EXHIBIT 1
Execution Copy
CALPINE GENERATING COMPANY, LLC
CALGEN FINANCE CORP.
$235,000,000 First Priority Secured Floating Rate Notes due 2009
$640,000,000 Second Priority Secured Floating Rate Notes due 2010
$680,000,000 Third Priority Secured Floating Rate Notes due 2011
$150,000,000 11 1/2% Third Priority Secured Notes due 2011
PURCHASE AGREEMENT
March 12, 2004
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Calpine Generating Company, LLC, a Delaware limited
liability company (the "COMPANY"), and CalGen Finance Corp. ("CALGEN FINANCE"),
a Delaware corporation and a wholly owned subsidiary of Calpine CalGen Holdings,
Inc. ("CALGEN HOLDINGS"), propose, subject to the terms and conditions stated
herein, to issue and sell to Xxxxxx Xxxxxxx & Co. Incorporated (the "INITIAL
PURCHASER") (i) an aggregate principal amount of $235,000,000 of their First
Priority Secured Floating Rate Notes due 2009 (the "FIRST PRIORITY NOTES"), (ii)
an aggregate principal amount of $640,000,000 of their Second Priority Secured
Floating Rate Notes due 2010 (the "SECOND PRIORITY NOTES"), (iii) an aggregate
principal amount of $680,000,000 of their Third Priority Secured Floating Rate
Notes due 2011 (the "THIRD PRIORITY FLOATING RATE NOTES") and (iv) an aggregate
principal amount of $150,000,000 of their 11.5% Third Priority Secured Notes due
2011 (the "THIRD PRIORITY FIXED RATE NOTES" and, together with the First
Priority Notes, the Second Priority Notes and Third Priority Floating Rate
Notes, the "NOTES") as set forth below. The First Priority Notes will be issued
pursuant to an Indenture (the "FIRST PRIORITY INDENTURE") to be dated as of the
Closing Date (as defined in Section 3), among the Company, CalGen Finance, the
Guarantors (as defined below) and Wilmington Trust FSB, as trustee (the
"TRUSTEE"). The Second Priority Notes will be issued pursuant to an Indenture
(the "SECOND PRIORITY INDENTURE") to be dated as of the Closing Date, among the
Company, CalGen Finance, the Guarantors and the Trustee. The Third Priority
Floating Rate Notes and the Third Priority Fixed Rate Notes will be issued
pursuant to an Indenture (the "THIRD PRIORITY INDENTURE") to be dated as of the
Closing Date, among the Company, CalGen Finance, the Guarantors and the Trustee.
The First Priority Indenture, the Second Priority Indenture and the Third
Priority Indenture are collectively referred to herein as the "INDENTURES." The
Company's and CalGen Finance's obligations under the Notes, including the
payment, when due and payable, of principal, interest and premium, if any,
thereunder will be unconditionally guaranteed (the "GUARANTEES" and, together
with the Notes, the "SECURITIES") by all of the entities listed on Exhibit A
hereto (the "GUARANTORS") and all future Subsidiaries of the Company (other than
CalGen Finance and the Excluded Subsidiary). CalGen Finance will be a wholly
owned subsidiary of the Company on the Closing Date. Capitalized terms used but
not defined herein shall have
the meanings assigned to them in the Description of Notes section of the
Offering Memorandum (as defined below). As used herein, (a) "CALGEN COMPANIES"
shall mean the Company, CalGen Finance, the Guarantors and all other
Subsidiaries of the Company, (b) "ISSUING COMPANIES" shall mean the Company,
CalGen Finance and the Guarantors, (c) "PLEDGING COMPANIES" shall mean CalGen
Holdings, the Company and the Guarantors, (d) "TRANSACTION COMPANIES" shall mean
CalGen Holdings, the Company, CalGen Finance, the Guarantors and all other
Subsidiaries of the Company, (e) "CALGEN SUBSIDIARIES" shall mean all
Subsidiaries of the Company except for CalGen Finance, and (f) "OPERATIVE
DOCUMENTS" shall mean this Agreement, the Indentures, the Registration Rights
Agreement, the Security Documents, the Term Loan Agreements, the Revolving Loan
Agreement, the Major Project Documents and the documents listed on Schedule B
hereto (the "THIRD PARTY PROJECT DOCUMENTS").
