EXECUTION COPY
THIRD AMENDMENT
THIRD AMENDMENT (this “
Amendment ”), dated as of December 20, 2006, to the
Amended and Restated Revolving Credit, Term Loan and Guarantee
Agreement, dated as of February 23, 2006 (as heretofore amended,
supplemented or otherwise modified, the “ Credit
Agreement ”), among (i) CALPINE CORPORATION (the “
Borrower ”), (ii) the subsidiaries of the Borrower
named therein (the “ Guarantors ”),
(iii) CREDIT SUISSE SECURITIES (USA) LLC and DEUTSCHE BANK
SECURITIES INC. (“ DBSI ”), as joint syndication
agents (in such capacities, collectively, the “
Syndication Agents ”), (iv) DEUTSCHE BANK TRUST
COMPANY AMERICAS (“ DB ”), as administrative
agent for the First Priority Lenders hereunder (in such capacity
and including any successors, the “ First Priority
Agent ”), (v) GENERAL ELECTRIC CAPITAL CORPORATION
(including its successors, “ GE Capital ”), as
Sub-Agent for the Revolving Lenders hereunder (in such capacity and
including any successors, the “ Sub-Agent ”),
(vi) CREDIT SUISSE (“ CS ”), as administrative
agent for the Second Priority Term Lenders hereunder (in such
capacity and including any successors, the “ Second
Priority Agent ”), (vii) LANDESBANK HESSEN THÜRINGEN
GIROZENTRALE, NEW YORK BRANCH, GE CAPITAL and HSH NORDBANK AG, NEW
YORK BRANCH, as joint documentation agents for the First Priority
Lenders hereunder, and BAYERISCHE LANDESBANK, GE CAPITAL and UNION
BANK OF CALIFORNIA, N.A., as joint documentation agents for the
Second Priority Lenders hereunder (in such capacities and including
any successors, collectively, the “ Documentation
Agents ”), and (viii) each of the financial institutions
from time to time party thereto (collectively, the “
Lenders ”).
W I T N E S S E T H
:
WHEREAS, the Borrower, the Lenders
and the Agents are parties to the Credit Agreement;
WHEREAS, the Borrower has requested
that the Lenders agree to amend certain financial covenants and
other provisions of the Credit Agreement as set forth below;
and
WHEREAS, the Lenders have agreed to
such requested amendments, but only upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of
the premises and the mutual agreements contained herein, and for
other valuable consideration the receipt of which is hereby
acknowledged, the Borrower, the Lenders and the Administrative
Agents hereby agree as follows:
2
SECTION
1. DEFINITIONS. Unless otherwise
defined herein, capitalized terms are used herein as defined in the
Credit Agreement.
|
|
2.1
|
Amendments to Section 1.1
.
|
Section 1.1 of the Credit Agreement
is hereby amended by adding the following new defined terms in
their appropriate alphabetical order:
““ CalGen Adequate
Protection Stipulation ”: the “Agreed Order Further
Modifying the Order Authorizing Use of Cash Collateral and Granting
Adequate Protection” entered into among the Debtors,
Wilmington Trust FSB, as indenture trustee, HSBC Bank USA, National
Association, as indenture trustee, Manufacturers Traders &
Trust Company, as indenture trustee, and Wilmington Trust Company,
as collateral agent, in form and substance acceptable to the
Administrative Agents and filed with the Bankruptcy Court on
December 8, 2006, granting, inter-alia, adequate protection to
CalGen Holdings, Inc. and/or any of its Subsidiaries.
“ CalGen Cash Collateral
Account ”: a segregated account of the Borrower or any of
its Subsidiaries which is a Debtor into which Unrestricted Cash (as
defined in the CalGen Adequate Protection Stipulation) distributed
by the CalGen Parties pursuant to the Calgen Adequate Protection
Stipulation is held pending the use of such Unrestricted Cash by
the Borrower or such Subsidiary.
“ CalGen Parties
”: collectively, CalGen Holdings, Inc. and its
Subsidiaries.
“ Goldendale ”:
Goldendale Energy Center, LLC.
“ Goldendale Newco
”: a limited liability company to be formed after the Third
Amendment Effective Date which shall be a direct Subsidiary of
Goldendale.
“ Otay Mesa ”:
Otay Mesa Energy Center, LLC.
