upon written information
furnished to the Company by the Initial
Purchaser specifically for use therein.
(b) The Company
has been duly formed and is an existing limited
liability company in good standing under
the laws of the State of Delaware, with
power and authority under such laws to own
and lease its properties and conduct
its,business as described in the Offering
Documents; and the Company is duly
qualified to do business as a foreign
limited liability company, and is in good
standing in, all other jurisdictions in
which its ownership or leasing of
property or the conduct of its business
requires such qualification.
(c) CalGen
Finance has been duly incorporated and is an existing
corporation in good standing under the laws
of the State of Delaware, with
corporate power and authority to own its
properties and conduct its business as
described in the Offering Documents; and
CalGen Finance is duly qualified to do
business as a foreign corporation, and is
in good standing in, all other
3
<PAGE>
jurisdictions in which its ownership or
lease of property or the conduct of its
business requires such qualification; all
of the issued and outstanding capital
stock of CalGen Finance has been duly
authorized and validly issued and is fully
paid and nonassessable as of the date
hereof and will be as of the Closing Date;
the capital stock of CalGen Finance is
owned by CalGen Holdings free from liens,
encumbrances and defects; and neither the
Company nor CalGen Finance is a
general partner in any partnership.
(d) Each
Subsidiary of the Company (x) other than those
Subsidiaries specified in clause (y) of
this subparagraph has been duly
incorporated and is an existing corporation
in good standing under the laws of
the jurisdiction of its incorporation, with
the corporate power and authority to
own or lease its properties and conduct its
business as described in the
Offering Documents; or (y) that is not a
corporation is a general or limited
partnership or a limited liability company,
has been duly formed and is validly
existing as a general or limited
partnership or limited liability company, as
the case may be, in good standing under the
laws of the jurisdiction of its
formation, and has full partnership or
limited liability company power and
authority, as the case may be, to own or
lease its properties and conduct its
business as described in the Offering
Documents; each Subsidiary of the Company
is duly qualified to do business as a
foreign corporation, general or limited
partnership or limited liability company,
as the case may be, and is in good
standing in, all other jurisdictions in
which its ownership or leasing of
property or the conduct of its business
requires such qualification; all of the
issued and outstanding capital stock of or
other equity interest in each
Subsidiary of the Company has been duly
authorized and validly issued and is
fully paid and nonassessable; the capital
stock of or other equity interest in
each Subsidiary owned by the Company,
directly or through Subsidiaries, is owned
free from liens, encumbrances and defects
except for those to be terminated at
the Closing Date with respect to the
Existing Senior Secured Credit Facility;
the capital structure of CalGen Holdings
and the CalGen Companies is accurately
set forth on Schedule D hereto.
(e) Each of the
Indentures has been duly authorized and conforms
to the description thereof contained in the
Offering Memorandum; the Securities
and the Exchange Securities (as defined
below) have been duly authorized, and
when the Securities are delivered and paid
for pursuant to this Agreement on the
Closing Date, each of the Indentures will
have been duly executed and delivered,
such Securities will have been duly
executed, authenticated, issued and
delivered and will conform to the
description thereof contained in the Offering
Memorandum and the Indentures and such
Securities will constitute valid and
legally binding obligations of the Issuing
Companies, as applicable, enforceable
in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and
similar laws of general applicability
relating to or affecting creditors' rights
and to general equity principles.
(f) The
registration rights agreement to be dated as of the
Closing Date among the Issuing Companies on
the one hand and the Initial
Purchaser on the other (the "REGISTRATION
RIGHTS AGREEMENT") has been duly
authorized by the Issuing Companies, and
assuming due authorization, execution
and delivery by the Initial Purchaser, upon
its execution and delivery by the
Issuing Companies will constitute a valid
and legally binding obligation of the
Issuing Companies, enforceable against the
Issuing Companies in accordance with
its terms, subject to bankruptcy,
insolvency, fraudulent transfer,
reorganization, moratorium, and similar
laws of general applicability relating
to or affecting creditors' rights and to
general equity principles and except
that the enforceability of the rights to
indemnity and contribution contained
therein may be limited by federal or state
securities laws or by principles of
public policy. The Registration Rights
Agreement, when executed and delivered,
will conform in all material respects to
the description thereof contained in
the Offering Memorandum. Pursuant to the
Registration Rights Agreement, the
Issuing Companies will agree to either (i)
file with the Securities and Exchange
Commission (the "COMMISSION"), under the
circumstances set forth therein, (A) a
registration statement under the Securities
Act with respect to an offer to
exchange the Securities for a new series of
debt securities of such companies
(the "EXCHANGE SECURITIES") having
identical terms as the
4
<PAGE>
Securities except that the Exchange
Securities will be registered pursuant to an
effective Registration Statement under the
Securities Act (the "EXCHANGE
OFFER"), and (B) to the extent required by
the Registration Rights Agreement, a
shelf registration statement pursuant to
Rule 415 under the Securities Act
relating to the resale by certain holders
of the Securities, and to use all
commercially reasonable efforts to cause
such registration statements to be
declared effective, or (ii) pay Special
Interest to the holders of Transfer
Restricted Subsidiaries in accordance with
the terms thereof.
