EXHIBIT 10.13
EXECUTION COPY
MASTER ADMINISTRATIVE SERVICES AGREEMENT
This MASTER ADMINISTRATIVE SERVICES AGREEMENT (the
"Agreement"), dated as of March 23, 2004 (the "Effective Date"), is entered into
by and among CALPINE GENERATING COMPANY, LLC, a Delaware limited liability
company ("CalGen"), CalGen Finance Corp., a Delaware corporation ("Finance
Corp."), and the other direct or indirect, wholly-owned subsidiaries of CalGen,
as listed on Appendix A, from time to time party hereto (each a "Subsidiary"
and, together with CalGen and Finance Corp., the "Companies"), and CALPINE
ADMINISTRATIVE SERVICES COMPANY, INC., a Delaware corporation, as the
administrative agent hereunder (the "Administrative Agent").
RECITALS
WHEREAS, each Company desires to enter into this Agreement
with the Administrative Agent pursuant to which the Administrative Agent shall
provide the Services with respect to such Company, as more fully described
below; and
WHEREAS, each Subsidiary is a direct or indirect, wholly-owned
subsidiary of CalGen, and certain of the Subsidiaries, identified as "Facility
Owners" on Appendix A, own gas-fired simple or combined-cycle electric
generation facilities (each a "Facility") described on Appendix A hereto; and
WHEREAS, the Companies and the Administrative Agent have
agreed to set forth their agreement regarding the Services to be provided for
each Company in this single Agreement, provided that this Agreement shall apply
separately and independently to each Company, as described below; and
WHEREAS, CalGen has agreed to cause each Subsidiary acquired
by CalGen after the Effective Date to become a party to this Agreement by
executing a Joinder to this Agreement in the form attached as Appendix B hereto;
and
WHEREAS, CalGen intends to enter into certain Indentures (the
"Indentures") among CalGen, Finance Corp. and Wilmington Trust FSB, as trustee
(the "Trustee"), as well as certain other Security Agreements (as defined in the
Indenture);
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and other valuable consideration, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1. Definitions. Unless otherwise specified,
capitalized terms used but not defined herein have the respective meanings
assigned to such terms in the Indentures.
"Affiliate" means with respect to any Person, any other Person
that directly or indirectly controls, is controlled by, or is under common
control with such Person. For purposes of the foregoing definition, "control"
means (i) the direct or indirect ownership of fifty percent (50%) or more of the
outstanding capital stock or other securities or equity interests having
ordinary voting power to elect the board of directors, managing general partner
or similar managing authority or (ii) the power to direct the management of such
Person.
"Bankruptcy Event" shall be deemed to occur, with respect to
any Person, if that Person shall institute a voluntary case seeking liquidation
or reorganization under the Bankruptcy Law, or shall consent to the institution
of an involuntary case thereunder against it; or such Person shall file a
petition or consent or shall otherwise institute any similar proceeding under
any other applicable Federal or state law, or shall consent thereto; or such
person shall apply for, or by consent or acquiescence there shall be an
appointment of, a receiver, liquidator, sequestrator, trustee or other officer
with similar powers for such Person, or any substantial part of its assets; or
such Person shall make an assignment for the benefit of its creditors; or such
Person shall admit in writing its inability to pay its debts generally as they
become due; or if an involuntary case shall be commenced seeking liquidation or
reorganization of such Person under the Bankruptcy Law or any similar
proceedings shall be commenced against such Person under any other applicable
Federal or state law and (i) the petition commencing the involuntary case is not
timely controverted, (ii) the petition commencing the involuntary case is not
dismissed within 60 days of its filing, (iii) an interim trustee is appointed to
take possession of all or a portion of the property, and/or to operate all or
any part of the business of such Person and such appointment is not vacated
within 60 days, or (iv) an order for relief shall have been issued or entered
therein; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee or other
officer having similar powers, of such Person or all or a part of its property
shall have been entered; or any other similar relief shall be granted against
such Person under any applicable Federal or state law.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Indemnitees" of a party means each of its Affiliates and
permitted assignees, such party's lenders, and each of the officers, directors,
employees, agents, partners and shareholders of the party and its Affiliates,
permitted assignees and lenders.
"Laws" means all laws, statutes, rules, regulations, orders
and ordinances or specified standards or objective criteria contained in any
applicable license, permit or approval, or other legislative or administrative
act, of the United States of America or any state, agency, department,
authority, political subdivision or other instrumentality thereof, or a decree,
judgment or order of a court from time to time in effect, including but not
limited to those governing wages, hours, employment discrimination and safety,
laws regarding workers' compensation, disability laws and employee benefit laws
and including any applicable engineering, construction, safety or electrical
generation code.
"Person" means any natural person, corporation, partnership,
limited liability company, firm or other entity.
"Prudent Engineering and Operating Practices" means those
practices, methods, equipment, specifications and standards of safety and
performance, as the same may change from time to time, as are commonly used by
independent operators of electric generation stations of a type and size similar
to those constituting the applicable Facility as good, safe and prudent
engineering practices in connection with the operation, maintenance, repair and
use of gas turbines, electrical generators and other equipment and facilities
with commensurate standards of safety, performance, dependability, efficiency
and economy. Prudent Engineering and Operating Practices are not intended to be
limited to the optimum practice or method to the exclusion of others, but rather
to be a spectrum of possible but reasonable practices and methods.
"Reference Rate" means the "prime rate" as published in The
Wall Street Journal from time to time.
SECTION 1.2. Rules of Construction. As used in this Agreement,
the terms "herein," "herewith," and "hereof" are references to this Agreement,
taken as a whole, the term "includes" or "including" shall mean "including,
without limitation," and references to a "Section," "subsection," "clause,"
"Article," "Exhibit," "Appendix," or "Schedule" shall mean a Section,
subsection, clause, Article, Exhibit, Appendix or Schedule of this Agreement, as
the case may be, unless in any such case the context requires otherwise. All
references to a given agreement, instrument or other document shall be a
reference to that agreement, instrument or other document as modified, amended,
supplemented and restated through the date as of which such reference is made,
and reference to a Law includes any amendment or modification thereof. The
singular shall include the plural and the masculine shall include the feminine
and neuter, and vice versa. Where the words "required," "approved,"
"satisfactory," "determined,"
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"acceptable," "decision" or words of like import are used in this Agreement,
action by the Company is indicated unless the context clearly indicates
otherwise.