The Company, simultaneously with the sale of the Securities, proposes to
borrow an aggregate amount of $600,000,000 in aggregate principal amount of
super priority secured institutional term loans due 2009 (the "FIRST PRIORITY
TERM LOANS") from lenders pursuant to a credit and guaranty agreement (the
"FIRST PRIORITY TERM LOAN AGREEMENT") among the Company, the guarantors named
thereunder, the lenders party thereto, and Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the administrative agent, and $100,000,000 in aggregate principal amount of
senior secured institutional term loans due 2010 (the "SECOND PRIORITY TERM
LOANS") from lenders pursuant to a credit and guaranty agreement (the "SECOND
PRIORITY TERM LOAN AGREEMENT") among the Company, the guarantors named
thereunder, the lenders party thereto, and Xxxxxx Xxxxxxx Senior Funding, Inc.,
as the administrative agent. The First Priority Term Loans and the Second
Priority Term Loans are together referred to as the "TERM LOANS." The First
Priority Term Loan Agreement and the Second Priority Term Loan Agreement are
together referred to as the "TERM LOAN AGREEMENTS." Xxxxxx Xxxxxxx Senior
Funding, Inc., as administrative agent under both Term Loan Agreements is
referred to herein as the "TERM LOAN ADMINISTRATIVE AGENT." The Company also
proposes to secure a commitment from lenders to provide additional funds from
time to time on a revolving basis in an aggregate principal amount not to exceed
$200,000,000 in aggregate principal amount of revolving loans and letters of
credit (such revolving loans and letters of credit being referred to
collectively as the "REVOLVING CREDIT LOANS") pursuant to an amended and
restated credit agreement (the "REVOLVING LOAN AGREEMENT") among the Company,
the guarantors named thereunder, the lenders party thereto, The Bank of Nova
Scotia, as the administrative agent (the "REVOLVING LOAN ADMINISTRATIVE AGENT"),
and the other arrangers and agents thereunder (it being understood and agreed
that neither The Bank of Nova Scotia nor any of its affiliates is, as of the
date of this Agreement, obligated to enter into the Revolving Loan Agreement or
to provide any funding thereunder). The Guarantors will also guarantee the
Company's obligations under the Revolving Credit Loans, the First Priority Term
Loans and the Second Priority Term Loans (the "CREDIT GUARANTORS")
(collectively, the "CREDIT GUARANTEES"). The net proceeds of the Term Loans and
the sale of the Securities will be used to repay amounts outstanding under the
Credit Agreement, dated as of October 16, 2000 (as amended, the "EXISTING SENIOR
SECURED CREDIT FACILITY"), among the Company (formerly Calpine Construction
Finance Company II, LLC), the lenders party thereto, Credit Suisse First Boston,
as administrative agent (the "EXISTING CREDIT ADMINISTRATIVE AGENT"), The Bank
of Nova Scotia, as lead arranger, co-syndication agent and bookrunner, and the
other arrangers and agents thereunder, and to pay the fees and expenses incurred
with respect to such repayment. The proceeds of the Revolving Credit Loans will
be used for the general corporate purposes of the Company.
The Pledging Companies have agreed to secure the Notes, the Term Loans,
the Revolving Credit Loans and all future Priority Lien Obligations and Parity
Lien Obligations by granting to Wilmington Trust Company, as collateral agent
(the "COLLATERAL AGENT"), for the benefit of the holders of the Notes, the Term
Loans, the Revolving Credit Loans, the Term Loan Administrative Agent, the
Revolving Loan Administrative Agent and the holders of any other future Priority
Lien Obligations or Parity Lien Obligations (collectively, the "SECURED
PARTIES") a lien on all the assets (other than, in some cases, certain excluded
assets identified in the Term Loan Agreements and the Revolving Loan) of the
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Company and the Guarantors and a pledge of the equity interests in the Company
and CalGen Expansion Company, LLC ("Expansion Co") (collectively, the
"COLLATERAL"), in each case as evidenced by a Security Agreement, to be dated as
of the Closing Date, among the Company, the CalGen Companies and the Collateral
Agent, a Membership Interest Pledge Agreement, to be dated as of the Closing
Date, among the Company, Expansion Co and the Collateral Agent (the "EXPANSION
CO MEMBERSHIP INTEREST PLEDGE AGREEMENT"), a Membership Interest Pledge
Agreement, to be dated as of the Closing Date, between CalGen Holdings and the
Collateral Agent (the "MEMBERSHIP INTEREST PLEDGE AGREEMENT"), the Collateral
Account Control Agreement, to be dated as of the Closing Date, among the
Company, the Collateral Agent and an institution reasonably acceptable to the
Initial Purchaser, as depository agent (the "CONTROL AGREEMENT"), the mortgages
or deeds of trust listed on Schedule C hereto (the "MORTGAGES") and a Collateral
Trust Agreement, to be dated as of the Closing Date, among the Pledging
Companies, the Trustee, the Term Loan Administrative Agent, the Revolving Loan
Administrative Agent and the Collateral Agent (the "COLLATERAL TRUST AGREEMENT"
and, together with the Security Agreement, the Expansion Co Membership Interest
Pledge Agreement, the Membership Interest Pledge Agreement, the Control
Agreement and the Mortgages, the "SECURITY DOCUMENTS"). Pursuant to the
Collateral Trust Agreement, the security interest in the Collateral securing the
Parity Lien Obligations will rank immediately junior in priority to the security
interest in the Collateral securing any Priority Lien Obligations. The Priority
Lien Obligations and the Parity Lien Obligations are collectively referred to
herein as the "SECURED OBLIGATIONS."
The Company, CalGen Finance and each of the Guarantors agree with the
Initial Purchaser as follows:
2. Representations and Warranties of the Issuing Companies. The Issuing
Companies represent and warrant to, and agree with, the Initial Purchaser that:
(a) The offering memorandum to be dated the date on which the
Initial Purchaser receive the Audited Financials (as defined below) (such
offering memorandum, as amended or supplemented, the "OFFERING MEMORANDUM")
relating to the Securities to be offered by the Initial Purchaser has been
prepared by the Company and CalGen Finance and has been or will be delivered to
the Initial Purchaser at such place or places as it has directed or may direct,
at or prior to such time as the Initial Purchaser have requested or may request.
Such Offering Memorandum, together with any other document approved by the
Company for use in connection with the contemplated sale or resale of the
Securities, are hereinafter collectively referred to as the "OFFERING
DOCUMENTS." The Offering Documents did not and will not, as of their respective
dates, include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Documents based upon written information furnished to the Company by the Initial
Purchaser specifically for use therein.
(b) The Company has been duly formed and is an existing limited
liability company in good standing under the laws of the State of Delaware, with
power and authority under such laws to own and lease its properties and conduct
its,business as described in the Offering Documents; and the Company is duly
qualified to do business as a foreign limited liability company, and is in good
standing in, all other jurisdictions in which its ownership or leasing of
property or the conduct of its business requires such qualification.