(g) Each of the
Security Documents to which any Pledging Company
is a party has been duly authorized by such
Pledging Company and, when executed
and delivered, will conform in all material
respects to the description thereof
contained in the Offering Memorandum. Each
of the Security Documents, when
validly executed and delivered by the
applicable Pledging Company, will
constitute a valid and legally binding
obligation of such Pledging Company and
will be enforceable against such Pledging
Company in accordance with its terms,
subject to bankruptcy, insolvency,
fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting
creditors' rights and to general equity
principles.
(h) Each of the
Term Loan Agreements and the Revolving Loan
Agreement has been duly authorized by the
Company and, when executed and
delivered, will conform in all material
respects to the description thereof
contained in the Offering Memorandum. Each
of the Term Loan Agreements and the
Revolving Loan Agreement, when validly
executed and delivered by the Company,
will constitute a valid and legally binding
obligation of the Company and will
be enforceable against the Company in
accordance with its terms, subject to
bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and
similar laws of general applicability
relating to or affecting creditors' rights
and to general equity principles.
(i) Each Credit
Guarantee has been duly authorized by the
applicable Credit Guarantor and, when
executed and delivered, will conform in
all material respects to the description
thereof contained in the Offering
Memorandum. Each Credit Guarantee, when
validly executed and delivered by the
applicable Credit Guarantor, will
constitute a valid and legally binding
obligation of such Credit Guarantor and
will be enforceable against such Credit
Guarantor in accordance with its terms,
subject to bankruptcy, insolvency,
fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting
creditors' rights and to general equity
principles.
(j) Each of the
CalGen Companies has authorized each Major Project
Document and each Third Party Project
Document to which it is a party and, when
executed and delivered (to the extent not
executed and delivered as of the date
hereof), each such Major Project Document
and Third Party Project Document will
conform in all material respects to the
description thereof contained in the
Offering Memorandum. Each Major Project
Document and Third Party Project
Document, when validly executed and
delivered by the applicable CalGen Company,
will constitute a valid and legally binding
obligation of such CalGen Company,
as applicable, and will be enforceable
against such CalGen Company in accordance
with its terms, subject to bankruptcy,
insolvency, fraudulent transfer,
reorganization, moratorium and similar laws
of general applicability relating to
or affecting creditors' rights and to
general equity principles.
(k) When
executed and delivered to the Collateral Agent at the
Closing Date, (i) each Security Document
will, to the extent contemplated
thereby, grant and create for the benefit
of the Parity Secured Parties as
security for all Parity Lien Obligations, a
valid security interest in the
personal property Collateral defined in
each of such instruments to the extent
contemplated thereby, and (ii) each
Mortgage will grant and create, in favor of
the Collateral Agent for the benefit of the
Parity Secured Parties as security
for all of the Parity Lien Obligations, a
valid mortgage lien and/or security
interest in the Collateral defined in each
of such instruments to the extent
contemplated thereby. At the Closing
5
<PAGE>
Date, (i) all pledged Collateral will be
represented by certificated securities
and (ii) all such certificated securities
and all promissory notes and other
instruments then evidencing or representing
any Collateral will be delivered to
the Collateral Agent in pledge for the
benefit of the Secured Parties as
security for all of the Secured
Obligations, duly endorsed by an effective
endorsement.
(l) At the
Closing Date, the representations and warranties
contained in the Security Documents will be
true and correct in all respects.
(m) Except as
disclosed in the Offering Documents, there are no
contracts, agreements or understandings
between any of the CalGen Companies and
any person that would give rise to a valid
claim against any of the CalGen
Companies or the Initial Purchaser for a
brokerage commission, finder's fee or
other like payment in connection with this
offering.
(n) Except as
provided for in this Agreement, there are no
contracts, agreements or understandings
between any of the Issuing Companies and
any person granting such person the right
to require any of the Issuing
Companies to file a registration statement
under the Securities Act with respect
to any securities of any of the Issuing
Companies owned or to be owned by such
person or to require any of the Issuing
Companies to include such securities
with any other securities being registered
pursuant to any other registration
statement filed by any of the Issuing
Companies under the Securities Act.