SECTION 1.3 Appendices and Exhibits. This Agreement consists
of this document itself and the following Appendices which are specifically made
a part hereof by reference:
APPENDIX A Subsidiaries
APPENDIX B Form of Joinder
SECTION 1.4 Conflicting Provisions. In the event of any
conflict between this document and any Appendix, schedule or exhibit hereto, the
terms and provisions of this document, as amended from time to time, shall
control. Subject to the foregoing, the several instruments forming part of this
Agreement are to be taken as mutually explanatory of one another and in the case
of ambiguities or discrepancies within or between such parts the same shall be
explained and adjusted by the issuance of a written instruction by CalGen.
ARTICLE 2
APPOINTMENT; SERVICES
SECTION 2.1 Appointment.
(a) Subject to Sections 2.1(b) and 2.1(c) below, each
Company hereby appoints and retains the Administrative Agent to be and
act as its agent to do and perform, throughout the Term, the Services
for such Company, on the terms and conditions of this Agreement. The
Administrative Agent hereby accepts such appointment and agrees to
perform the Services in accordance with the terms and conditions of
this Agreement. As agent for each Company, the Administrative Agent is
authorized to act for such Company in its own name or in the name of
such Company, as deemed necessary or advisable by the Administrative
Agent
(b) This Agreement, including all Appendices, as
applicable, exhibits and attachments, shall constitute a separate
contract between each Company and the Administrative Agent. The
obligations and liabilities of the Administrative Agent and each
Company are independent of the obligations and liabilities of the
Administrative Agent and the other Companies, and events giving rise to
the termination of this Agreement by any Company shall not entitle the
Administrative Agent or any other Company to terminate this Agreement
with respect to itself or any other Company. The Administrative Agent
and each Company agree that, upon the reasonable request of either
party, they will execute separate, individual administrative services
agreements with respect to such Company on the same terms and
conditions (modified as necessary to reflect the fact that only one
Company is covered) as are set forth in this Agreement.
(c) CalGen shall have the right to add additional
Subsidiaries to this Agreement by causing each such Subsidiary to sign
a Joinder to this Agreement in the form attached as Appendix B hereto.
If CalGen sells or otherwise transfers a Subsidiary such that such
Subsidiary is no longer owned by a Subsidiary (or sells or otherwise
transfers a Subsidiary, such that such Subsidiary is no longer a direct
or indirect wholly-owned subsidiary of CalGen), this Agreement shall
not apply to such Subsidiary from and after the effective date of such
sale or transfer, and, except as otherwise expressly provided herein
(including under Article 9), CalGen, the applicable Subsidiary and the
Administrative Agent will be released from all future liabilities, and
will no longer have any obligations, hereunder with respect to such
Subsidiary.
SECTION 2.2 Services. Subject to the terms of this Agreement
(including Section 2.1), the Administrative Agent shall perform, or cause to be
performed, on behalf of each of each Company, all customary and reasonable
administrative services provided by owners or operators of electric generation
facilities similar to the Facilities (the "Services"), including, without
limitation, accounting,
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auditing, financial reporting, budgeting and forecasting, tax, cash management,
review of significant operating and financial matters, contract administrative
services, invoicing, computer and information services, and such other
administrative and regulatory filing services as directed by the applicable
Company. Without limiting the foregoing, from and after the Effective Date, the
Administrative Agent shall provide the following Services to each Company:
(a) maintain its books and records in accordance with
such Company's constitutive documents (including, as applicable, its
certificate of incorporation, by-laws, limited liability company
operating agreement and/or partnership agreement), the Indenture, good
business practice, Internal Revenue Service regulations, applicable
law, and generally accepted accounting principles and retain and
oversee independent auditors to review such books and records on an
annual basis;
(b) provide cash management services, including (i)
establishing bank accounts, (ii) investing and transferring funds and
(iii) effecting payments in accordance with any contracts, agreements
or other arrangements applicable to the Company, including, as
applicable, the Index Based Gas Sale and Power Purchase Agreement, the
WECC Fixed Price Gas Sale and Power Purchase Agreement (together, the
"CES Power Purchase Agreements"), any other power purchase agreements
(whether with an unrelated third party or an Affiliate of such Company)
including for steam or electric energy to which such Company is or may
in the future be, a party (collectively with the CES Power Purchase
Agreements, the "Power Purchase Agreements");
(c) provide accounting services related to the
development and implementation of financial controls and systems,
including the administering of the proceeds of the issuance of the
Notes and the Term Loans;
(d) exercise all rights and administer all obligations of
such Company under the Indenture, the Term Loan Agreement, the
Revolving Credit Agreement and the Security Agreements, including,
without limitation, taking all actions necessary or desirable in order
to perfect and maintain the perfection and priority of security
interests granted by such Company to its lenders or creditors over any
assets of such Company;
(e) exercise all rights and perform all of the
administrative obligations of such Company under each Power Purchase
Agreement to which it is a party, including, without limitation,
serving as such Company's point-of-contact, coordinating the exercise
of such Company's rights and the performance of its obligations under
such Power Purchase Agreements, providing and receiving notices in
accordance with the terms thereof, and resolving all disputes and
coordinating the resolution of disputes (including arbitration
proceedings) thereunder;
(f) to the extent that amounts are available from the
Company, pay (or arrange for payment by the Collateral Agent of) all
fees, debts and obligations (including taxes) incurred or payable by or
on behalf of the Company;
(g) provide tax-related services;
(h) make and prosecute, or cause to be made or
prosecuted, such filings and reports, keep such records, and take or
cause to be taken such other actions as may be necessary and lawful to
maintain the existence and good standing of such Company and to ensure
the compliance by such Company with all applicable laws, regulations,
authorizations, and orders of government agencies (including, without
limitation, the preparation and/or filing of any reports required to be
made on behalf of such Company with the Federal Energy Regulatory
Commission); and
(i) do and perform such other acts as may be mutually
agreed to by the Administrative Agent and the Company from time to
time.