(c) CalGen Finance has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Offering Documents; and CalGen Finance is duly qualified to do
business as a foreign corporation, and is in good standing in, all other
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jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification; all of the issued and outstanding capital
stock of CalGen Finance has been duly authorized and validly issued and is fully
paid and nonassessable as of the date hereof and will be as of the Closing Date;
the capital stock of CalGen Finance is owned by CalGen Holdings free from liens,
encumbrances and defects; and neither the Company nor CalGen Finance is a
general partner in any partnership.
(d) Each Subsidiary of the Company (x) other than those
Subsidiaries specified in clause (y) of this subparagraph has been duly
incorporated and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with the corporate power and authority to
own or lease its properties and conduct its business as described in the
Offering Documents; or (y) that is not a corporation is a general or limited
partnership or a limited liability company, has been duly formed and is validly
existing as a general or limited partnership or limited liability company, as
the case may be, in good standing under the laws of the jurisdiction of its
formation, and has full partnership or limited liability company power and
authority, as the case may be, to own or lease its properties and conduct its
business as described in the Offering Documents; each Subsidiary of the Company
is duly qualified to do business as a foreign corporation, general or limited
partnership or limited liability company, as the case may be, and is in good
standing in, all other jurisdictions in which its ownership or leasing of
property or the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of or other equity interest in each
Subsidiary of the Company has been duly authorized and validly issued and is
fully paid and nonassessable; the capital stock of or other equity interest in
each Subsidiary owned by the Company, directly or through Subsidiaries, is owned
free from liens, encumbrances and defects except for those to be terminated at
the Closing Date with respect to the Existing Senior Secured Credit Facility;
the capital structure of CalGen Holdings and the CalGen Companies is accurately
set forth on Schedule D hereto.
(e) Each of the Indentures has been duly authorized and conforms
to the description thereof contained in the Offering Memorandum; the Securities
and the Exchange Securities (as defined below) have been duly authorized, and
when the Securities are delivered and paid for pursuant to this Agreement on the
Closing Date, each of the Indentures will have been duly executed and delivered,
such Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the Offering
Memorandum and the Indentures and such Securities will constitute valid and
legally binding obligations of the Issuing Companies, as applicable, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(f) The registration rights agreement to be dated as of the
Closing Date among the Issuing Companies on the one hand and the Initial
Purchaser on the other (the "REGISTRATION RIGHTS AGREEMENT") has been duly
authorized by the Issuing Companies, and assuming due authorization, execution
and delivery by the Initial Purchaser, upon its execution and delivery by the
Issuing Companies will constitute a valid and legally binding obligation of the
Issuing Companies, enforceable against the Issuing Companies in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles and except
that the enforceability of the rights to indemnity and contribution contained
therein may be limited by federal or state securities laws or by principles of
public policy. The Registration Rights Agreement, when executed and delivered,
will conform in all material respects to the description thereof contained in
the Offering Memorandum. Pursuant to the Registration Rights Agreement, the
Issuing Companies will agree to either (i) file with the Securities and Exchange
Commission (the "COMMISSION"), under the circumstances set forth therein, (A) a
registration statement under the Securities Act with respect to an offer to
exchange the Securities for a new series of debt securities of such companies
(the "EXCHANGE SECURITIES") having identical terms as the
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Securities except that the Exchange Securities will be registered pursuant to an
effective Registration Statement under the Securities Act (the "EXCHANGE
OFFER"), and (B) to the extent required by the Registration Rights Agreement, a
shelf registration statement pursuant to Rule 415 under the Securities Act
relating to the resale by certain holders of the Securities, and to use all
commercially reasonable efforts to cause such registration statements to be
declared effective, or (ii) pay Special Interest to the holders of Transfer
Restricted Subsidiaries in accordance with the terms thereof.
(g) Each of the Security Documents to which any Pledging Company
is a party has been duly authorized by such Pledging Company and, when executed
and delivered, will conform in all material respects to the description thereof
contained in the Offering Memorandum. Each of the Security Documents, when
validly executed and delivered by the applicable Pledging Company, will
constitute a valid and legally binding obligation of such Pledging Company and
will be enforceable against such Pledging Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(h) Each of the Term Loan Agreements and the Revolving Loan
Agreement has been duly authorized by the Company and, when executed and
delivered, will conform in all material respects to the description thereof
contained in the Offering Memorandum. Each of the Term Loan Agreements and the
Revolving Loan Agreement, when validly executed and delivered by the Company,
will constitute a valid and legally binding obligation of the Company and will
be enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(i) Each Credit Guarantee has been duly authorized by the
applicable Credit Guarantor and, when executed and delivered, will conform in
all material respects to the description thereof contained in the Offering
Memorandum. Each Credit Guarantee, when validly executed and delivered by the
applicable Credit Guarantor, will constitute a valid and legally binding
obligation of such Credit Guarantor and will be enforceable against such Credit
Guarantor in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(j) Each of the CalGen Companies has authorized each Major Project
Document and each Third Party Project Document to which it is a party and, when
executed and delivered (to the extent not executed and delivered as of the date
hereof), each such Major Project Document and Third Party Project Document will
conform in all material respects to the description thereof contained in the
Offering Memorandum. Each Major Project Document and Third Party Project
Document, when validly executed and delivered by the applicable CalGen Company,
will constitute a valid and legally binding obligation of such CalGen Company,
as applicable, and will be enforceable against such CalGen Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(k) When executed and delivered to the Collateral Agent at the
Closing Date, (i) each Security Document will, to the extent contemplated
thereby, grant and create for the benefit of the Parity Secured Parties as
security for all Parity Lien Obligations, a valid security interest in the
personal property Collateral defined in each of such instruments to the extent
contemplated thereby, and (ii) each Mortgage will grant and create, in favor of
the Collateral Agent for the benefit of the Parity Secured Parties as security
for all of the Parity Lien Obligations, a valid mortgage lien and/or security
interest in the Collateral defined in each of such instruments to the extent
contemplated thereby. At the Closing
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Date, (i) all pledged Collateral will be represented by certificated securities
and (ii) all such certificated securities and all promissory notes and other
instruments then evidencing or representing any Collateral will be delivered to
the Collateral Agent in pledge for the benefit of the Secured Parties as
security for all of the Secured Obligations, duly endorsed by an effective
endorsement.