“ Otay Mesa Motion
”: the “Motion For Entry of an Order (A) Approving the
PPA Reinstatement Agreement Between Certain of the Debtors, Otay
Mesa Energy Center, LLC and San Diego Gas & Electric Company;
(B) Authorizing Intercompany Transfers of Assets Comprising the
Otay Mesa Project to Otay Mesa Energy Center, LLC Free and Clear of
All Liens, Claims and Encumbrances and Other Interests; (C)
Authorizing the Assumption and Assignment of Certain Executory
Contracts and Unexpired Leases in Connection Therewith;
(D) Authorizing Calpine Corporation to Make Capital
Contributions to Otay Mesa Energy Center, LLC ; and (E) Granting
Related Relief” filed by the Borrower and certain other
Debtors in the Cases on October 23, 2006 (Docket number 2922),
seeking the approval of the Bankruptcy Court for the transactions
described therein, together with the order (which shall be in form
and substance reasonably acceptable to the Administrative Agents),
granting such motion.
3
“ Third Amendment Effective
Date ”: has the meaning set forth in the Third Amendment,
dated as of December 20, 2006, to this
Agreement.”.
|
|
2.2
|
Amendment to Section 2.17
.
|
(a) Section
2.17(b) of the Credit Agreement is hereby amended in its entirety
to read as follows:
“(b) Amounts
to be applied in connection with prepayments of the Loans and
Commitment reductions made pursuant to Section 2.17(a) shall be
applied, first , to the prepayment of the First Priority
Term Loans (in accordance with Section 2.20(b)) until the First
Priority Term Loans are paid in full and, second , to the
prepayment of the Second Priority Term Loans until paid in full.
The application of any prepayment pursuant to Section 2.17 shall be
made, first , to Base Rate Loans and, second , to
Eurodollar Loans; provided , however , in connection
with any such prepayments of the Term Loans pursuant to Section
2.17(a), such prepayments shall be applied on a pro rata basis to
the then outstanding applicable Term Loans being prepaid
irrespective of whether such outstanding Term Loans are Base Rate
Loans or Eurodollar Loans; provided that if any Lender
accepts such prepayment pursuant to Section 2.17(e), then, with
respect to such prepayment, the amount of such prepayment shall be
applied first to Term Loans that are Base Rate Loans to the full
extent thereof before application to Term Loans that are Eurodollar
Loans in a manner that minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 2.23. Each
prepayment of the Loans under Section 2.17 shall be accompanied by
accrued interest to the date of such prepayment on the amount
prepaid.”.
(b) Section
2.17(e) of the Credit Agreement is hereby amended in its entirety
to read as follows:
“(e) Notwithstanding
anything to the contrary in Section 2.17(b) or 2.20, with respect
to the amount of any mandatory prepayment described in Section 2.17
(such amount, the “ Prepayment Amount ”), the
Borrower will, on the date specified in Section 2.17 for such
prepayment, give the Administrative Agents telephonic notice
(promptly confirmed in writing) requesting that the First Priority
Agent prepare and provide to each First Priority Term Lender a
notice (each, a “ Prepayment Option Notice ”) as
described below. As promptly as practicable after receiving such
notice from the Borrower, the First Priority Agent will send to
each First Priority Term Lender a Prepayment Option Notice, which
shall be substantially in the form of Exhibit I, and shall include
an offer (“ Offer ”) by the Borrower to prepay
on the date (each a “ Mandatory Prepayment Date
”) that is ten (10) Business Days after the date of the
Prepayment Option Notice, the relevant First Priority Term Loans of
such Lender by an amount equal to the portion of the Prepayment
Amount indicated in such Lender’s Prepayment Option Notice.