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Notwithstanding anything to the contrary contained in this Section 2.2 or
elsewhere in this Agreement, the Administrative Agent agrees that it will (a)
not take (or fail to take), any action the taking of which (or the failure to
take) could reasonably be expected to cause the applicable Company to violate
any negative covenant contained in any of the Indentures, the Term Loan
Agreements or the Revolving Credit Agreement and (b) submit for approval to the
appropriate officers, members or partners of the applicable Company all proposed
actions of or on behalf of such Company the approval of which by such officers,
members or partners is required by the constitutive documents of such Company.
SECTION 2.3 Standard of Services. The Administrative Agent
shall perform the Services for each Company in all respects in accordance with:
(i) all applicable Laws, (ii) applicable Prudent Engineering and Operating
Practices, (iii) as to each Subsidiary, such Subsidiary's and its Facility's
regulatory status, as applicable, (iv) all safety, fire protection and other
requirements of each Company's insurance policies, (v) the applicable
requirements of any Power Purchase Agreements, and (vi) any warranties related
to the Facilities.
ARTICLE 3
COMPENSATION
SECTION 3.1 Compensation. The Administrative Agent shall be
compensated for the Services on a cost reimbursable basis, including reasonable
overhead costs.
SECTION 3.2 Reimbursable Expenses. The Administrative Agent
shall be reimbursed for all costs (including internal costs of the
Administrative Agent and its Affiliates and amounts paid to third parties)
incurred for Services, to the extent paid and without duplication (the
"Reimbursable Expenses"). In lieu of making direct payment itself of any costs
or expenses that would constitute Reimbursable Expenses owed to suppliers,
vendors, service providers or other third parties for goods and services
provided to the Companies in connection with the Services hereunder, the
Administrative Agent may request that CalGen (as to Reimbursable Expenses
incurred in respect of it, any Subsidiary or any Facility), or any other Company
(as to Reimbursable Expenses incurred in respect of Services provided to it or,
if applicable, its Facility), pay such costs and expenses directly to such
suppliers, vendors, service providers and other third parties, in which event
CalGen or such other Company, as applicable, shall do so in a timely manner. The
Administrative Agent shall give CalGen or the other Company, as applicable, not
less than 30 days prior written notice in the event it requests such direct
payment and shall review and approve all invoices from suppliers, vendors,
service providers and other third parties prior to submitting them to CalGen or
any other Company for payment. No amounts directly paid by any Company as
provided in this Section 3.2 may be recovered by the Administrative Agent.
ARTICLE 4
PAYMENT
SECTION 4.1 Invoices. Within ten days after the last day of
each six-month anniversary of the Effective Date during the Term, the
Administrative Agent shall send each Company an invoice setting forth in
reasonable detail the Administrative Agent's compensation for Services provided
to such Company for such preceding month, accompanied by such supporting
documentation and additional data as such Company may reasonably request.
SECTION 4.2 Payment. Subject to Section 4.3, within 20 days
following the date the Company receives an invoice under Section 4.1, such
Company (or, if a Subsidiary, either such Subsidiary or CalGen on behalf of such
Subsidiary) shall pay to the Administrative Agent the undisputed amount of the
invoice. All payments to the Administrative Agent shall be made by wire transfer
to the account of the Administrative Agent, or such other depository as the
Administrative Agent shall designate by written notice to such Company and
CalGen. Any amounts owing from the Administrative Agent to such
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Company hereunder may at such Company's option be credited against amounts owing
by such Company to the Administrative Agent hereunder.
SECTION 4.3 Notice of Payment Disputes. Notwithstanding the
foregoing, if prior to the expiration of the applicable period for payment
referenced in Section 4.2, a Company disputes that the quality of any Services
provided to it or to a Facility owned, directly or indirectly, by such Company
(payment for which Services is being requested from such Company) is in
accordance with this Agreement, such Company (or, if a Subsidiary, either such
Subsidiary or CalGen on behalf of such Subsidiary) shall, prior to the
expiration of such period, provide the Administrative Agent with written notice
identifying the basis for such dispute. Thereafter, the payment of such disputed
amounts shall be deferred until such dispute has been resolved.
SECTION 4.4 Late Payments. If there is a dispute about any
amount invoiced by the Administrative Agent, the amount not in dispute shall be
promptly paid as described in this Article 4. Any disputed amounts which are
ultimately determined to have properly payable, as well as any undisputed
amounts not paid when due, shall be paid with interest at the lower of (a) the
Reference Rate plus two percent, or (b) the highest rate permitted under
applicable law.
SECTION 4.5. Audit. The Administrative Agent shall, throughout
the Term of this Agreement and for 36 months following the expiration or earlier
termination hereof with respect to a Company, maintain readily accessible books
and records of the Reimbursable Expenses for such Company (including copies of
supporting invoices) incurred in connection with this Agreement. Each Company
may, from time to time and upon reasonable notice to the Administrative Agent,
review (or cause its auditors to review), such books and records.
ARTICLE 5
RESPONSIBILITIES OF COMPANY
SECTION 5.1 Items to be Furnished by Company. Each Company
shall furnish, or cause to be furnished, to the Administrative Agent, at such
Company's expense, such information, documentation, services, materials and
other items with respect to such Company (or any applicable Facility), together
with such other items that are not required to be provided by the Administrative
Agent hereunder and which are reasonably requested by the Administrative Agent
to perform the Services for the applicable Company and to otherwise fulfill its
obligations under this Agreement. All such items shall be made available at such
times and in such manner as may be required for the expeditious and orderly
performance of the Services by the Administrative Agent.
SECTION 5.2 Remedies for Breach of Section 5.1. In the event
of a breach by a Company of any of its obligations under Section 5.1, the
Administrative Agent shall be entitled to suspend its performance hereunder with
respect to such Company (but only for such Company) to the extent prevented or
restricted in performing its Services for such Company by such breach until such
breach has been cured. The Administrative Agent shall not be entitled to
terminate this Agreement with respect to such Company on account of a breach of
Company's obligations under Section 5.1 unless continued performance of this
Agreement by the Administrative Agent with respect to such Company could violate
any applicable Law or could reasonably be expected to subject the Administrative
Agent to unreasonable liability.