(l) At the Closing Date, the representations and warranties
contained in the Security Documents will be true and correct in all respects.
(m) Except as disclosed in the Offering Documents, there are no
contracts, agreements or understandings between any of the CalGen Companies and
any person that would give rise to a valid claim against any of the CalGen
Companies or the Initial Purchaser for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(n) Except as provided for in this Agreement, there are no
contracts, agreements or understandings between any of the Issuing Companies and
any person granting such person the right to require any of the Issuing
Companies to file a registration statement under the Securities Act with respect
to any securities of any of the Issuing Companies owned or to be owned by such
person or to require any of the Issuing Companies to include such securities
with any other securities being registered pursuant to any other registration
statement filed by any of the Issuing Companies under the Securities Act.
(o) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Operative Documents or
otherwise in connection with the issuance and sale of the Securities by the
Issuing Companies or the grant and perfection of the security interests in the
Collateral pursuant to the Security Documents, except (i) such consents,
approvals, authorizations and orders as have already been obtained, (ii) filings
required to perfect the Collateral Agent's security interests granted pursuant
to the Security Documents, (iii) such consents, approvals, authorizations and
orders as may be required under state securities or blue sky laws and (iv) such
other consents approvals, authorizations and orders as would not, in the
aggregate, have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the CalGen Companies taken as a
whole or materially affect the aggregate value of the Collateral (any such
event, a "MATERIAL ADVERSE EFFECT").
(p) The execution, delivery and performance of the Operative
Documents by each Transaction Company party thereto, as applicable, the issuance
and sale of the Securities by the Issuing Companies, the grant and perfection of
the security interests in the Collateral pursuant to the Security Documents,
compliance with the terms and provisions of each of the foregoing by the
Transaction Companies, as applicable, and the consummation by such Transaction
Companies of the transactions contemplated herein and therein will not result in
a breach or violation of any of the terms and provisions of, or conflict with or
constitute a default under, or result in the imposition or creation of (or the
obligation to create or impose) a Lien (other than in favor of the Secured
Parties) under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over any
of the Transaction Companies or any of their properties, or any agreement or
instrument to which any of the Transaction Companies is a party or by which any
of the Transaction Companies is bound or to which any of the properties of any
of the Transaction Companies is subject, or the organizational documents of any
of the Transaction Companies, except in each case as would not have a Material
Adverse Effect, and the Issuing Companies have full power and authority to
authorize, issue and sell the Securities as contemplated by this Agreement.
(q) This Agreement has been duly authorized, executed and
delivered by the Issuing Companies.
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(r) Except as disclosed in the Offering Documents and/or the
Closing Date Mortgage Policies (as defined below), the Company and each of the
Guarantors has good and marketable title to all real properties and good title
to all other properties and assets owned by it, in each case except for
Permitted Liens, free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to be made
thereof by it; and, except for Permitted Liens or as disclosed in the Offering
Documents and/or the Closing Date Mortgage Policies, the Company and each of the
Guarantors holds any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use made or to be made thereof by it No Financing Statements (as defined below)
in respect of any property or assets of any of the Pledging Companies will be on
file in favor of any person other than those in respect of Permitted Liens and
those to be terminated at the Closing Date with respect to the Existing Senior
Secured Credit Facility, and, solely in the case of CalGen Holdings, those in
respect of property or assets not constituting Collateral.
(s) Each of the CalGen Companies possesses adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it and has not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to such CalGen
Company, would individually or in the aggregate have a Material Adverse Effect.
(t) No labor dispute with the employees of any of the CalGen
Companies exists or, to the knowledge of the Company, is imminent that might
have a Material Adverse Effect.
(u) Each of the CalGen Companies owns, possesses or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by it, or presently employed by it, and has
not received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if determined
adversely to such CalGen Company, would individually or in the aggregate have a
Material Adverse Effect.
(v) Except as disclosed in the Offering Memorandum, none of the
CalGen Companies is in violation of any statute, rule, regulation or decision or
order of any governmental agency or body or any court domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or
operates any real property contaminated with any substance that is subject to
any Environmental Laws, is liable for any off-site disposal or contamination
pursuant to any Environmental Laws, or is subject to any claim relating to any
Environmental Laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and the Company
is not aware of any pending investigation which might lead to such a claim.
(w) Except as disclosed in the Offering Memorandum, there are no
pending actions, suits or proceedings against any of the Transaction Companies
or any of their respective properties that, if determined adversely to such
Transaction Companies, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of such
Transaction Companies to perform its or their obligations under, or contemplated
by, the Operative Documents, in each case to which such Transaction Company is a
party, or which are otherwise material in the context of the sale of the
Securities; and to the knowledge of the Company, no such actions, suits or
proceedings are threatened or contemplated.
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(x) The financial information included in the Offering Memorandum
presents fairly the financial position of the Company and its Subsidiaries on a
combined or consolidated basis, as the case may be, as of the dates shown and
their results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Documents, such financial information has
been prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis.
(y) The statistical and market-related data (other than
market-related data and statistical data provided by the Company) included in
the Offering Memorandum is based on or derived from sources which the Company
believes to be reliable and accurate, it being understood, however, that the
Company has conducted no independent investigation of the accuracy thereof.
(z) Except as disclosed in the Offering Memorandum, since the date
of the audited financial statements delivered pursuant to Section 6(q) of this
Agreement there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Calgen Companies taken as a whole, and, except as disclosed in or contemplated
by the Offering Memorandum, there has been no change in the equity interests in
or long-term debt of any of the Gal Gen Companies and no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its equity interests.