(o) No consent,
approval, authorization, or order of, or filing
with, any governmental agency or body or
any court is required for the
consummation of the transactions
contemplated by the Operative Documents or
otherwise in connection with the issuance
and sale of the Securities by the
Issuing Companies or the grant and
perfection of the security interests in the
Collateral pursuant to the Security
Documents, except (i) such consents,
approvals, authorizations and orders as
have already been obtained, (ii) filings
required to perfect the Collateral Agent's
security interests granted pursuant
to the Security Documents, (iii) such
consents, approvals, authorizations and
orders as may be required under state
securities or blue sky laws and (iv) such
other consents approvals, authorizations
and orders as would not, in the
aggregate, have a material adverse effect
on the condition (financial or other),
business, properties or results of
operations of the CalGen Companies taken as a
whole or materially affect the aggregate
value of the Collateral (any such
event, a "MATERIAL ADVERSE EFFECT").
(p) The
execution, delivery and performance of the Operative
Documents by each Transaction Company party
thereto, as applicable, the issuance
and sale of the Securities by the Issuing
Companies, the grant and perfection of
the security interests in the Collateral
pursuant to the Security Documents,
compliance with the terms and provisions of
each of the foregoing by the
Transaction Companies, as applicable, and
the consummation by such Transaction
Companies of the transactions contemplated
herein and therein will not result in
a breach or violation of any of the terms
and provisions of, or conflict with or
constitute a default under, or result in
the imposition or creation of (or the
obligation to create or impose) a Lien
(other than in favor of the Secured
Parties) under, any statute, any rule,
regulation or order of any governmental
agency or body or any court, domestic or
foreign, having jurisdiction over any
of the Transaction Companies or any of
their properties, or any agreement or
instrument to which any of the Transaction
Companies is a party or by which any
of the Transaction Companies is bound or to
which any of the properties of any
of the Transaction Companies is subject, or
the organizational documents of any
of the Transaction Companies, except in
each case as would not have a Material
Adverse Effect, and the Issuing Companies
have full power and authority to
authorize, issue and sell the Securities as
contemplated by this Agreement.
(q) This
Agreement has been duly authorized, executed and
delivered by the Issuing Companies.
6
<PAGE>
(r) Except as
disclosed in the Offering Documents and/or the
Closing Date Mortgage Policies (as defined
below), the Company and each of the
Guarantors has good and marketable title to
all real properties and good title
to all other properties and assets owned by
it, in each case except for
Permitted Liens, free from liens,
encumbrances and defects that would materially
affect the value thereof or materially
interfere with the use made or to be made
thereof by it; and, except for Permitted
Liens or as disclosed in the Offering
Documents and/or the Closing Date Mortgage
Policies, the Company and each of the
Guarantors holds any leased real or
personal property under valid and
enforceable leases with no exceptions that
would materially interfere with the
use made or to be made thereof by it No
Financing Statements (as defined below)
in respect of any property or assets of any
of the Pledging Companies will be on
file in favor of any person other than
those in respect of Permitted Liens and
those to be terminated at the Closing Date
with respect to the Existing Senior
Secured Credit Facility, and, solely in the
case of CalGen Holdings, those in
respect of property or assets not
constituting Collateral.
(s) Each of the
CalGen Companies possesses adequate certificates,
authorities or permits issued by
appropriate governmental agencies or bodies
necessary to conduct the business now
operated by it and has not received any
notice of proceedings relating to the
revocation or modification of any such
certificate, authority or permit that, if
determined adversely to such CalGen
Company, would individually or in the
aggregate have a Material Adverse Effect.
(t) No labor
dispute with the employees of any of the CalGen
Companies exists or, to the knowledge of
the Company, is imminent that might
have a Material Adverse Effect.
(u) Each of the
CalGen Companies owns, possesses or can acquire on
reasonable terms, adequate trademarks,
trade names and other rights to
inventions, know-how, patents, copyrights,
confidential information and other
intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by it,
or presently employed by it, and has
not received any notice of infringement of
or conflict with asserted rights of
others with respect to any intellectual
property rights that, if determined
adversely to such CalGen Company, would
individually or in the aggregate have a
Material Adverse Effect.
(v) Except as
disclosed in the Offering Memorandum, none of the
CalGen Companies is in violation of any
statute, rule, regulation or decision or
order of any governmental agency or body or
any court domestic or foreign,
relating to the use, disposal or release of
hazardous or toxic substances or
relating to the protection or restoration
of the environment or human exposure
to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or
operates any real property contaminated
with any substance that is subject to
any Environmental Laws, is liable for any
off-site disposal or contamination
pursuant to any Environmental Laws, or is
subject to any claim relating to any
Environmental Laws, which violation,
contamination, liability or claim would
individually or in the aggregate have a
Material Adverse Effect; and the Company
is not aware of any pending investigation
which might lead to such a claim.
(w) Except as
disclosed in the Offering Memorandum, there are no
pending actions, suits or proceedings
against any of the Transaction Companies
or any of their respective properties that,
if determined adversely to such
Transaction Companies, would individually
or in the aggregate have a Material
Adverse Effect, or would materially and
adversely affect the ability of such
Transaction Companies to perform its or
their obligations under, or contemplated
by, the Operative Documents, in each case
to which such Transaction Company is a
party, or which are otherwise material in
the context of the sale of the
Securities; and to the knowledge of the
Company, no such actions, suits or
proceedings are threatened or
contemplated.