ARTICLE 6
INDEPENDENT CONTRACTOR
SECTION 6.1 The Administrative Agent shall be an independent
contractor with respect to the performance of the Services hereunder for each
Company. Neither the Administrative Agent nor its employees, subcontractors,
vendors or suppliers, or the employees of any such parties employed in
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Company administrative operations, shall be deemed to be agents,
representatives, employees, or servants of a Company, except to the extent of
any express agency created hereunder pursuant to the authority granted to the
Administrative Agent under Article 2. Except as otherwise expressly provided
herein, this Agreement shall not constitute the Administrative Agent as the
legal representative or agent of any Company, nor shall the Administrative Agent
have the right or authority to assume, create or incur any liability or
obligation, express or implied, against, in the name of, or on behalf of any
Company or its members, partners, officers or parents. This Agreement is not
intended to create, and shall not be construed to create, a relationship of
partnership or an association for profit between any Company and the
Administrative Agent.
ARTICLE 7
TERM AND TERMINATION
SECTION 7.1 Term. This Agreement shall become effective on the
Effective Date and, if not earlier terminated pursuant to this Article 7, shall
continue for 10 years (the "Term"), and shall thereafter continue for successive
one-year renewal terms; provided that the Term shall not be so renewed as to any
or all of the Companies if, no less than 30 days prior to the end of the Term or
any one-year renewal term thereafter, (a) any Company or the Administrative
Agent provides the other with a written notice of nonrenewal (in which case this
Agreement shall not be renewed as to such Company) or (b) as to all of the
Companies if CalGen or the Administrative Agent provides the other and all of
the other Companies with a written notice of nonrenewal (in which case this
Agreement shall not be renewed as to all Companies).
SECTION 7.2 Termination.
(a) This Agreement may be terminated by any Company with
respect to itself, or by CalGen with respect to itself and all the
Subsidiaries: (i) at any time on 90 days' written notice to the
Administrative Agent and the payment to Administrative Agent of all
outstanding amounts owed to Administrative Agent under this Agreement
by CalGen or such Company, or CalGen and all the Subsidiaries, as
applicable, or (ii) upon the bankruptcy, insolvency or liquidation of
the Administrative Agent.
(b) The Administrative Agent and any Company may
terminate this Agreement in accordance with the terms of Section 8.2.
(c) Notwithstanding the provisions of this Section 7.2,
the termination of this Agreement shall not in any manner change or
excuse the obligations of the Administrative Agent under this Agreement
arising prior to such termination.
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 Event of Default. An Event of Default shall mean
with respect to any party (the "Defaulting Party"):
(a) The failure by the Defaulting Party to make, when
due, any payment required hereunder if such failure is not remedied
within ten Business Days after written notice of such failure is given
to the Defaulting Party by (i) if the Defaulting Party is the
Administrative Agent, the applicable Company and (ii) if the Defaulting
Party is a Company, the Administrative Agent;
(b) Any representation or warranty made by the Defaulting
Party herein shall prove to have been false or misleading in any
material respect when made;
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(c) The failure by the Defaulting Party to perform any
material covenant set forth in this Agreement, other than (i) a default
with respect to a payment obligation, which is subject to Section
8.1(a) above and (ii) if the Defaulting Party is a Company, a default
with respect to Section 5.1, the sole remedy for which is set forth in
Section 5.2; and
(d) The occurrence of a Bankruptcy Event with respect to
the Defaulting Party.
SECTION 8.2 Termination Right. Upon an Event of Default, the
Administrative Agent (if the Defaulting Party is a Company), or the applicable
Company (if the Defaulting Party is the Administrative Agent) (in each case, the
"Non-Defaulting Party") may terminate this Agreement by notice to the Defaulting
Party.
ARTICLE 9
INDEMNIFICATION; LIMITATION OF LIABILITY
SECTION 9.1 Administrative Agent Indemnification. Subject to
Sections 9.3 and 9.4, the Administrative Agent shall, with respect to each
Company, defend, indemnify and hold such Company and its Indemnitees harmless
from and against any and all claims, actions, damages, expenses (including
reasonable attorneys' fees), losses or liabilities incurred by or asserted
against such Company or its Indemnitees, and any and all fees or penalties
incurred by such Company or its Indemnitees, to the extent that such claims,
actions, damages, expenses, losses, liabilities, are caused by the
Administrative Agent's breach of this Agreement or the negligence or willful
misconduct of the Administrative Agent, its Affiliates, employees, partners,
agents, officers or directors.
SECTION 9.2 Company Indemnification. Each Company shall
defend, indemnify and hold the Administrative Agent and its Indemnitees harmless
from and against any and all claims, actions, damages, expenses (including
reasonable attorneys' fees), losses or liabilities incurred by or asserted
against the Administrative Agent or its Affiliates, officers, directors,
employees or agents with respect to such Company to the extent that such claims,
actions, damages, expenses, losses or liabilities are caused by the negligence
or willful misconduct of such Company, its employees, partners, agents, officers
or directors.
SECTION 9.3 Limitation of Liability. Notwithstanding any
provision in this Agreement to the contrary, no party nor its Indemnitees shall
be liable hereunder for consequential or indirect loss or damage, including loss
of project revenues, cost of capital, loss of goodwill, increased operating
costs, or any other special, incidental or punitive damages; provided, however,
that the foregoing limitation shall not apply to damages resulting from the
willful misconduct of a party hereto; provided, further that nothing in this
sentence shall limit the obligations of each Company and the Administrative
Agent under this Article 9 to indemnify the other party with respect to claims
by third parties otherwise covered by the provisions of this Article 9. The
Administrative Agent's maximum cumulative liability under this Agreement with
respect to a particular Company, including liability for matters resulting from
the Administrative Agent's breach of this Agreement with respect to such
Company, shall be limited to $50,000 with respect to each Company during each
calendar year in which liability is sought to be imposed; provided, however,
that the foregoing limitation of liability shall not apply to damages resulting
from the Administrative Agent's willful misconduct, and provided further that
the Administrative Agent shall not be liable to the extent that a liability is
covered by the proceeds collected under any policy of insurance then in force
with respect to the Services performed for such Company, with respect to which
the insurer has waived subrogation against the Administrative Agent (which
proceeds shall be applied directly to satisfy the Administrative Agent's
liability under this Agreement). The parties agree that, except for such
liability, each Company's only remedy for breach of this Agreement by the
Administrative Agent shall be to terminate this Agreement pursuant to Section
7.2. The parties further agree that the waivers and disclaimers of liability,
indemnities, releases from liability, and limitations on liability expressed in
this Agreement shall survive termination or expiration of this Agreement with
respect to any Company, and shall apply (unless otherwise expressly indicated),
whether in contract, equity, tort or otherwise, even in the event of the fault,
negligence, including sole negligence, strict liability, or breach of warranty
of the party
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indemnified, released or whose liabilities are limited, and shall extend to the
partners, principals, directors, officers and employees, agents and related or
affiliated entities of such party, and their partners, principals, directors,
officers and employees.