(aa) None of the CalGen Companies is an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT"); none of the
CalGen Companies is or, after giving effect to the offering, the sale of the
Securities and the application of the proceeds thereof as described in the
Offering Documents, and the consummation of the transactions contemplated by the
Operative Documents will be an "investment company" as defined in the Investment
Company Act of 1940.
(bb) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as any other securities that are
listed on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(cc) The offer and sale of the Securities by the Company, CalGen
Finance and the Guarantors to the Initial Purchaser in the manner contemplated
by this Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof and Rule 144A thereunder ("RULE
144A") and it is not necessary to qualify an indenture in respect of the
Securities under the Trust Indenture Act.
(dd) Neither the Company nor any of its Affiliates, nor any person
acting on behalf of any of the foregoing (i) has, within the six-month period
prior to the date hereof (except for the Company's proposed offering of up to
$1.050 million of senior secured notes pursuant to a preliminary offering
memorandum, dated February 9, 2004, it being understood that such preliminary
offering memorandum was distributed in connection with this offering), offered
or sold in the United States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act) the Securities or any security of the
same class or series as the Securities or (ii) has offered or will offer or sell
the Securities in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities
Act. None of the Issuing Companies has entered or will enter into any
contractual arrangement with respect to the distribution of the Securities
except for this Agreement. The Issuing Companies will take reasonable
precautions designed to insure that any offer or sale, direct or
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indirect, in the United States or to any U.S. person of any Securities or any
substantially similar security issued by any of the Issuing Companies within six
months subsequent to the date on which the distribution of the Securities has
been completed (as notified to the Company by the Initial Purchaser), is made
under restrictions and other circumstances reasonably designed not to affect the
status of the offer and sale of the Securities in the United States and to U.S.
persons contemplated by this Agreement as transactions exempt from the
registration provisions of the Securities Act.
(ee) None of the CalGen Companies or any "subsidiary company," as
that term is defined in the Public Utility Holding Company Act of 1935
("PUHCA"), of the CalGen Companies is, or after giving effect to the issuance
and sale of the Securities, will be, subject to regulation (i) as a "holding
company," a "subsidiary company" of a holding company or a "public-utility
company," as those terms are defined in PUHCA; (ii) under the Federal Power Act,
as amended ("FPA"), other than (A) as an "exempt wholesale generator" ("EWG"),
as that term is defined in PUHCA, that is subject to regulation as a "Public
utility" under the FPA, other than as described in the Offering Documents, or
(B) as a "qualifying facility" ("QF") under the Public Utility Regulatory
Policies Act of 1978, as amended ("PURPA"), as contemplated by 18 C.F.R. Section
292.601(c); or (iii) under any state law or regulation with respect to rates or
the financial or organizational regulation of electric utilities, other than,
with respect to CalGen Companies that are QFs, as contemplated by 18 C.F.R.
Section 292.602(c).
(ff) Other than as described in the Offering Documents, each of the
power generation projects in which the CalGen Companies listed on Schedule C1
have an interest meets the requirements under PURPA and the regulations of the
Federal Energy Regulatory Commission ("FERC") promulgated thereunder, as amended
from time to time, necessary to be a "qualifying cogeneration facility" and/or a
"qualifying small power generation production facility."
(gg) Each of the CalGen Companies listed on Schedule C2 hereto (i)
own and/or operate Eligible Facilities within the meaning of Section 32 of
PUHCA, and each such CalGen Company has received a determination from the FERC,
not subject to any pending challenge or appeal, that it is an EWG, within the
meaning of Section 32 of PUHCA; and (ii) other than as described in the Offering
Documents, has validly issued orders from the FERC, not subject to any pending
challenge, investigation, or proceeding (other than the pending petition for
rehearing of the FERC's Order issued in its generic proceeding initiated in
Docket No. EL01-118-000), (A) authorizing such CalGen Company to engage in
wholesale sales of electricity, ancillary services and, to the extent permitted
under its market-based rate tariff, other services at market-based rates, and
(B) granting such waivers and blanket authorizations as are customarily granted
to entities with market-based rate authority; with respect to each such CalGen
Company, the FERC has not imposed any rate caps or mitigation measures other
than rate caps and mitigation measures generally applicable to similarly
situated marketers or generators selling electricity, ancillary services or
other services at wholesale in the geographic market where such CalGen Company
conducts its business.
(hh) Each of the CalGen Companies that is participating in the
Texas wholesale electric market has registered with the Texas Public Utilities
Commission ("TPUC"), and the TPUC has not imposed on any such CalGen Company any
specific rate cap or mitigation measures.
(ii) Other than as described in the Offering Documents, there are
no pending complaints filed with the FERC seeking abrogation or modification of
a contract for the sale of power by the CalGen Companies.
(jj) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a
9
violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U, and X of the Board
of Governors of the Federal Reserve System.
(kk) Prior to the date hereof, neither the Company nor any of its
Affiliates has taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Issuing Companies in connection
with the offering of the Securities.
(ii) None of the Issuing Companies is in violation of its
organizational documents or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other material agreement or instrument
to which it is a party or by which it or any of its properties may be bound.
(mm) The statements set forth in the Offering Memorandum under the
captions "Business - Power Generation"," Business - Purchase of Gas and Sale of
Power" "Business - Operation of Our Facilities", "Business - Project
Construction", "Business - General Administrative Matters" "Description of New
Term Loans," "Description of New Senior Secured Revolving Credit Facility" and
"Description of Notes", insofar as they purport to describe the provisions of
the documents referred to therein, are accurate, complete and fair in all
material respects.