7
<PAGE>
(x) The
financial information included in the Offering Memorandum
presents fairly the financial position of
the Company and its Subsidiaries on a
combined or consolidated basis, as the case
may be, as of the dates shown and
their results of operations and cash flows
for the periods shown, and, except as
otherwise disclosed in the Offering
Documents, such financial information has
been prepared in conformity with generally
accepted accounting principles in the
United States applied on a consistent
basis.
(y) The
statistical and market-related data (other than
market-related data and statistical data
provided by the Company) included in
the Offering Memorandum is based on or
derived from sources which the Company
believes to be reliable and accurate, it
being understood, however, that the
Company has conducted no independent
investigation of the accuracy thereof.
(z) Except as
disclosed in the Offering Memorandum, since the date
of the audited financial statements
delivered pursuant to Section 6(q) of this
Agreement there has been no material
adverse change, nor any development or
event involving a prospective material
adverse change, in the condition
(financial or other), business, properties
or results of operations of the
Calgen Companies taken as a whole, and,
except as disclosed in or contemplated
by the Offering Memorandum, there has been
no change in the equity interests in
or long-term debt of any of the Gal Gen
Companies and no dividend or
distribution of any kind declared, paid or
made by the Company on any class of
its equity interests.
(aa) None of the
CalGen Companies is an open-end investment
company, unit investment trust or
face-amount certificate company that is or is
required to be registered under Section 8
of the United States Investment
Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"); none of the
CalGen Companies is or, after giving effect
to the offering, the sale of the
Securities and the application of the
proceeds thereof as described in the
Offering Documents, and the consummation of
the transactions contemplated by the
Operative Documents will be an "investment
company" as defined in the Investment
Company Act of 1940.
(bb) When the
Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of
the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act)
as any other securities that are
listed on any national securities exchange
registered under Section 6 of the
Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
(cc) The offer and
sale of the Securities by the Company, CalGen
Finance and the Guarantors to the Initial
Purchaser in the manner contemplated
by this Agreement will be exempt from the
registration requirements of the
Securities Act by reason of Section 4(2)
thereof and Rule 144A thereunder ("RULE
144A") and it is not necessary to qualify
an indenture in respect of the
Securities under the Trust Indenture
Act.
(dd) Neither the
Company nor any of its Affiliates, nor any person
acting on behalf of any of the foregoing
(i) has, within the six-month period
prior to the date hereof (except for the
Company's proposed offering of up to
$1.050 million of senior secured notes
pursuant to a preliminary offering
memorandum, dated February 9, 2004, it
being understood that such preliminary
offering memorandum was distributed in
connection with this offering), offered
or sold in the United States or to any U.S.
person (as such terms are defined in
Regulation S under the Securities Act) the
Securities or any security of the
same class or series as the Securities or
(ii) has offered or will offer or sell
the Securities in the United States by
means of any form of general solicitation
or general advertising within the meaning
of Rule 502(c) under the Securities
Act. None of the Issuing Companies has
entered or will enter into any
contractual arrangement with respect to the
distribution of the Securities
except for this Agreement. The Issuing
Companies will take reasonable
precautions designed to insure that any
offer or sale, direct or
8
<PAGE>
indirect, in the United States or to any
U.S. person of any Securities or any
substantially similar security issued by
any of the Issuing Companies within six
months subsequent to the date on which the
distribution of the Securities has
been completed (as notified to the Company
by the Initial Purchaser), is made
under restrictions and other circumstances
reasonably designed not to affect the
status of the offer and sale of the
Securities in the United States and to U.S.
persons contemplated by this Agreement as
transactions exempt from the
registration provisions of the Securities
Act.
(ee) None of the
CalGen Companies or any "subsidiary company," as
that term is defined in the Public Utility
Holding Company Act of 1935
("PUHCA"), of the CalGen Companies is, or
after giving effect to the issuance
and sale of the Securities, will be,
subject to regulation (i) as a "holding
company," a "subsidiary company" of a
holding company or a "public-utility
company," as those terms are defined in
PUHCA; (ii) under the Federal Power Act,
as amended ("FPA"), other than (A) as an
"exempt wholesale generator" ("EWG"),
as that term is defined in PUHCA, that is
subject to regulation as a "Public
utility" under the FPA, other than as
described in the Offering Documents, or
(B) as a "qualifying facility" ("QF") under
the Public Utility Regulatory
Policies Act of 1978, as amended ("PURPA"),
as contemplated by 18 C.F.R. Section
292.601(c); or (iii) under any state law or
regulation with respect to rates or
the financial or organizational regulation
of electric utilities, other than,
with respect to CalGen Companies that are
QFs, as contemplated by 18 C.F.R.
Section 292.602(c).