SECTION 9.4 Limitations on Recourse. The obligations of the
parties under this Agreement are obligations of the parties only, and no
recourse shall be available against any officer, director, employee, agent,
stockholder, member or partner of a party or its Affiliates. In addition,
recourse against a Company with respect to this Agreement is limited to such
Company's tangible and intangible assets, the revenue and income produced
thereby and the proceeds of any of the foregoing.
SECTION 9.5 Survival. The provisions of this Article 9 shall
survive termination, cancellation or expiration of this Agreement with respect
to any Company.
ARTICLE 10
PROPRIETARY DATA
SECTION 10.1 The Administrative Agent and each Company agree
to hold confidential and proprietary, except as may be reasonably necessary from
time to time to perform the Services hereunder, any proprietary or trade secret
information supplied to the other, or designated as confidential. The provisions
of this Article 10 shall not apply to information within any one of the
following categories or any combination thereof: (a) information which was in
the public domain prior to the receipt thereof or which subsequently becomes
part of the public domain by publication or otherwise except by the recipient's
wrongful act; (b) information which the recipient demonstrates was lawfully in
his possession prior to receipt thereof through no breach of any confidentiality
obligation; (c) information received from a third party having no obligation of
confidentiality with respect thereto; or (d) information required to be divulged
pursuant to law or court order.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Representations and Warranties. Each party
represents and warrants to each other party that: (a) such party has the full
power and authority to execute, deliver and perform this Agreement and to carry
out the transactions contemplated hereby; (b) the execution and delivery of this
Agreement by such party and the consummation by such party of the transactions
contemplated hereby have been duly authorized by all requisite corporate or
other action, and this Agreement has been duly executed and delivered by such
party, enforceable against it in accordance with the terms hereof, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditor's rights generally and to
general principles of equity; (c) no authorization, consent, approval or order
of, notice to, or registration, qualification, declaration or filing with, any
governmental authority, is required for the execution, delivery and performance
by such party of this Agreement or the consummation by such party of the
material transactions contemplated hereby, other than regulatory and similar
approvals needed for the operation of the Facilities, as applicable, and (d)
none of the execution, delivery and performance by such party of this Agreement,
the compliance with the terms and provisions hereof, and the consummation of the
transactions contemplated hereby, conflicts or will conflict with or result in a
breach or violation of any of the terms, conditions, or provisions of any law,
governmental rule or regulation or the charter or certificate of formation, as
amended, or bylaws, as amended, of such party or any applicable order, writ,
injunction, judgment, or degree of any court or governmental authority against
such party, or any material loan agreement, indenture, mortgage, bond, note,
contract or other agreement or instrument to which such party is a party or by
which it is bound, other than as would not reasonably be expected to have a
material adverse effect on such party's ability to perform, or its performance
of, its obligations hereunder.
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SECTION 11.2 Assignment. No Company nor the Administrative
Agent may assign this Agreement with respect to itself or any or all of the
Companies, nor may the Administrative Agent delegate to another the performance
of the Services with respect to any or all of the Companies, in each case
without the prior written consent of each affected party, which consent shall
not be unreasonably withheld or delayed so long as the applicable assignee
agrees to be bound by, be subject to and comply with the terms and conditions of
this Agreement; provided, however that each Company shall have the right to
assign its rights under this Agreement individually, or any two or more
Companies shall have the right to assign their rights under this Agreement in
the aggregate, for financing purposes. In connection with any financing, the
Administrative Agent shall execute a consent to assignment in customary form.
Nothing contained herein shall prevent any Company from pledging or mortgaging
all or any part of its assets or interests in connection with any financing.
SECTION 11.3 Governing Law; Exclusive Jurisdiction. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ACTIONS TO
ENFORCE OR INTERPRET THIS AGREEMENT OR TO RESOLVE DISPUTES HEREUNDER SHALL BE
BROUGHT IN THE UNITED STATES DISTRICT COURT IN NEW YORK, NEW YORK, OR, IF SUCH
COURT DOES NOT HAVE JURISDICTION OVER SUCH ACTION, IN THE SUPREME COURT OF THE
STATE OF NEW YORK IN NEW YORK COUNTY, NEW YORK, WHICH COURTS SHALL HAVE
EXCLUSIVE JURISDICTION WITH RESPECT TO SUCH MATTERS. FOR PURPOSES OF THE
FOREGOING, COMPANY AND THE ADMINISTRATIVE AGENT EACH HEREBY SUBMITS AND AGREES
TO THE JURISDICTION OF SUCH COURTS.
SECTION 11.4 Binding Effect. This Agreement and any extension
shall inure to the benefit of and be binding upon the Parties and their
respective permitted successors and assigns.
SECTION 11.5 Entire Agreement; Amendments. This Agreement
constitutes the entire agreement between the Administrative Agent and each
Company with respect to the subject matter covered hereby and supersedes any and
all prior negotiations, representations, agreements or understandings relating
hereto. This Agreement may be amended only by a writing signed by a duly
authorized representative of each affected party.
SECTION 11.6 Waivers. The Administrative Agent and any Company
may specifically waive any breach of this Agreement by the other, but no such
waiver shall be deemed to have been given unless such waiver is in writing,
signed by the waiving party and specifically designates the breach waived, nor
shall any such waiver constitute a continuing waiver of similar or other
breaches.
SECTION 11.7 Notices. All notices, requests, offers, reports
and other communications required or permitted to be made under this Agreement
shall be in writing, and shall be given by first class, registered or certified
mail, postage prepaid, or by hand-delivered telegram, or by telex or facsimile.