Each First Priority Term Lender may accept or reject the Offer
contained in the Prepayment Option Notice. Unless the Offer is
affirmatively accepted by a First Priority Term Lender as set forth
below, the Offer shall be deemed
4
rejected by such First Priority Term
Lender. With respect to First Priority Term Lenders accepting such
Offer, on the Mandatory Prepayment Date, the First Priority Agent
shall pay to the relevant First Priority Lenders the aggregate
amount necessary to prepay that portion of the outstanding relevant
First Priority Term Loans in respect of which such Lenders have
accepted prepayment. Any First Priority Term Lenders accepting such
Offer must, as soon as practicable, but in no event later than five
(5) Business Days after receipt of the Prepayment Option Notice,
give the First Priority Agent telephonic notice (promptly confirmed
in writing) of such acceptance and the First Priority Agent will
give the Borrower corresponding telephonic notice (promptly
confirmed in writing). The amount equal to the portion of the
Prepayment Amount for which no notification of acceptance of the
Offer was received will be used, subject to the provisions of this
Section 2.17(e) set forth below, on the applicable Mandatory
Prepayment Date to repay the Second Priority Term Loans in
accordance with Section 2.17(b). Notwithstanding anything to the
contrary contained in Section 2.17(b) or 2.20, with respect to the
Prepayment Amount, the Borrower will, on the date specified in
Section 2.17 for such prepayment or no later than five (5) Business
Days after the applicable Mandatory Prepayment Date with respect to
any amount not accepted by the First Priority Term Lenders and to
be applied to the prepayment of the Second Priority Term Loans in
accordance with the immediately preceding sentence, give the
Administrative Agents telephonic notice (promptly confirmed in
writing) requesting that the Second Priority Agent prepare and
provide to each Second Priority Lender a Prepayment Option Notice.
As described above, the Second Priority Agent will send to each
Second Priority Lender a Prepayment Option Notice, which shall
include an Offer by the Borrower to prepay on the Mandatory
Prepayment Date the relevant Second Priority Term Loans of such
Lender by an amount equal to the portion of the Prepayment Amount
indicated in such Lender’s Prepayment Option Notice. Each
Second Priority Term Lender may accept or reject the Offer
contained in the Prepayment Option Notice. Unless the Offer is
affirmatively accepted by a Second Priority Term Lender as set
forth below, the Offer shall be deemed rejected by such Second
Priority Term Lender. With respect to Second Priority Term Lenders
accepting such Offer, on the Mandatory Prepayment Date, the First
Priority Agent shall pay to the relevant Second Priority Lenders
the aggregate amount necessary to prepay that portion of the
outstanding relevant Second Priority Term Loans in respect of which
such Lenders have accepted prepayment. Any Second Priority Term
Lenders accepting such offer must, as soon as practicable, but in
no event later than five (5) Business Days after receipt of the
Prepayment Option Notice, give the Administrative Agents,
telephonic notice (promptly confirmed in writing) of such
acceptance and the Second Priority Agent will give the Borrower
telephonic notice of the same (promptly confirmed in writing), and
the amount equal to the portion of the Prepayment Amount for which
no notification of acceptance of the Offer was received will be
used to repay any outstanding Revolving Loans, provided that
such repayments of the Revolving Loans shall not reduce the Total
Revolving Commitments.”.
2.3
Amendment to Section 6.1 . Section 6.1 of the Credit
Agreement is hereby amended by deleting clause (n) thereof in its
entirety and inserting in lieu thereof a new paragraph (n) as
follows:
5
“(n) Swap Agreements incurred
in the ordinary course of business and consistent with applicable
risk management guidelines established by the Borrower from time to
time and delivered to the Administrative Agents and in connection
with Swap Agreements entered into with VMAC Energy I, LLC,
associated reimbursement obligations, including with respect to
letters of credit, to providers of credit support for such Swap
Agreements in amounts not exceeding the notional amount of the
Indebtedness outstanding under such Swap
Agreements.”.
2.4
Amendment to Section 6.2 . Section 6.2 of the Credit
Agreement is hereby amended by (a) deleting the word
“and” at the end of clause (m) therein, (b) deleting
the period the period at the end of clause (n) therein and
substituting in lieu thereof a semicolon and (c) adding immediately
after clause (n) therein new clauses (o) and (p) as
follows:
“(o) first priority Liens on
the Capital Stock of Otay Mesa to secure the obligations of Otay
Mesa and its Subsidiaries under any Project Financing (as defined
in the Otay Mesa Motion) entered into by Otay Mesa or any such
Subsidiaries, as contemplated by the Otay Mesa Motion; it being
understood that the Liens of the Administrative Agent, for the
benefit of the Lenders, shall be released without any further
action upon consummation of any such Project Financing in
accordance with Section 21 of the Security and Pledge Agreement;
and
(p) Liens granted to the CalGen
Parties pursuant to the CalGen Adequate Protection
Stipulation.”.
|
|
2.5
|
Amendment to Section 6.3 .