(ff) Other than as
described in the Offering Documents, each of the
power generation projects in which the
CalGen Companies listed on Schedule C1
have an interest meets the requirements
under PURPA and the regulations of the
Federal Energy Regulatory Commission
("FERC") promulgated thereunder, as amended
from time to time, necessary to be a
"qualifying cogeneration facility" and/or a
"qualifying small power generation
production facility."
(gg) Each of the
CalGen Companies listed on Schedule C2 hereto (i)
own and/or operate Eligible Facilities
within the meaning of Section 32 of
PUHCA, and each such CalGen Company has
received a determination from the FERC,
not subject to any pending challenge or
appeal, that it is an EWG, within the
meaning of Section 32 of PUHCA; and (ii)
other than as described in the Offering
Documents, has validly issued orders from
the FERC, not subject to any pending
challenge, investigation, or proceeding
(other than the pending petition for
rehearing of the FERC's Order issued in its
generic proceeding initiated in
Docket No. EL01-118-000), (A) authorizing
such CalGen Company to engage in
wholesale sales of electricity, ancillary
services and, to the extent permitted
under its market-based rate tariff, other
services at market-based rates, and
(B) granting such waivers and blanket
authorizations as are customarily granted
to entities with market-based rate
authority; with respect to each such CalGen
Company, the FERC has not imposed any rate
caps or mitigation measures other
than rate caps and mitigation measures
generally applicable to similarly
situated marketers or generators selling
electricity, ancillary services or
other services at wholesale in the
geographic market where such CalGen Company
conducts its business.
(hh) Each of the
CalGen Companies that is participating in the
Texas wholesale electric market has
registered with the Texas Public Utilities
Commission ("TPUC"), and the TPUC has not
imposed on any such CalGen Company any
specific rate cap or mitigation
measures.
(ii) Other than as
described in the Offering Documents, there are
no pending complaints filed with the FERC
seeking abrogation or modification of
a contract for the sale of power by the
CalGen Companies.
(jj) None of the
transactions contemplated by this Agreement
(including, without limitation, the use of
the proceeds from the sale of the
Securities) will violate or result in a
9
<PAGE>
violation of Section 7 of the Exchange Act,
or any regulation promulgated
thereunder, including, without limitation,
Regulations T, U, and X of the Board
of Governors of the Federal Reserve
System.
(kk) Prior to the date
hereof, neither the Company nor any of its
Affiliates has taken any action which is
designed to or which has constituted or
which might have been expected to cause or
result in stabilization or
manipulation of the price of any security
of the Issuing Companies in connection
with the offering of the Securities.
(ii) None of the
Issuing Companies is in violation of its
organizational documents or in default in
the performance or observance of any
material obligation, covenant or condition
contained in any indenture, mortgage,
deed of trust, loan agreement, lease or
other material agreement or instrument
to which it is a party or by which it or
any of its properties may be bound.
(mm) The statements
set forth in the Offering Memorandum under the
captions "Business - Power Generation","
Business - Purchase of Gas and Sale of
Power" "Business - Operation of Our
Facilities", "Business - Project
Construction", "Business - General
Administrative Matters" "Description of New
Term Loans," "Description of New Senior
Secured Revolving Credit Facility" and
"Description of Notes", insofar as they
purport to describe the provisions of
the documents referred to therein, are
accurate, complete and fair in all
material respects.
(nn) The description
of the Collateral set forth in the Offering
Memorandum under the caption "Description
of Notes--Security" is accurate and
complete in all material respects.
(oo)
PricewaterhouseCoopers LLP, who will have certified certain
financial statements of the Company and its
Subsidiaries on or prior to the
Closing Date, is an independent public
accountant as required by the Securities
Act and the rules and regulations of the
Commission thereunder.
(pp) The present fair
saleable value of the assets of each of the
CalGen Companies exceeds the amount
required to pay the probable liability on
its existing debts, respectively (whether
matured or unmatured, liquidated or
unliquidated, absolute, fixed or
contingent), as they become absolute and
matured, and as a result of the
consummation of the transactions contemplated
herein and in the Offering Memorandum, will
continue to exceed such amount.
(qq)
Each of the CalGen
Companies does not, and, as a result of the
consummation of the transactions
contemplated herein and in the Offering
Memorandum, will not, have unreasonably
small capital for it to carry on its
business as proposed to be conducted.
(rr) None of the
CalGen Companies is incurring obligations or
making transfers under any evidence of
indebtedness with the intent to hinder,
delay or defraud any entity to which it is
or will become indebted.
3.
Purchase,
Sale and Delivery of Securities. Subject to the terms and
conditions herein set forth, the Issuing
Companies agree to issue and sell to
the Initial Purchaser, and the Initial
Purchaser agrees to purchase from the
CalGen Companies, at a purchase price of
$1,660,800,000.00 for all of the
Securities. Upon purchase by the Initial
Purchaser of the Securities, the
Initial Purchaser proposes to offer the
Securities for sale upon the terms and
conditions set forth in the Offering
Documents.