All notices shall be addressed as follows:
To Administrative Agent:
Calpine Administrative Services Company, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile No: (000)000-0000
Telephone No: (000)000-0000
10
With a copy to:
Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile No: (000)000-0000
Telephone No: (000)000-0000
To CalGen:
Calpine Generating Company, LLC
c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
To Finance Corp.:
CalGen Finance Corp.
c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
and
To each Subsidiary at its address set forth on
Appendix A attached hereto or, if applicable, a
Subsidiary's Joinder;
or at such other address as either party may designate from time to time in
writing by like notice to the other party. Notices shall be deemed duly given at
the time delivery is received at the address provided for above.
SECTION 11.8 No Third Party Benefits. Except with respect to
the rights of a lender or trustee (or as to either, its agent) pursuant to an
assignment for financing purposes as provided in Section 11.2 and for the rights
of Indemnitees under Article 9, this Agreement and each and every provision
thereof is for the exclusive benefit of each Company and Administrative Agent
and is not for the benefit of any third party.
SECTION 11.9 Title to Materials. Title to all materials,
equipment, supplies, consumables, spare parts and other items purchased or
obtained by the Administrative Agent for a Company on a Reimbursable Expense
basis shall pass immediately to and vest in Company upon the passage of title
from the vendor or supplier thereof.
SECTION 11.10 Partial Invalidity. If any term, provision,
covenant, or condition of this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, whether in its application
to one or more Companies or with respect to this Agreement as a whole, the rest
of this Agreement shall remain in full force and effect and in no way be
affected, impaired, or invalidated.
11
SECTION 11.11 Headings. The headings herein in this Agreement
are for reference only and shall not affect the construction of this Agreement.
SECTION 11.12 Counterparts. This Agreement may be executed in
counterparts, and any number of counterparts signed in the aggregate by the
parties hereto shall constitute a single original document.
SECTION 11.13 Separate Agreements. Each Company and the
Administrative Agent have agreed that this Agreement applies separately to each
Company, as well as to the Companies as a whole. In applying this Agreement,
"Company" shall be understood to mean each Company separately, unless the
context indicates otherwise (e.g. that all Companies are intended to be
included).
SECTION 11.14 Specific Performance. Each Company and the
Administrative Agent hereby acknowledge that money damages would not be a
sufficient remedy for any breach of this Agreement and that irreparable harm
would result if this Agreement were not specifically enforced. Therefore,
notwithstanding any other provision hereof, the rights and obligations of such
Company and the Administrative Agent under this Agreement shall be enforceable
by a decree of specific performance issued by any court of competent
jurisdiction and appropriate injunctive relief may be applied for and granted in
connection therewith. The right of such Company and the Administrative Agent to
specific performance hereunder shall be in addition to all other legal or
equitable remedies available to such part.
12
IN WITNESS WHEREOF, the parties hereto have caused this Master
Administrative Agent Agreement to be executed by their officers or partners
thereunto duly authorized as of the day and year first above written.
CALPINE ADMINISTRATIVE SERVICES CALPINE GENERATING COMPANY, LLC
COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxx BY: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name : XXXXXX XXXXXXX Name: XXXXX XXXX
Title: Authorized Signatory Title: Vice President
CALGEN FINANCE CORP. CALGEN EXPANSION COMPANY, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
BAYTOWN ENERGY CENTER, L.P. CALPINE BAYTOWN ENERGY CENTER, GP, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CALPINE BAYTOWN ENERGY CENTER LP, LLC BAYTOWN POWER GP, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
BAYTOWN POWER, XX XXXXXXXX ENERGY, LLC By:.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CHANNEL ENERGY CENTER, LP CALPINE CHANNEL ENERGY CENTER GP, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
Signature page to Master Administrative Agent Agreement
CHANNEL POWER GP, LLC CHANNEL POWER, LP
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
COLUMBIA ENERGY LLC
COLUMBIA ENERGY LLC CORPUS CHRISTI COGENERATION, LP
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
NUECES BAY ENERGY LLC CALPINE NORTHBROOK SOUTHCOAST
INVESTORS, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CALPINE CORPUS CHRISTI ENERGY GP, LLC CALPINE CORPUS CHRISTI ENERGY, LP
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
DECATUR ENERGY CENTER, LLC DELTA ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
FREESTONE POWER GENERATION LP CALPINE FREESTONE, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CPN FREESTONE, LLC CALPINE FREESTONE ENERGY GP, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
Signature page to Master Administrative Agent Agreement
CALPINE FREESTONE ENERGY, LP CALPINE POWER EQUIPMENT LP
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
GOLDENDALE ENERGY CENTER, LLC LOS MEDANOS ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
XXXXXX ENERGY CENTER, LLC PASTORIA ENERGY FACILITY L.L.C.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CALPINE PASTORIA HOLDINGS, LLC CALPINE XXXXX POWER, L.P.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CALPINE XXXXX POWER I, LLC CALPINE XXXXX POWER II, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
ZION ENERGY, LLC CALGEN EQUIPMENT FINANCE HOLDINGS, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CALGEN EQUIPMENT FINANCE COMPANY, LLC CALGEN PROJECT EQUIPMENT FINANCE
COMPANY ONE, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
Signature page to Master Administrative Agent Agreement
CALGEN PROJECT EQUIPMENT FINANCE CALGEN PROJECT EQUIPMENT FINANCE
COMPANY TWO, LLC COMPANY THREE, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
Signature page to Master Administrative Agent Agreement
APPENDIX A
SUBSIDIARIES
CALGEN EXPANSION COMPANY, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
BAYTOWN ENERGY CENTER, LP, a Delaware limited partnership
Facility Owner
Address: 0000 XX 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000)000-0000
Description: The Baytown facility is a nominal 742 MW natural gas-fired
combined cycle generating facility with an estimated peak
capacity of 830 MW. The facility consists of three Siemens
combustion turbines and three Nooter Xxxxxxx heat recovery
steam generators which supply steam to a single Toshiba steam
turbine. The facility supplies power and steam to Bayer
Corporation.