|
Section 6.3 of the Credit Agreement
is hereby amended by (a) deleting the word “and” at the
end of clause (g) therein, (b) deleting the period at the end of
clause (h) therein and substituting in lieu thereof “;
and” and (c) adding immediately after clause (h) therein
a new clause (i) as follows:
“(i) Guarantee Obligations of
the Borrower of obligations of Greenfield Project Partnership under
the contract described in Section 6.5(l).”.
|
|
2.6
|
Amendment to Section 6.4 .
|
Section 6.4 of the Credit Agreement
is hereby amended by (a) deleting the word “and” at the
end of clause (f) therein, (b) deleting the period at the end of
clause (g) therein and substituting in lieu thereof a semicolon and
(c) adding immediately after clause (g) therein new clauses
(h) and (i) as follows:
“(h) creation by Goldendale of
Goldendale Newco; and
(i) with the prior written consent
of the Administrative Agents, mergers, consolidations or
liquidations not otherwise permitted above of Credit Parties or any
of their Subsidiaries which are inactive or have de minimis
assets.”.
|
|
2.7
|
Amendment to Section 6.5 .
|
6
Section 6.5 of the Credit Agreement
is hereby amended by (a) deleting the word “and” at the
end of clause (j) therein, (b) deleting the period at the end of
clause (k) therein and substituting in lieu thereof a semicolon and
(c) adding immediately after clause (k) therein new clauses
(l), (m), (n), (o) and (p) as follows:
“(l) the Disposition by the
Borrower, directly or indirectly, to Greenfield Project Partnership
of a purchase contract with Siemens Power Generation, Inc. relating
to warranties on turbines transferred to Greenfield Project
Partnership prior to the Third Amendment Effective Date;
(m) the Disposition by the Borrower
and Calpine Power Corporation of (i) the Facility Assets, the
Contributed Assets, the Interconnection Agreements, the CCMCI
Assigned Contracts and the Calpine Assigned Contracts (each as
defined in the Otay Mesa Motion) to Otay Mesa pursuant to the CTA
(as defined in the Otay Mesa Motion) and (ii) the Lease and
Sublease (each as defined in the Otay Mesa Motion) to San Diego Gas
& Electric Company pursuant to the Reinstatement Agreement (as
defined in the Otay Mesa Motion);
(n) (i) the Disposition by
Goldendale of all of its assets and liabilities to Goldendale Newco
substantially contemporaneously with the consummation of the
Disposition of all of the equity of Goldendale Newco owned by
Goldendale and (ii) the Disposition of all of the equity of
Goldendale Newco owned by Goldendale;
(o) the Disposition of all of the
equity interests in Towantic Energy, LLC and CPN Oxford, Inc., and
upon the consummation of such Disposition the release of the
guaranty and other obligations hereunder, and a release of the
Liens under the Loan Documents on the equity interests and assets,
of Towantic Energy LLC and CPN Oxford, Inc.; and
(p) the Disposition of all of the
equity interests in Skipanon Energy LLC., and upon the consummation
of such Disposition the release of the guaranty and other
obligations hereunder, and a release of the Liens under the Loan
Documents on the equity interests and assets, of Skipanon Energy
LLC”.
|
|
2.8
|
Amendment to Section 6.7 .
|
Section 6.7 of the Credit Agreement
is hereby amended by:
(a) adding at the end of clause (d)
therein immediately before the semicolon “which may be
expended at any time during the term of this Agreement”;
and
(b) deleting the date
“December 31, 2006” where it appears in clause (l)
therein and inserting in lieu thereof the phrase “the
Maturity Date”; and
(c)(i) deleting the word
“and” at the end of clause (m) therein, (ii) by
deleting the period at the end of clause (n) therein and
substituting in lieu thereof “; and”, and (iii) by
adding immediately after clause (n) therein a new clause (o) as
follows:
7
“(o) the Borrower may cause
Letters of Credit in an aggregate amount not to exceed $25,000,000
to be issued hereunder in favor of San Diego Gas & Electric
Company to support the obligations of Otay Mesa under the Amended
PPA (as defined in the Otay Mesa Motion).”.
|
|
2.9
|
Amendment to Section 6.10
.
