EXHIBIT 10.1.2.6
EXECUTION COPY
FOURTH AMENDMENT AND WAIVER
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT AND WAIVER, dated as of November 19, 2003 (this
"Amendment and Waiver"), to the Amended and Restated Credit Agreement, dated as
of July 16, 2003 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among CALPINE CORPORATION, a
Delaware corporation (together with its successors, the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), various lead Arrangers (as defined below), and THE BANK OF NOVA
SCOTIA ("Scotia Capital"), as administrative agent and funding agent (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent have heretofore
entered into the Credit Agreement;
WHEREAS, the Borrower, the Lenders and the Agent now desire to amend
the Credit Agreement in certain respects, as hereinafter provided; and
WHEREAS, the Borrower has requested that the Agent and the Lenders
agree to waive any failure by the Borrower to comply with certain provisions of
the Credit Agreement, upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Borrower, the Lenders and the Agent
hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings set forth in the Credit Agreement.
SECTION 2. Amendment to Section 1.1 (Defined Terms). Section 1.1 of the
Credit Agreement is hereby amended by:
(a) deleting the definition of "Deeds of Trust" in its
entirety and substituting in lieu thereof the following definition:
"Deeds of Trust" means, collectively, (i) in connection with
the Domestic Gas Reserves, the Existing Deeds of Trust, as
amended and restated by the Amended and Restated Mortgage,
Deed of Trust, Assignment, Security Agreement, Financing
Statement and Fixture Filing, dated as of July 16, 2003, and
each other mortgage, deed of trust or other real property
collateral security instrument with respect to the Domestic
Gas Reserves, from the Borrower to the Collateral Trustee (for
the benefit of, among others, the Lenders), dated as of July
16, 2003 and delivered pursuant to Article VI hereof, as
amended, supplemented, restated
or otherwise modified from time to time, (ii) in connection
with the Pledged Power Projects (other than the Fremont Energy
Center in Fremont, Ohio), each mortgage, deed of trust or
other real property collateral security instrument with
respect to a Pledged Power Project, from the Borrower to the
Collateral Trustee (for the benefit of, among others, the
Lenders), dated as of July 16, 2003 and delivered pursuant to
Article VI hereof, as amended, supplemented, restated or
otherwise modified from time to time and (iii) in connection
with the Pledged Power Project identified in the definition
thereof as the Fremont Energy Center in Fremont, Ohio, each
mortgage, deed of trust or other real property collateral
security instrument with respect to such Pledged Power
Project, from the Borrower to the Collateral Trustee (for the
benefit of, among others, the Lenders), dated as of November
18, 2003 and delivered pursuant to the Fourth Amendment, as
amended, supplemented, restated or otherwise modified from
time to time.
(b) deleting the word "and" before the Roman numeral "(vii)"
in the definition of "Pledged Power Project" and by adding at the end
of such definition the clause "; and (viii) as of November 18, 2003,
the Fremont Energy Center in Fremont, Ohio";
(c) by inserting the following new definition in appropriate
alphabetical order:
"Fourth Amendment" means the Fourth Amendment and Waiver to
the Amended and Restated Credit Agreement, dated as of
November 19, 2003, among the Borrower, the Lenders and the
Agent.
SECTION 3. Waiver of Section 8.2.3 (Liens). The Agent and the Required
Lenders hereby waive any violation of Section 8.2.3 of the Credit Agreement
occurring as a result of the granting by Calpine Gilroy of the Gilroy Plant Lien
and the Calpine Note Pledge (each as defined in the letter from the Borrower
attached hereto as Exhibit A, the "Gilroy Waiver Request Letter").
SECTION 4. Waiver of Section 8.2.13 (Negative Pledges, Restrictive
Agreements, etc.). The Agent and the Required Lenders hereby waive any violation
of Section 8.2.13 of the Credit Agreement occurring as a result of the
undertaking by the Borrower and Calpine Gilroy of the Restrictive Covenants (as
defined in the Gilroy Waiver Request Letter).
SECTION 5. Effectiveness. This Amendment and Waiver shall become
effective upon fulfillment of the following conditions precedent: (a) the
Borrower and each Guarantor shall have delivered to the Agent a duly executed
copy of this Amendment and Waiver; (b) the Agent shall have received duly
executed copies of this Amendment and Waiver from the Required Lenders; (c) the
Agent shall have received, on or before the date hereof, the Deed of Trust (as
defined above) for the Fremont Energy Center in Fremont, Ohio, executed and
delivered by the Borrower to the Collateral Trustee (for the benefit of, among
others, the Lenders), together with any additional supporting documentation as
shall be reasonably requested by the Agent, including (i) a certificate from the
Borrower's insurance advisor as to the sufficiency of the Borrower's insurance
program and compliance with the insurance requirements of the Loan Documents and
(ii) copies of all consents and approvals required in connection with the
execution and delivery by the Borrower of such Deed of Trust; (d) the Agent
shall have received
an opinion, dated the date hereof and addressed to the Agent and all Lenders,
from local counsel with respect to the Deed of Trust for the Fremont Energy
Center in Fremont, Ohio, in form and substance satisfactory to the Agent; (e)
the Agent shall have received evidence satisfactory to it that ownership of the
Fremont Energy Center in Fremont, Ohio (including, without limitation, all power
generation property and related equipment at such location) has been conveyed to
the Borrower by merger or otherwise; (f) the Agent shall have received such
other documents as the Agent shall have reasonably requested; and (g) no Default
or Event of Default shall have occurred and be continuing on the date hereof
after giving effect to this Amendment and Waiver.