CALPINE BAYTOWN ENERGY CENTER GP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
CALPINE BAYTOWN ENERGY CENTER LP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
BAYTOWN POWER GP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile; (000) 000-0000
Telephone: (000)000-0000
BAYTOWN POWER, LP, a Delaware limited partnership
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
XXXXXXXX ENERGY LLC, a Delaware limited liability company
Facility Owner
Address: 0000 XX Xxxxxxx 00
Xxxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000)000-0000
Description: The Carville facility is a nominal 455 MW natural gas-fired
combined cycle generating facility with an approximate peak
capacity of 531 MW. The facility consists of two General
Electric combustion turbines and two Alstom heat recovery
steam generators which supply steam to a single Alstom steam
turbine. The facility supplies steam to Cos-Mar Corporation.
CHANNEL ENERGY CENTER, LP, a Delaware limited partnership
Facility Owner
Address: 00000 Xxxxxxxx Xxxxxx, XXX Xxxx 0
Xxxxxxxx, Xxxxx 00000
Telephone: (000)000-0000
Description: The Channel facility is a nominal 527 MW natural gas-fired
combined cycle generating facility. The facility consists of
two Siemens combustion turbines and two Nooter Xxxxxxx heat
recovery steam generators which supply steam to a single
Toshiba steam turbine. The facility supplies power and steam
to Lyondell-CITGO Refining, L.P.
CALPINE CHANNEL ENERGY CENTER GP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CALPINE CHANNEL ENERGY CENTER LP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CHANNEL POWER GP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CHANNEL POWER, LP, a Delaware limited partnership
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
2
COLUMBIA ENERGY LLC, a Delaware limited liability company
Facility Owner
Address: 000 Xxxxxxx Xxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Description: The Columbia facility is a nominal 464 MW natural gas-fired
combined cycle generating facility with an approximate peak
capacity of 641 MW. The facility consists of two General
Electric combustion turbines and two Nooter Xxxxxxx heat
recovery steam generators which supply steam to a single
Toshiba steam turbine. The facility supplies steam to
Xxxxxxx Chemical Company.
CORPUS CHRISTI COGENERATION LP, a Delaware limited partnership
Facility Owner
Address: 0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Description: The Corpus Christi facility is a nominal 414 MW natural
gas-fired combined cycle generating facility with an
approximate peak capacity of 537 MW. The facility consists of
two General Electric combustion turbines and two Alstom heat
recovery steam generators which supply steam to a single
Alstom steam turbine. The facility supplies power and steam to
CITGO Refining and Chemicals, L.P., Elementis Chrominum, L.P.
and Flint Hills Resources, L.P.
NUECES BAY ENERGY LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CALPINE NORTHBROOK SOUTHCOAST INVESTORS, LLC, a Delaware limited liability
company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CALPINE CORPUS CHRISTI ENERGY GP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CALPINE CORPUS CHRISTI ENERGY, LP, a Delaware limited partnership
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
3
DECATUR ENERGY CENTER, LLC, a Delaware limited liability company
Facility Owner
Address: 0000 Xxxxxxx 00 Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000)000-0000
Description: The Decatur facility is a nominal 692 MW natural gas-fired
combined cycle generating facility with an approximate peak
capacity of 838 MW. The facility consists of three Siemens
combustion turbines and three Nooter Xxxxxxx heat recovery
steam generators which supply steam to a single Toshiba steam
turbine. The facility supplies steam to Solutia Inc.
DELTA ENERGY CENTER, LLC, a Delaware limited liability company
Facility Owner
Address: 0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000)000-0000
Description: The Delta facility is a nominal 799 MW natural gas-fired
combined cycle generating facility with an estimated peak
capacity of 882 MW. The facility consists of three Siemens
combustion turbines and three Deltak heat recovery steam
generators which supply steam to a single Toshiba steam
turbine.
FREESTONE POWER GENERATION LP, a Texas limited partnership
Facility Owner
Address: 0000 XX 000
Xxxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Description: The Freestone facility is a nominal 1,022 MW natural gas-fired
combined cycle generating facility with an approximate peak
capacity of 1,022 MW. The facility consists of four General
Electric combustion turbines and four Nooter Xxxxxxx heat
recovery steam generators which supply steam to two General
Electric steam turbines.
CALPINE FREESTONE, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
CPN FREESTONE, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
4
CALPINE FREESTONE ENERGY GP, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
CALPINE FREESTONE ENERGY, LP, a Delaware limited partnership
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
CALPINE POWER EQUIPMENT LP, a Texas limited partnership
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
GOLDENDALE ENERGY CENTER, LLC
Facility Owner
Address: 000 Xxxxxxxxxx Xxxx Xxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000)000-0000
Description: The Goldendale facility will be a nominal 237 MW natural
gas-fired combined cycle power generating facility with an
estimated peak capacity of 271 MW. The facility will consist
of a single General Electric combustion turbine and a Hitachi
heat recoversy steam generator which supplies steam to a
single Hitachi steam turbine.
LOS MEDANOS ENERGY CENTER, LLC, a Delaware limited liability company
Facility Owner
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000)000-0000
Description: The Los Medanos facility is a nominal 497 MW natural gas-fired
combined cycle generating facility with an estimated peak
capacity of 566 MW. The facility consists of two General
Electric combustion turbines and two Nooter Xxxxxxx heat
recovery steam generators which supply steam to a single
General Electric steam turbine. The facility supplies power
and steam to USS-POSCO Industries and may supply power to Dow
Chemical Company.
5
XXXXXX ENERGY CENTER, LLC, a Delaware limited liability company
Facility Owner
Address: 0000 Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000)000-0000
Description: The Xxxxxx facility is a nominal 722 MW natural gas-fired
combined cycle generating facility with an approximate peak
capacity of 852 MW. The facility consists of three Siemens
combustion turbines and three Nooter Xxxxxxx heat recovery
steam generators which supply steam to two Toshiba steam
turbines. The facility supplies steam to BP Amoco Chemical
Company.
PASTORIA ENERGY FACILITY L.L.C., a Delaware limited liability company
Facility Owner
Address: 00000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxxxx 00000
Telephone: (000)000-0000
Description: The Pastoria facility will be a nominal 759 MW natural
gas-fired combined cycle generating facility with an estimated
peak capacity of 769 MW. The facility is being constructed in
two phases. Phase 1 consists of a single General Electric
combustion turbine and a Nooter Xxxxxxx heat recovery steam
generator which supplies a single General Electric steam
turbine. Phase 2 consists of two General Electric combustion
turbines and two Nooter Xxxxxxx heat recovery steam generators
which supply a single General Electric steam turbine.