|
Section 6.10 of the Credit Agreement
is hereby amended by adding at the end thereof a new sentence as
follows:
“For the purposes of Section
6.10 and Section 6.20, cash distributed by the CalGen Parties in
accordance with the CalGen Cash Collateral Stipulation and on
deposit in the CalGen Cash Collateral Account shall constitute
“restricted cash” and the lien and security interest of
the Lenders, the Collateral Agent and the Administrative Agents in
the CalGen Cash Collateral Account and the amounts distributed by
the CalGen Parties in accordance with the CalGen Cash Collateral
Stipulation and deposited from time to time therein shall be junior
to the liens granted to the CalGen Parties therein pursuant to the
CalGen Adequate Protection Stipulation.”.
|
|
2.10
|
Amendment to Section 6.11
.
|
Section 6.11 of the Credit Agreement
is hereby amended by adding at the end thereof immediately before
the period the phrase “and Liens granted on the CalGen Cash
Collateral Account in favor of the CalGen Parties pursuant to the
CalGen Adequate Protection Stipulation and Liens on cash deposits
provided as collateral pursuant to the terms of the Trading
Order”.
|
|
2.11
|
Amendment to Section 6.13
.
|
Section 6.13 of the Credit Agreement
is hereby amended by adding at the end of the second sentence
thereof the following:
“ provided , that any
such amount, if not so expended in the fiscal year for which it is
permitted, may be carried over for expenditure in the next
succeeding fiscal year”.
2.12
Amendment to Section 6.17 . The table set forth in Section
6.17 of the Credit Agreement for the months ended December 31, 2006
through November 30, 2007 is hereby amended in its entirety to read
as follows:
8
|
“ Month
|
Geysers Leverage
Ratio
|
|
December 31, 2006
|
9.50:1.00
|
|
January 31, 2007
|
9.75:1.00
|
|
February 28, 2007
|
9.75:1.00
|
|
March 31, 2007
|
10.00:1.00
|
|
April 30, 2007
|
10.00:1.00
|
|
May 31, 2007
|
10.00:1.00
|
|
June 30, 2007
|
10.00:1.00
|
|
July 31, 2007
|
10.00:1.00
|
|
August 31, 2007
|
10.00:1.00
|
|
September 30, 2007
|
10.00:1.00
|
|
October 31, 2007
|
10.00:1.00
|
|
November 30, 2007
|
10.00:1.00”.
|
|
|
2.13
|
Amendment to Section 6.18
|
. The table set forth in Section
6.18 of the Credit Agreement for the months ended December 31, 2006
through November 30, 2007 is hereby amended in its entirety to read
as follows:
|
“ Month
|
Geysers Interest Coverage
Ratio
|
|
December 31, 2006
|
1.25:1.00
|
|
January 31, 2007
|
1.25:1.00
|
|
February 28, 2007
|
1.25:1.00
|
|
March 31, 2007
|
1.20:1.00
|
|
April 30, 2007
|
1.20:1.00
|
|
May 31, 2007
|
1.20:1.00
|
|
June 30, 2007
|
1.20:1.00
|
|
July 31, 2007
|
1.20:1.00
|
|
August 31, 2007
|
1.20:1.00
|
|
September 30, 2007
|
1.20:1.00
|
|
October 31, 2007
|
1.20:1.00
|
|
November 30, 2007
|
1.20:1.00”.
|
2.14
Amendment to Section 6.21 . Section 6.21 of the Credit
Agreement is hereby amended by adding at the end of such Section
immediately before the period the following “and other than
the 2006 Adequate Protection Amount and the 2007 Adequate
Protection Amount (as such terms are defined in the Agreed Order
Further Modifying Order Authorizing Use of Cash Collateral and
Granting Adequate Protection, entered by the Bankruptcy Court on or
about December 20, 2006 (acceptable to the Administrative Agents
and as entered on such date, the “ Agreed Order
”)) so long as (v) each such payment is made in accordance
with the Agreed Order, (w) at the time of any such
9
payment no Default or Event of
Default has occurred and is continuing, (x) the aggregate amount of
all such payments made in respect of interest payable for 2006
pursuant to the Agreed Order shall not exceed $100,300,000, (y) the
proceeds of the Revolving Loans or Swingline Loans shall not be
used to make any such payment and (z) immediately after giving
effect to each such payment no Revolving Loans or Swingline Loans
shall be outstanding”.