SECTION 6. Representations and Warranties. The Borrower hereby
represents and warrants that the representations and warranties contained in the
Credit Agreement and the Gilroy Waiver Request Letter will be, after giving
effect to this Amendment and Waiver, true and correct in all material respects,
as if made on and as of the date hereof, except for representations and
warranties which speak as of a certain date, which representations and
warranties shall be true and correct in all material respect as of such date.
SECTION 7. Continuing Effect of Credit Agreement. This Amendment and
Waiver shall not constitute an amendment or waiver of any other provision of the
Credit Agreement or the Loan Documents not expressly referred to herein and
shall not be construed as a waiver or consent to any further or future action on
the part of the Borrower that would require a waiver or consent of the Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. All references to the Credit Agreement in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the
Credit Agreement as amended hereby.
SECTION 8. Counterparts. This Amendment and Waiver may be executed in
counterparts and all of the said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
of this Amendment and Waiver by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 9. Governing Law. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 10. Expenses. The Borrower agrees to pay or reimburse the Agent
for all of its out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of this Amendment and Waiver, including
the fees and disbursements of counsel to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
CALPINE CORPORATION
By: /s/ XXXXXXX XXXXXX
----------------------------------
Name:
Title:
The undersigned Guarantors hereby consent and agree to the foregoing Fourth
Amendment and Waiver and agree that their Guarantee as set forth in the Security
Agreement remains in full force and effect:
XXXXXXXX MINERALS (USA), INC.
By: /s/ XXXXXXX XXXXXX
------------------------------------
Name:
Title:
JOQ CANADA, INC.
By: /s/ XXXXXXX XXXXXX
------------------------------------
Name:
Title:
XXXXXXXX CANADA HOLDINGS, LLC
By: /s/ XXXXXXX XXXXXX
------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Agent
By: /s/ XXXX X. XXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH
By: /s/ XXXXXX XXXXXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ XXXXX X. XXXXX
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ING CAPITAL LLC
By: /s/ XXXXX XXXXXX
--------------------------------
Xxxxx Xxxxxx
Managing Director
By: /s/ G. XXXXXXXX XXXXXXX, XX.
-------------------------------
G. Xxxxxxxx Xxxxxxx,
Xx. Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXXX XXXXXXX
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
This FOURTH AMENDMENT AND WAIVER, dated as
of November [__], 2003 (this "Amendment and
Waiver"), to the Amended and Restated Credit
Agreement, dated as of July 16, 2003 (as the
same may be amended, supplemented or
otherwise modified from time to time, the
"Credit Agreement"), among CALPINE
CORPORATION, a Delaware corporation
(together with its successors, the
"Borrower"), the various financial
institutions as are or may become parties
hereto (collectively, the "Lenders"),
various lead Arrangers (as defined below),
and THE BANK OF NOVA SCOTIA ("Scotia
Capital"), as administrative agent and
funding agent (in such capacity, the
"Agent").
AURUM CLO 2002-I LTD.
By: Columbia Management Advisors, Inc.,
As Investment Manager
By: /s/ XXXXXXXX X XXXX
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
This FOURTH AMENDMENT AND WAIVER, dated as
of November [__], 2003 (this "Amendment and
Waiver"), to the Amended and Restated Credit
Agreement, dated as of July 16, 2003 (as the
same may be amended, supplemented or
otherwise modified from time to time, the
"Credit Agreement"), among CALPINE
CORPORATION, a Delaware corporation
(together with its successors, the
"Borrower"), the various financial
institutions as are or may become parties
hereto (collectively, the "Lenders"),
various lead Arrangers (as defined below),
and THE BANK OF NOVA SCOTIA ("Scotia
Capital"), as administrative agent and
funding agent (in such capacity, the
"Agent").
XXXXX XXX & XXXXXXX CLO I LTD.
By: Columbia Management Advisors, Inc.,
As Portfolio Manager
By: /s/ XXXXXXXX X XXXX
---------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
AMMC CDO I, LTD.
BY: AMERICAN MONEY MANAGEMENT CORP.,
AS COLLATERAL MANAGER
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
AMMC CDO II, LTD.
BY: AMERICAN MONEY MANAGEMENT CORP.,
AS COLLATERAL MANAGER
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
GALLATIN FUNDING I LTD.
BY: BEAR XXXXXXX ASSET MANAGEMENT INC.
AS ITS COLLATERAL MANAGER
By: /s/ XXXXXXXX XXXX
---------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
ARES III CLO LTD.
By: ARES CLO Management LLC,
Investment Manager
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES IV CLO LTD.
By: Ares CLO Management IV, L.P.,
Investment Manager
By: Ares CLO XX XX, LLC,
Its Managing Member
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES V CLO LTD.
By: Ares CLO Management V, L.P.,
Investment Manager
By: Ares CLO GP V, LLC,
Its Managing Member
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES VI CLO LTD.
By: Ares CLO Management VI, L.P.,
Investment Manager
By: Ares CLO GP VI, LLC,
Its Managing Member
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES VII CLO LTD.
By: Ares CLO Management VII, L.P.,
Investment Manager
By: Ares CLO GP VII, LLC,
Its General Partner
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES VIII CLO LTD.
By: Ares CLO Management VIII, L.P.,
Investment Manager
By: Ares CLO GP VIII, LLC,
Its General Partner
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