CALPINE PASTORIA HOLDINGS, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
CAIPINE XXXXX POWER, L.P., a Delaware limited partnership
Facility Owner
Address: 00000 Xxxx 000xx Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
Description: The Oneta facility is a nominal 994 MW natural gas-fired
combined cycle generating facility with an approximate peak
capacity of 994 MW. The facility consists of four General
Electric combustion turbines and four Nooter Xxxxxxx heat
recovery steam generators which supply steam to two Toshiba
steam turbines.
CALPINE XXXXX POWER I, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
6
CALPINE XXXXX POWER II, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
ZION ENERGY LLC, a Delaware limited liability company
Facility Owner
Address: 0000 Xxxxx Xxxxxx
Xxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
Description: The Zion facility is a nominal 513 MW simple cycle peaking
facility with an estimated peak capacity of 513 MW. The
facility consists of three General Electric combustion
turbines. The facility generally runs on natural gas, but is
capable of running on oil.
CALGEN EQUIPMENT FINANCE HOLDINGS, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
Telephone: (000)000-0000
CALGEN EQUIPMENT FINANCE COMPANY, LLC, a Delaware limited liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
CALGEN PROJECT EQUIPMENT FINANCE COMPANY ONE, LLC, a Delaware limited liability
company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
CALGEN PROJECT EQUIPMENT FINANCE COMPANY TWO, LLC, a Delaware limited liability
company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
7
CALGEN PROJECT EQUIPMENT FINANCE COMPANY THREE, LLC, a delaware limited
liability company
Address: c/o Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000)000-0000
Telephone: (000)000-0000
8
APPENDIX B
FORM OF JOINDER
JOINDER AGREEMENT
This JOINDER AGREEMENT (the "Joinder"), dated as
of_____________, 200__, is entered into by and among CALPINE GENERATING COMPANY,
LLC, a Delaware limited liability company ("CalGen"),__________________________,
a_____________________ (the "Additional Subsidiary", and CALPINE ADMINISTRATIVE
SERVICES COMPANY, INC., a Delaware corporation, as the administrative agent (the
"Administrative Agent").
RECITALS
WHEREAS, the Additional Subsidiary is a direct or indirect,
wholly-owned subsidiary of CalGen[, and is the direct or indirect owner of a
gas-fired simple- or combined-cycle electric generation facility (an "Additional
Facility"): and
WHEREAS, in accordance with the terms of the Master
Administration Services Agreement, dated as of March 23, 2004 (the
"Administrative Services Agreement"), among CalGen, CalGen Finance Corp.
("Finance Corp."). the direct or indirect, wholly-owned subsidiaries of CalGen
from time to time party thereto (each a "Subsidiary" and, together with CalGen
and Finance Corp., the "Companies") and the Administrative Agent, the Additional
Subsidiary desires to join in and become a "Subsidiary" under the Administrative
Services Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and other valuable consideration, the parties hereto
agree as follows:
JOINDER
1. As of the date hereof, the Additional Subsidiary is
hereby joins in the Administrative Services Agreement as a Subsidiary
thereunder, and in furtherance thereof, the Additional Subsidiary expressly
agrees:
a. to be bound by all of the terms and provisions of the
Administrative Services Agreement as though the Additional Subsidiary
were an original party thereto and were included in the definition of
Subsidiary as used therein for all purposes thereunder; and
[b. the Additional Facility shall be included in the
definition of Facility as used in the Administrative Services Agreement
for all purposes thereunder.]
The Additional Subsidiary acknowledges receipt of a copy of the Administrative
Services Agreement. The Additional Subsidiary agrees and acknowledges that it
has read the Administrative Services Agreement and understands that by signing
this document, it shall assume all of the duties and obligations of a Subsidiary
thereunder.
2. Information Regarding Additional Facility. In
accordance with the Administrative Services Agreement, the Additional Subsidiary
is providing the following information regarding the Additional Facility:
a. Address of Facility. [PROVIDE ADDRESS]
The Additional Subsidiary agrees that such address is its address for
the receipt of notices under the Administrative Services Agreement.
b. Description of Facility. [PROVIDE DESCRIPTION]
3. Representations and Warranties. The Additional
Subsidiary hereby represents and warrants (a) it has the full power and
authority to execute, deliver and perform this Joinder and to carry out the
transactions contemplated hereby, (b) the execution and delivery by it of this
Joinder and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite corporate or other action, and this Joinder has been
duly executed and delivered by it, is enforceable against it in accordance with
the terms hereof, subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the enforcement of creditor's
rights generally and to general principles of equity; (c) no authorization,
consent, approval or order of, notice to, or registration, qualification,
declaration or filing with, any governmental authority, is required for the
execution, delivery and performance by it of this Joinder or the consummation by
it of the material transactions contemplated hereby, other than regulatory and
similar approvals needed for the operation of the Additional Facility, as
applicable, and (d) none of the execution, delivery and performance by it of
this Joinder, the compliance with the terms and provisions hereof, and the
consummation of the transactions contemplated hereby, conflicts or will conflict
with or result in a breach or violation of any of the terms, conditions, or
provisions of any law, governmental rule or regulation or the charter or
certificate of formation, as amended, or bylaws, as amended, of such party or
any applicable order, writ, injunction, judgment, or degree of any court or
governmental authority against such party, or any material loan agreement,
indenture, mortgage, bond, note, contract or other agreement or instrument to
which it is a party or by which it is bound, other than as would not reasonably
be expected to have a material adverse effect on its ability to perform, or its
performance of, its obligations hereunder.
4. Defined Terms. Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in the
Administrative Services Agreement.
5. Governing Law. THIS JOINDER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
6. Counterparts. This Agreement may be executed in
counterparts, and any number of counterparts signed in the aggregate by the
parties hereto shall constitute a single original document.
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IN WITNESS WHEREOF, the parties hereto have caused this Master
Administrative Agent Agreement to be executed by their officers or partners
thereunto duly authorized as of the day and year first above written.
[CALPINE ADMINISTRATIVE SERVICES CALPINE GENERATING COMPANY, LLC
COMPANY, INC.,]
By:_____________________________ By:______________________________
Name: Name:
Title: Title:
[ADDITIONAL SUBSIDIARY]
BY:_____________________________
Name:
Title:
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