2.15
Amendment to Section 7 . Section 7 of the Credit Agreement
is hereby amended
(a) by amending paragraph (g)
thereof by adding at the end thereof immediately before the
semicolon therein “(except a dismissal of the Cases of
Towantic Energy, LLC and CPN Oxford, Inc. substantially
contemporaneously with the sale permitted under Section 6.5(o) and
a dismissal of the Case of Skipanon Natural Gas LLC substantially
contemporaneously with the sale permitted under Section
6.5(p))”; and
(b) by deleting clause (i) of
paragraph (h) thereof in its entirety and inserting in lieu thereof
the following new clause (i):
“(i) An order of the
Bankruptcy Court (other than the CalGen Adequate Protection
Stipulation with respect to the Lien granted to the CalGen Parties
therein on the CalGen Cash Collateral Account), shall be entered
granting another Superpriority Claim or Lien pari passu with or
senior to that granted to the Lenders and the Collateral Agent
pursuant to this Agreement and the Interim Order (or the Final
Order, as applicable); or”.
|
|
2.16
|
Amendments to Schedules and Exhibits
.
|
(a)
Amendment to Schedule 6.7 . Annex 6.7A of Schedule 6.7 is
hereby amended in its entirety with a new Annex 6.7A in the form
attached hereto as Exhibit A.
(b)
Amendment to Schedule 6.8 . Schedule 6.8 is hereby amended
by adding a new item 198 at the end thereof as follows:
“198. Bill of Sale and
Agreement dated as of February 25, 2005, between Calpine
Construction Management Company, Inc., as Seller, and Calpine
Steamboat Holdings, LLC, as Purchaser, relating to two certain gas
turbine generators, accessories thereto, and performance data
sheets, diagrams, control system configuration documentation and
similar related documentation regarding such gas turbine
generators.”.
(c)
Amendment to Exhibit I . Exhibit I is hereby amended in its
entirety with a new Exhibit I in the form attached hereto as
Exhibit B.
|
|
SECTION 3.
|
CONDITIONS PRECEDENT.
|
3.1
Effective Date. This Amendment shall become effective as of
the date first set forth above (the “ Third Amendment
Effective Date ”) following the date on which all of the
following conditions have been satisfied or waived:
10
(a)
Execution and Delivery. The Administrative Agents shall have
received counterparts of this Amendment duly executed by (A) the
Borrower and the Guarantors, (B) the Fronting Bank, (C) the
Required Lenders, and (D) Majority Facility Lenders for each of
Revolving Facility, the First Priority Term Facility and the Second
Priority Term Facility.
(b)
Amendment Fee. The Administrative Agents shall have received
(i) payment, for distribution to each Lender that has signed
and delivered this Agreement to the Administrative Agents by not
later than 3:00 p.m. (New York City time) on December 19, 2006 (or
such later time or date as agreed by the Borrower and the
Administrative Agents), an amendment fee equal to the aggregate of
(A) 0.20% of the sum of the First Priority Term Loans of such
Lender then outstanding and the Revolving Commitment of such Lender
then in effect; and (B) 0.30% of the Second Priority Term
Loans of such Lender then outstanding.
(c)
Fees and Expenses. The Administrative Agents shall have
received all fees and accrued expenses of the Administrative Agents
(including invoiced fees and expenses of legal counsel to the
Administrative Agents) required to be paid by the Borrower;
and
(d)
No Default. After giving effect to this Amendment, there
shall be no Default or Event of Default.
4.1
Representations and Warranties . In order to induce the
Administrative Agents and the Lenders to enter into this Amendment,
the Borrower hereby represents and warrants to the Administrative
Agents and the Lenders that after giving effect to this Amendment,
the representations and warranties of the Borrower contained in the
Credit Agreement and the other Loan Documents are true and correct
in all material respects on and as of the Third Amendment Effective
Date (after giving effect hereto) as if made on and as of the Third
Amendment Effective Date (except where such representations and
warranties expressly relate to an earlier date in which case such
representations and warranties were true and correct in all
material respects as of such earlier date); provided that
all references to the “Credit Agreement” in any Loan
Document shall be and are deemed to mean the Credit Agreement as
amended hereby.
|
|
4.2
|
Loan Document . This Amendment constitutes a Loan
Document.
|
4.3
GOVERNING LAW . THIS AMENDMENT, AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES TO THIS AMENDMENT, SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK AND, TO THE EXTENT APPLICABLE, THE BANKRUPTCY
CODE.