(nn) The description of the Collateral set forth in the Offering
Memorandum under the caption "Description of Notes--Security" is accurate and
complete in all material respects.
(oo) PricewaterhouseCoopers LLP, who will have certified certain
financial statements of the Company and its Subsidiaries on or prior to the
Closing Date, is an independent public accountant as required by the Securities
Act and the rules and regulations of the Commission thereunder.
(pp) The present fair saleable value of the assets of each of the
CalGen Companies exceeds the amount required to pay the probable liability on
its existing debts, respectively (whether matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent), as they become absolute and
matured, and as a result of the consummation of the transactions contemplated
herein and in the Offering Memorandum, will continue to exceed such amount.
(qq) Each of the CalGen Companies does not, and, as a result of the
consummation of the transactions contemplated herein and in the Offering
Memorandum, will not, have unreasonably small capital for it to carry on its
business as proposed to be conducted.
(rr) None of the CalGen Companies is incurring obligations or
making transfers under any evidence of indebtedness with the intent to hinder,
delay or defraud any entity to which it is or will become indebted.
3. Purchase, Sale and Delivery of Securities. Subject to the terms and
conditions herein set forth, the Issuing Companies agree to issue and sell to
the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
CalGen Companies, at a purchase price of $1,660,800,000.00 for all of the
Securities. Upon purchase by the Initial Purchaser of the Securities, the
Initial Purchaser proposes to offer the Securities for sale upon the terms and
conditions set forth in the Offering Documents.
The Issuing Companies will deliver against payment of the purchase price
the Securities in the form of one or more global Securities in definitive form
(the "GLOBAL SECURITIES") deposited by or on behalf of the Issuing Companies
with The Depository Trust Company ("DTC") and registered in the
10
name of Cede & Co., as nominee for DTC. Interests in any Global Securities will
be held only in book-entry form through DTC, except in the limited circumstances
that are described in the Offering Documents. Payment for the Securities shall
be made by the Initial Purchaser in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the
Initial Purchaser drawn to the order of Calpine Generating Company, LLC at the
office of Xxxxxxxxx & Xxxxxxx, 0000 Xxxxxx xx Xxxxxxxx, Xxx Xxxx, XX 00000, at
9:00 A.M. (New York time), on March 23,2004, or at such other time thereafter as
the Initial Purchaser and the Company may agree upon in writing, such time being
herein referred to as the "CLOSING DATE," against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Securities.
The Global Securities will be made available for checking at the above office of
Xxxxxxxxx & Xxxxxxx (or such other location as the Initial Purchaser may direct)
at least 24 hours prior to the Closing Date.
4. Representations by Initial Purchaser; Resale by Initial Purchaser.
Upon purchase from the Issuing Companies of the Securities, the Initial
Purchaser proposes to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Memorandum and the
Initial Purchaser hereby represents and warrants to and agrees with the Issuing
Companies that:
(a) It will offer and sell the Securities only (i) to persons who
it reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A and (ii) through its selling agents, outside the
United States, to non-U.S. persons in reliance on Regulation S under the
Securities Act;
(b) It is an "accredited investor" within the meaning of Rule 501
under the Securities Act;
(c) It acknowledges that the Securities have not been registered
under the Securities Act and may not be sold within the United States except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act; and
(d) It will not offer or sell the Securities by any form of
general solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Securities Act.
5. Certain Agreements of the Issuing Companies. The Issuing Companies
agree with the Initial Purchaser that:
(a) The Company will advise the Initial Purchaser promptly of any
proposal to amend or supplement the Offering Documents and will not effect such
amendment or supplementation without the Initial Purchaser's consent, which
consent shall not be unreasonably withheld. If, at any time prior to the
completion of the resale of the Securities by the Initial Purchaser, any event
occurs as a result of which the Offering Memorandum as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, the
Company promptly will notify the Initial Purchaser of such event and promptly
will prepare, at its own expense, an amendment or supplement which will correct
such statement or omission or effect such compliance. Neither the Initial
Purchaser's consent to, nor the Initial Purchaser's delivery to offerees or
investors of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(b) The Company will furnish to the Initial Purchaser copies of
the Offering Documents and all amendments and supplements to such documents, in
each case as soon as available
11
and in such quantities as the Initial Purchaser requests, and the Company will
furnish to the Initial Purchaser on the date on which the Initial Purchaser also
receives the Audited Financials from the independent accountants, three copies
of the Offering Memorandum signed by a duly authorized officer of the Company,
one of which will include the independent accountants' reports therein manually
signed by such independent accountants. At any time any of the Issuing Companies
are not subject to Section 13 or 15(d) of the Exchange Act, the Issuing
Companies will promptly furnish or cause to be furnished to the Initial
Purchaser and, upon request of Holders and prospective purchasers of the
Securities, to such Holders and purchasers, copies of the information required
to be delivered to Holders and prospective purchasers of the Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto)
in order to permit compliance with Rule 144A in connection with resales by such
Holders of the Securities. The Company will pay the expenses of printing and
distributing to the Initial Purchaser all such documents.
(c) The Issuing Companies will arrange for the qualification of
the Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Initial Purchaser
designate and will continue such qualifications in effect so long as required
for the resale of the Securities by the Initial Purchaser, provided that none of
the Issuing Companies will be required to qualify as a foreign organization or
to file a general consent to service of process in any such state.
(d) During a period of two years from the date of the Offering
Memorandum, the Company will furnish to the Initial Purchaser, the periodic
reports, financial statements and other financial information required to be
provided to the trustee pursuant to the Indentures or such other information
concerning any of the CalGen Companies reasonably requested by the Initial
Purchaser, unless such periodic reports, financial statements, financial
information and other information are otherwise available on the Commission's
Electronic Data Gathering, Analysis and Retrieval System or similar system.