The
Issuing Companies will deliver against payment of the purchase
price
the Securities in the form of one or more
global Securities in definitive form
(the "GLOBAL SECURITIES") deposited by or
on behalf of the Issuing Companies
with The Depository Trust Company ("DTC")
and registered in the
10
<PAGE>
name of Cede & Co., as nominee for DTC.
Interests in any Global Securities will
be held only in book-entry form through
DTC, except in the limited circumstances
that are described in the Offering
Documents. Payment for the Securities shall
be made by the Initial Purchaser in Federal
(same day) funds by official bank
check or checks or wire transfer to an
account at a bank acceptable to the
Initial Purchaser drawn to the order of
Calpine Generating Company, LLC at the
office of Covington & Burling, 1330
Avenue of Americas, New York, NY 10019, at
9:00 A.M. (New York time), on March
23,2004, or at such other time thereafter as
the Initial Purchaser and the Company may
agree upon in writing, such time being
herein referred to as the "CLOSING DATE,"
against delivery to the Trustee as
custodian for DTC of the Global Securities
representing all of the Securities.
The Global Securities will be made
available for checking at the above office of
Covington & Burling (or such other
location as the Initial Purchaser may direct)
at least 24 hours prior to the Closing
Date.
4.
Representations by Initial Purchaser; Resale by Initial
Purchaser.
Upon purchase from the Issuing Companies of
the Securities, the Initial
Purchaser proposes to offer the Securities
for sale upon the terms and
conditions set forth in this Agreement and
the Offering Memorandum and the
Initial Purchaser hereby represents and
warrants to and agrees with the Issuing
Companies that:
(a) It will
offer and sell the Securities only (i) to persons who
it reasonably believes are "qualified
institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities
Act in transactions meeting the
requirements of Rule 144A and (ii) through
its selling agents, outside the
United States, to non-U.S. persons in
reliance on Regulation S under the
Securities Act;
(b) It is an
"accredited investor" within the meaning of Rule 501
under the Securities Act;
(c) It
acknowledges that the Securities have not been registered
under the Securities Act and may not be
sold within the United States except
pursuant to an exemption from, or in a
transaction not subject to, the
registration requirements of the Securities
Act; and
(d) It will not
offer or sell the Securities by any form of
general solicitation or general
advertising, including but not limited to the
methods described in Rule 502(c) under the
Securities Act.
5.
Certain
Agreements of the Issuing Companies. The Issuing Companies
agree with the Initial Purchaser that:
(a) The Company
will advise the Initial Purchaser promptly of any
proposal to amend or supplement the
Offering Documents and will not effect such
amendment or supplementation without the
Initial Purchaser's consent, which
consent shall not be unreasonably withheld.
If, at any time prior to the
completion of the resale of the Securities
by the Initial Purchaser, any event
occurs as a result of which the Offering
Memorandum as then amended or
supplemented would include an untrue
statement of a material fact or omit to
state any material fact necessary in order
to make the statements therein, in
light of the circumstances under which they
were made, not misleading, the
Company promptly will notify the Initial
Purchaser of such event and promptly
will prepare, at its own expense, an
amendment or supplement which will correct
such statement or omission or effect such
compliance. Neither the Initial
Purchaser's consent to, nor the Initial
Purchaser's delivery to offerees or
investors of, any such amendment or
supplement shall constitute a waiver of any
of the conditions set forth in Section
6.
(b) The Company
will furnish to the Initial Purchaser copies of
the Offering Documents and all amendments
and supplements to such documents, in
each case as soon as available
11
<PAGE>
and in such quantities as the Initial
Purchaser requests, and the Company will
furnish to the Initial Purchaser on the
date on which the Initial Purchaser also
receives the Audited Financials from the
independent accountants, three copies
of the Offering Memorandum signed by a duly
authorized officer of the Company,
one of which will include the independent
accountants' reports therein manually
signed by such independent accountants. At
any time any of the Issuing Companies
are not subject to Section 13 or 15(d) of
the Exchange Act, the Issuing
Companies will promptly furnish or cause to
be furnished to the Initial
Purchaser and, upon request of Holders and
prospective purchasers of the
Securities, to such Holders and purchasers,
copies of the information required
to be delivered to Holders and prospective
purchasers of the Securities pursuant
to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto)
in order to permit compliance with Rule
144A in connection with resales by such
Holders of the Securities. The Company will
pay the expenses of printing and
distributing to the Initial Purchaser all
such documents.
(c) The Issuing
Companies will arrange for the qualification of
the Securities for sale and the
determination of their eligibility for
investment under the laws of such
jurisdictions as the Initial Purchaser
designate and will continue such
qualifications in effect so long as required
for the resale of the Securities by the
Initial Purchaser, provided that none of
the Issuing Companies will be required to
qualify as a foreign organization or
to file a general consent to service of
process in any such state.