4.4
Counterparts. This Amendment may be executed by the parties
hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
4.5
Consent of Guarantors. Each of the Guarantors hereby
consents to the modifications to the Credit Agreement contemplated
hereby.
11
4.6
Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the Borrower and the Guarantors and
each of their respective successors and assigns, and upon the
Administrative Agents and the Lenders and their successors and
assigns. The execution and delivery of this Amendment by any Lender
prior to the Third Amendment Effective Date shall be binding upon
its successors and assigns and shall be effective as to any loans
or commitments assigned to it after such execution and
delivery.
4.7
Limited Effect . Except as expressly modified by this
Amendment, the Credit Agreement and the other Loan Documents are
ratified and confirmed and are, and shall continue to be, in full
force and effect in accordance with their respective terms. Each
Loan Party acknowledges and agrees that such Loan Party is truly
and justly indebted to the Lenders and the Administrative Agents
for the Obligations, without defense, counterclaim or offset of any
kind, and such Loan Party ratifies and reaffirms the validity,
enforceability and binding nature of such Obligations. The Borrower
acknowledges and agrees that nothing in this Amendment shall
constitute an indication of the Lenders’ willingness to
consent to any other amendment or waiver of any other provision of
the Credit Agreement or a waiver of any Default or Event of Default
not referenced in this Amendment or for any other time
period.
4.8
Headings . Section headings used in this Amendment are for
convenience of reference only, are not part of this Amendment and
are not to affect the constructions of, or to be taken into
consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the parties
hereto have caused this Consent to be duly executed as of the day
and the year first written.
BORROWER:
CALPINE CORPORATION
|
|
By:
|
/s/ Robert E.
Fishman
|
|
|
|
Name: Robert E. Fishman
|
|
|
|
Title: Executive
Vice President
|
GUARANTORS:
AMELIA ENERGY CENTER, LP
ANACAPA LAND COMPANY, LLC
ANDERSON SPRINGS ENERGY
COMPANY
ANDROSCOGGIN ENERGY, INC.
AUBURNDALE PEAKER ENERGY CENTER,
LLC
AUGUSTA DEVELOPMENT COMPANY,
LLC
AVIATION FUNDING CORP.
BAYTOWN ENERGY CENTER, LP
BAYTOWN POWER GP, LLC
BAYTOWN POWER, LP
BELLINGHAM COGEN, INC.
BETHPAGE FUEL MANAGEMENT
INC.
BLUE HERON ENERGY CENTER,
LLC
BLUE SPRUCE HOLDINGS, LLC
BROAD RIVER ENERGY LLC
BROAD RIVER HOLDINGS, LLC
CALGEN EQUIPMENT FINANCE COMPANY,
LLC
CALGEN EQUIPMENT FINANCE HOLDINGS,
LLC
CALGEN EXPANSION COMPANY,
LLC
CALGEN FINANCE
CORPORATION
CALGEN PROJECT EQUIPMENT FINANCE
COMPANY ONE, LLC
CALGEN PROJECT EQUIPMENT FINANCE
COMPANY THREE, LLC
CALGEN PROJECT EQUIPMENT FINANCE
COMPANY TWO, LLC
CALPINE ACADIA HOLDINGS,
LLC
CALPINE ADMINISTRATIVE SERVICES
COMPANY, INC.
CALPINE AGNEWS, INC.
CALPINE AMELIA ENERGY CENTER GP,
LLC
CALPINE AMELIA ENERGY CENTER LP,
LLC
CALPINE AUBURNDALE HOLDINGS,
LLC
CALPINE BAYTOWN ENERGY CENTER GP,
LLC
CALPINE BAYTOWN ENERGY CENTER LP,
LLC
CALPINE BETHPAGE 3 PIPELINE
CONSTRUCTION COMPANY, INC.
CALPINE BETHPAGE 3, LLC
CALPINE C*POWER, INC.
CALPINE CALGEN HOLDINGS,
INC.
CALPINE CALIFORNIA DEVELOPMENT
COMPANY, LLC
CALPINE CALIFORNIA ENERGY FINANCE,
LLC
CALPINE CALIFORNIA EQUIPMENT FINANCE
COMPANY, LLC
CALPINE CALISTOGA HOLDINGS,
LLC
CALPINE CENTRAL TEXAS GP,
INC.
CALPINE CENTRAL, INC.