(e) During the period of two years after the Closing Date, the
Issuing Companies will, upon request, furnish to the Initial Purchaser and any
holder of Securities a copy of the restrictions on transfer applicable to the
Securities.
(f) During the period of two years after the Closing Date, none of
the Issuing Companies will, or will permit any of their respective Affiliates
(as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been reacquired by it.
(g) During the period of two years after the Closing Date, none of
the Issuing Companies will be or become an open-end investment company, unit
investment trust or face amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act of 1940.
(h) The Company will pay all reasonable expenses incident to the
performance of its, CalGen Finance's and each of the Guarantors' obligations
under this Agreement, including (i) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indentures and the Securities; (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Securities, the preparation and printing of this Agreement, the
Registration Rights Agreement, the Securities, the Exchange Securities, the
Offering Documents and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the Securities;
(iii) the cost of qualifying the Securities for trading in The Portal(SM)"
Market ("PORTAL") of the NASDAQ Stock Market, Inc. and any expenses incidental
thereto; (iv) any expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Securities for sale under the
laws of such
12
jurisdictions in the United States and Canada as the Initial Purchaser
designates and the printing of memoranda relating thereto; (v) any fees charged
by investment rating agencies for the rating of the Securities; (vi) expenses
incurred in distributing Offering Documents (including any amendments and
supplements thereto) to the Initial Purchaser, (vii) expenses associated with
the creation and perfection of security interests and associated documents,
including, without limitation, filing fees and the fees and disbursements
incurred in connection with the Security Documents and all Financing Statements
(as defined below); (viii) fifty percent (50%) of the reasonable fees and
expenses of Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchaser, incurred in
connection with the issuance and sale of the Securities and borrowings under the
Company's Term Loan Agreements; (ix) the fees and expenses of the Collateral
Agent and any agent of the Collateral Agent and the fees and expenses of counsel
for the Collateral Agent in connection with the Security Documents and the
Collateral; and (x) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section 5. The Company will reimburse the Initial Purchaser for all travel
expenses of the Initial Purchaser and the Company's officers and employees and
any other expenses of the Initial Purchaser and the Company in connection with
attending or hosting meetings with prospective purchasers of the Securities (it
being understood and agreed by the Company and the Initial Purchaser that the
total amount of such travel and other expenses of the Initial Purchaser is
zero).
(i) In connection with the offering, until the Initial Purchaser
shall have notified the Company of the completion of the resale of the
Securities, neither the Company nor any of its Affiliates has or will, either
alone or with one or more other persons, bid for or purchase for any account in
which it or any of its Affiliates has a beneficial interest, or attempt to
induce any person to purchase, any Securities; and neither it nor any of its
Affiliates will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Securities.
(j) The Issuing Companies will use their best efforts to cause the
Securities to be eligible for the PORTAL trading system.
(k) The Company will use the net proceeds received by it from the
sale of the Securities pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "use of proceeds."
(l) During the period from the date hereof to 90 days after the
Closing Date, none of the Issuing Companies will sell or cause to be offered,
sold or contracted to sell, or otherwise dispose of, any debt securities
substantially similar to the Securities without the prior written consent of the
Initial Purchaser.
6. Conditions of the Obligations of the Initial Purchaser. The
obligation of the Initial Purchaser to purchase and pay for the Securities on
the Closing Date will be subject to the accuracy of the representations and
warranties on the part of each of the Issuing Companies set forth herein on the
date hereof and on the Closing Date, to the accuracy of the statements of the
officers of the Issuing Companies made pursuant to the provisions hereof, to the
performance by the Issuing Companies of their respective obligations hereunder
and to the following additional conditions precedent (it being understood that
all references to the "Subsidiaries" of the Company in this Section 6 shall
include CalGen Finance):
(a) CalGen Finance shall have become a direct wholly owned
Subsidiary of the Company, and the capital stock of CalGen Finance shall be
owned by the Company free from liens, encumbrances and defects.
13
(b) The Initial Purchaser shall have received a "comfort" letter
dated, the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchaser, from PricewaterhouseCoopers LLP.
(c) The Chief Financial Officer of the Company shall have
furnished a certificate, dated the Closing Date, in form and substance
satisfactory to the Initial Purchaser, stating to the effect that:
(i) The Company does not intend to or believe that it has
incurred or will incur debts that will be beyond its ability to pay as they
mature;
(ii) No CalGen Subsidiary intends to or believes that it has
incurred or will incur debts that will be beyond its ability to pay as they
mature;
(iii) The present fair saleable value of the assets of the
Company exceeds the amount that will be required to pay the probable liability
on its existing debts (whether matured or unmatured, liquidated or unliquidated,
absolute, fixed or contingent) as they become absolute and matured, and as a
result of the transactions contemplated herein, will continue to exceed such
amount;
(iv) The present fair saleable value of the assets of each
CalGen Subsidiary exceeds the amount that will be required to pay the probable
liability on such Subsidiary's existing debts (whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent) as they become
absolute and matured, and as a result of the transactions contemplated herein,
will continue to exceed such amount;
(v) The Company does not, and as a result of the
consummation of the transactions contemplated in this Agreement, will not have
unreasonably small capital for it to carry on its businesses as proposed to be
conducted;
(vi) No CalGen Subsidiary has, nor as a result of the
consummation of the transactions contemplated in this Agreement, will have,
unreasonably small capital for it to carry on its business as proposed to be
conducted;
(vii) The Company is not incurring obligations or making
transfers under any evidence of indebtedness with the intent to hinder, delay or
defraud any entity to which it is or will become indebted;
(viii) No CalGen Subsidiary is incurring obligations or making
transfers under any evidence of indebtedness with the intent to hinder, delay or
defraud any entity to which it is or will become indebted; and
(ix) X.X. Xxxx, Inc. ("XXXX") is an independent engineer and
nothing has to come to the Company's attention to cause it to believe that Xxxx
is not qualified to pass on questions relating to the technical, environmental
and economic aspects of the projects operated by the CalGen Companies as such
projects are described in the Offering Memorandum; the assumptions included in
Xxxx'x report dated as of such date between the date of the agreement and the
Closing Date, (the "XXXX REPORT"), are reasonable; that the information provided
by the CalGen Companies to Xxxx in connection with the Xxxx Report was prepared
in good faith by the CalGen Companies; and that nothing has come to the
attention of the Company that causes it to believe that the factual information
or the conclusions contained in the Xxxx Report are inaccurate in any material
adverse respect.