(d) During a
period of two years from the date of the Offering
Memorandum, the Company will furnish to the
Initial Purchaser, the periodic
reports, financial statements and other
financial information required to be
provided to the trustee pursuant to the
Indentures or such other information
concerning any of the CalGen Companies
reasonably requested by the Initial
Purchaser, unless such periodic reports,
financial statements, financial
information and other information are
otherwise available on the Commission's
Electronic Data Gathering, Analysis and
Retrieval System or similar system.
(e) During the
period of two years after the Closing Date, the
Issuing Companies will, upon request,
furnish to the Initial Purchaser and any
holder of Securities a copy of the
restrictions on transfer applicable to the
Securities.
(f) During the
period of two years after the Closing Date, none of
the Issuing Companies will, or will permit
any of their respective Affiliates
(as defined in Rule 144 under the
Securities Act) to, resell any of the
Securities that have been reacquired by
it.
(g) During the
period of two years after the Closing Date, none of
the Issuing Companies will be or become an
open-end investment company, unit
investment trust or face amount certificate
company that is or is required to be
registered under Section 8 of the
Investment Company Act of 1940.
(h) The Company
will pay all reasonable expenses incident to the
performance of its, CalGen Finance's and
each of the Guarantors' obligations
under this Agreement, including (i) the
fees and expenses of the Trustee and any
agent of the Trustee and the fees and
disbursements of counsel for the Trustee
in connection with the Indentures and the
Securities; (ii) all expenses in
connection with the execution, issue,
authentication, packaging and initial
delivery of the Securities, the preparation
and printing of this Agreement, the
Registration Rights Agreement, the
Securities, the Exchange Securities, the
Offering Documents and amendments and
supplements thereto, and any other
document relating to the issuance, offer,
sale and delivery of the Securities;
(iii) the cost of qualifying the Securities
for trading in The Portal(SM)"
Market ("PORTAL") of the NASDAQ Stock
Market, Inc. and any expenses incidental
thereto; (iv) any expenses (including fees
and disbursements of counsel)
incurred in connection with qualification
of the Securities for sale under the
laws of such
12
<PAGE>
jurisdictions in the United States and
Canada as the Initial Purchaser
designates and the printing of memoranda
relating thereto; (v) any fees charged
by investment rating agencies for the
rating of the Securities; (vi) expenses
incurred in distributing Offering Documents
(including any amendments and
supplements thereto) to the Initial
Purchaser, (vii) expenses associated with
the creation and perfection of security
interests and associated documents,
including, without limitation, filing fees
and the fees and disbursements
incurred in connection with the Security
Documents and all Financing Statements
(as defined below); (viii) fifty percent
(50%) of the reasonable fees and
expenses of Latham & Watkins LLP,
counsel to the Initial Purchaser, incurred in
connection with the issuance and sale of
the Securities and borrowings under the
Company's Term Loan Agreements; (ix) the
fees and expenses of the Collateral
Agent and any agent of the Collateral Agent
and the fees and expenses of counsel
for the Collateral Agent in connection with
the Security Documents and the
Collateral; and (x) all other costs and
expenses incident to the performance of
its obligations hereunder which are not
otherwise specifically provided for in
this Section 5. The Company will reimburse
the Initial Purchaser for all travel
expenses of the Initial Purchaser and the
Company's officers and employees and
any other expenses of the Initial Purchaser
and the Company in connection with
attending or hosting meetings with
prospective purchasers of the Securities (it
being understood and agreed by the Company
and the Initial Purchaser that the
total amount of such travel and other
expenses of the Initial Purchaser is
zero).
(i) In
connection with the offering, until the Initial Purchaser
shall have notified the Company of the
completion of the resale of the
Securities, neither the Company nor any of
its Affiliates has or will, either
alone or with one or more other persons,
bid for or purchase for any account in
which it or any of its Affiliates has a
beneficial interest, or attempt to
induce any person to purchase, any
Securities; and neither it nor any of its
Affiliates will make bids or purchases for
the purpose of creating actual, or
apparent, active trading in, or of raising
the price of, the Securities.
(j) The Issuing
Companies will use their best efforts to cause the
Securities to be eligible for the PORTAL
trading system.
(k) The Company
will use the net proceeds received by it from the
sale of the Securities pursuant to this
Agreement in the manner specified in the
Offering Memorandum under the caption "use
of proceeds."
(l) During the
period from the date hereof to 90 days after the
Closing Date, none of the Issuing Companies
will sell or cause to be offered,
sold or contracted to sell, or otherwise
dispose of, any debt securities
substantially similar to the Securities
without the prior written consent of the
Initial Purchaser.
6.