CALPINE CENTRAL, L.P.
CALPINE CENTRAL-TEXAS,
INC.
CALPINE CHANNEL ENERGY CENTER GP,
LLC
CALPINE CHANNEL ENERGY CENTER LP,
LLC
CALPINE CLEAR LAKE ENERGY GP,
LLC
CALPINE CLEAR LAKE ENERGY,
LP
CALPINE COGENERATION
CORPORATION
CALPINE CORPUS CHRISTI ENERGY GP,
LLC
CALPINE CORPUS CHRISTI ENERGY,
LP
CALPINE DECATUR PIPELINE,
INC.
CALPINE DECATUR PIPELINE,
L.P.
CALPINE DIGHTON, INC.
CALPINE EAST FUELS, INC.
CALPINE EASTERN
CORPORATION
CALPINE ENERGY SERVICES HOLDINGS,
INC.
CALPINE FINANCE COMPANY
CALPINE FREESTONE ENERGY GP,
LLC
CALPINE FREESTONE ENERGY,
LP
CALPINE FREESTONE, LLC
CALPINE FUELS CORPORATION
CALPINE GAS HOLDINGS, LLC
CALPINE GENERATING COMPANY,
LLC
CALPINE GEYSERS COMPANY,
L.P.
CALPINE GILROY 1, INC.
CALPINE GILROY 2, INC.
CALPINE GILROY COGEN,
L.P.
CALPINE GLOBAL SERVICES COMPANY,
INC.
CALPIRIE GORDONSVILLE GP HOLDINGS,
LLC
CALPINE GORDONSVILLE LP HOLDINGS,
LLC
CALPINE GORDONSVILLE, LLC
CALPINE GREENLEAF HOLDINGS,
INC.
CALPINE GREENLEAF, INC.
CALPINE HIDALGO DESIGN,
L.P.
CALPINE HIDALGO ENERGY CENTER,
L.P.
CALPINE HIDALGO HOLDINGS,
INC.
CALIPNE HIDALGO POWER GP,
LLC
CALPINE HIDALGO POWER, LP
CALPINE HIDALGO, INC.
CALPINE INTERNATIONAL HOLDINGS,
INC.
CALPINE INTERNATIONAL,
LLC
CALPINE INVESTMENT HOLDINGS,
LLC
CALPINE KENNEDY AIRPORT,
INC.
CALPINE KENNEDY OPERATORS
INC.
CALPINE KIA, INC.
CALPINE LEASING INC.
CALPINE LONG ISLAND, INC.
CALPINE LOST PINES OPERATIONS,
INC.
CALPINC LOUISIANA PIPELINE
COMPANY
CALPINE MAGIC VALLEY PIPELINE,
INC.
CALPINE MONTEREY COGENERATION,
INC.
CALPINE MVP, INC.
CALPINE NCTP GP, LLC
CALPINE NCTP, LP
CALPINE NORTHBROOK CORPORATION OF
MAINE, INC.
CALPINE NORTHBROOK ENERGY HOLDING,
LLC
CALPINE NORTHBROOK ENERGY,
LLC
CALPINE NORTHBROOK HOLDINGS
CORPORATION
CALPINE NORTHBROOK INVESTORS,
LLC
CALPINE NORTHBROOK PROJECT HOLDINGS,
LLC
CALPINE NORTHBROOK SERVICES,
LLC
CALPINE NORTHBROOK SOUTHCOAST
INVESTORS, LLC
CALPINE NTC, LP
CALPINE ONETA POWER I,
LLC
CALPINE ONETA POWER II
LLC
CALPINE ONETA POWER, L.P.
CALPINE OPERATIONS MANAGEMENT
COMPANY, INC.
CALPINE PASTORIA HOLDINGS,
LLC
CALPINE PHILADELPHIA,
INC.
CALPINE PITTSBURG, LLC
CALPINE POWER COMPANY
CALPINE POWER EQUIPMENT
LP
CALPINE POWER MANAGEMENT,
INC.
CALPINE POWER MANAGEMENT,
LP
CALPINE POWER, INC.
CALPINE POWERAMERICA,
INC.
CALPINE POWERAMERICA - CA,
LLC
CALPINE POWERAMERICA - CT,
LLC
CALPINE POWERAMERICA - MA,
LLC
CALPINE POWERAMERICA - ME,
LLC
CALPINE POW