Conditions
of the Obligations of the Initial Purchaser. The
obligation of the Initial Purchaser to
purchase and pay for the Securities on
the Closing Date will be subject to the
accuracy of the representations and
warranties on the part of each of the
Issuing Companies set forth herein on the
date hereof and on the Closing Date, to the
accuracy of the statements of the
officers of the Issuing Companies made
pursuant to the provisions hereof, to the
performance by the Issuing Companies of
their respective obligations hereunder
and to the following additional conditions
precedent (it being understood that
all references to the "Subsidiaries" of the
Company in this Section 6 shall
include CalGen Finance):
(a)
CalGen Finance
shall have become a direct wholly owned
Subsidiary of the Company, and the capital
stock of CalGen Finance shall be
owned by the Company free from liens,
encumbrances and defects.
13
<PAGE>
(b) The Initial
Purchaser shall have received a "comfort" letter
dated, the Closing Date, in form and
substance reasonably satisfactory to the
Initial Purchaser, from
PricewaterhouseCoopers LLP.
(c) The Chief
Financial Officer of the Company shall have
furnished a certificate, dated the Closing
Date, in form and substance
satisfactory to the Initial Purchaser,
stating to the effect that:
(i) The Company
does not intend to or believe that it has
incurred or will incur debts that will be
beyond its ability to pay as they
mature;
(ii) No CalGen
Subsidiary intends to or believes that it has
incurred or will incur debts that will be
beyond its ability to pay as they
mature;
(iii) The present fair saleable value of the assets of the
Company exceeds the amount that will be
required to pay the probable liability
on its existing debts (whether matured or
unmatured, liquidated or unliquidated,
absolute, fixed or contingent) as they
become absolute and matured, and as a
result of the transactions contemplated
herein, will continue to exceed such
amount;
(iv) The present fair
saleable value of the assets of each
CalGen Subsidiary exceeds the amount that
will be required to pay the probable
liability on such Subsidiary's existing
debts (whether matured or unmatured,
liquidated or unliquidated, absolute, fixed
or contingent) as they become
absolute and matured, and as a result of
the transactions contemplated herein,
will continue to exceed such amount;
(v) The Company
does not, and as a result of the
consummation of the transactions
contemplated in this Agreement, will not have
unreasonably small capital for it to carry
on its businesses as proposed to be
conducted;
(vi) No CalGen
Subsidiary has, nor as a result of the
consummation of the transactions
contemplated in this Agreement, will have,
unreasonably small capital for it to carry
on its business as proposed to be
conducted;
(vii) The Company is not incurring obligations or making
transfers under any evidence of
indebtedness with the intent to hinder, delay or
defraud any entity to which it is or will
become indebted;
(viii) No CalGen Subsidiary is incurring obligations or making
transfers under any evidence of
indebtedness with the intent to hinder, delay or
defraud any entity to which it is or will
become indebted; and
(ix) R.W. Beck, Inc.
("BECK") is an independent engineer and
nothing has to come to the Company's
attention to cause it to believe that Beck
is not qualified to pass on questions
relating to the technical, environmental
and economic aspects of the projects
operated by the CalGen Companies as such
projects are described in the Offering
Memorandum; the assumptions included in
Beck's report dated as of such date between
the date of the agreement and the
Closing Date, (the "BECK REPORT"), are
reasonable; that the information provided
by the CalGen Companies to Beck in
connection with the Beck Report was prepared
in good faith by the CalGen Companies; and
that nothing has come to the
attention of the Company that causes it to
believe that the factual information
or the conclusions contained in the Beck
Report are inaccurate in any material
adverse respect.
14
<PAGE>
(d) The
Collateral Agent shall have received at the Closing Date:
(i)
appropriately completed copies, which have been duly
authorized for filing by the appropriate
Person, of Uniform Commercial Code
Financing Statements naming each of the
Pledging Companies as a debtor and the
Collateral Agent as the secured party, or
other similar instruments or documents
to be filed under the UCC of all
jurisdictions as may be necessary or, in the
reasonable opinion of the Trustee and its
counsel, desirable to perfect the
security interests of the Secured Parties
pursuant to the Security Documents;
(ii) appropriately
completed copies, which have been duly
authorized for filing by the appropriate
Person, of UCC Financing Statement
Amendments (Forms UCC-3) termination
statements, if any, necessary to release
all Liens of any Person in any Collateral
previously granted by any Pledging
Company to the extent not permitted under
the Indentures after the Closing Date
(including Liens granted in connection with
the Existing Senior Secured Credit
Facility);
(iii) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a
similar search report certified by a
party reasonably acceptable to the Trustee,
dated a date reasonably near to the
Closing Date, listing all effective
Financing Statements which name any
Transaction Company (under its present name
and any previous name) as the
debtor, together with copies of such
Financing Statements (none of which shall
cover any Collateral, other than Financing
Statements that evidence (A) Liens
granted in connection with the Existing
Senior Secured Credit Facility and (B)
other existing Liens which are not
permitted under the Indentures after the