14
(d) The Collateral Agent shall have received at the Closing Date:
(i) appropriately completed copies, which have been duly
authorized for filing by the appropriate Person, of Uniform Commercial Code
Financing Statements naming each of the Pledging Companies as a debtor and the
Collateral Agent as the secured party, or other similar instruments or documents
to be filed under the UCC of all jurisdictions as may be necessary or, in the
reasonable opinion of the Trustee and its counsel, desirable to perfect the
security interests of the Secured Parties pursuant to the Security Documents;
(ii) appropriately completed copies, which have been duly
authorized for filing by the appropriate Person, of UCC Financing Statement
Amendments (Forms UCC-3) termination statements, if any, necessary to release
all Liens of any Person in any Collateral previously granted by any Pledging
Company to the extent not permitted under the Indentures after the Closing Date
(including Liens granted in connection with the Existing Senior Secured Credit
Facility);
(iii) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified by a
party reasonably acceptable to the Trustee, dated a date reasonably near to the
Closing Date, listing all effective Financing Statements which name any
Transaction Company (under its present name and any previous name) as the
debtor, together with copies of such Financing Statements (none of which shall
cover any Collateral, other than Financing Statements that evidence (A) Liens
granted in connection with the Existing Senior Secured Credit Facility and (B)
other existing Liens which are not permitted under the Indentures after the
Closing Date);
(iv) such releases, reconveyances, satisfactions or other
instruments as it may reasonably request to confirm the release, satisfaction
and discharge in full of all mortgages and deeds of trust at any time delivered
by any of the Transaction Companies to secure any Obligations in respect of the
Existing Senior Secured Credit Facility, duly executed, delivered and
acknowledged in recordable form by the grantee named therein or its of record
successors or assigns;
(v) a letter or letters (in form and substance reasonably
satisfactory to the Initial Purchaser) addressed to the Collateral Agent, the
Trustee, the Term Loan Administrative Agent and the Revolving Loan
Administrative Agent, executed and delivered by the Existing Credit
Administrative Agent, stating the amount (the "PAYOUT AMOUNT") required to pay
in full in cash at the Closing Date all outstanding Obligations under or in
respect of the Existing Senior Secured Credit Facility;
(vi) a certificate of insurance reasonably satisfactory to
the Initial Purchaser confirming that all insurance requirements of the
Indentures and the Security Documents are satisfied;
(vii) (A) certificates (which certificates shall be
accompanied by irrevocable undated stock powers or transfer documents, duly
endorsed in blank and otherwise satisfactory in form and substance to the
Initial Purchaser) representing all Capital Stock pledged pursuant to the
Security Documents and (B) all certificated promissory notes or other
certificated instruments (duly endorsed, where appropriate, in a manner
reasonably satisfactory to the Initial Purchaser) evidencing any Collateral; and
(viii) such other approvals, opinions or documents as the
Initial Purchaser, the Trustee or the Collateral Agent may reasonably request in
form and substance reasonably satisfactory to each of them.
15
(e) All Uniform Commercial Code Financing Statements (Forms UCC-1)
or other similar Financing Statements and UCC Financing Statement Amendments
(Forms UCC-3) required pursuant to clauses (d)(i) and (ii) above (collectively,
the "FINANCING STATEMENTS") shall have been filed or recorded, or delivered to
the Collateral Agent for filing or recording.
(f) The Company shall have executed and delivered the Term Loan
Agreements and the Revolving Loan Agreement, and such agreements shall be in
full force and effect prior to, or shall become in full force and effect
simultaneously with, the Closing Date, and the Term Loans shall have been funded
prior to, or shall be funded simultaneously with, the Closing Date, in each case
on substantially the terms described in the Offering Memorandum and other terms
reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser
shall have received counterparts, conformed as executed, of the Term Loan
Agreements, the Revolving Loan Agreement and such other documentation as it
deems necessary to evidence the consummation thereof.
(g) The Company shall have received cash proceeds from borrowings
of the Term Loans in an amount sufficient, when added to the cash proceeds from
the sale of the Securities (net of underwriting discounts and commissions) and
cash from any capital contribution as described in the Offering Memorandum to
pay in full in cash the Payout Amount and all other fees, costs and expenses
payable by the Transaction Companies in connection with the closing of the
transactions contemplated herein and shall have authorized disbursement of such
cash proceeds directly to pay the Payout Amount.
(h) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change; or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the CalGen Companies, taken as a whole,
which, in the judgment of the Initial Purchaser, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; (ii) any downgrading in
the rating of any debt securities or preferred stock of (A) Calpine Corporation
to CCC or below by Standard & Poor's or Caal or below by Xxxxx'x or (B) the
Company to CCC+ or below by Standard & Poor's; (iii) any suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of Calpine Corporation or the Company on any exchange
or in the over-the-counter market; (iv) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States which, in the judgment of the Initial Purchaser,
makes it impracticable or inadvisable to proceed with the completion of the
offering of the Securities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Initial Purchaser, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with the completion of the offering or the sale of and
payment for the Securities.
(i) The Initial Purchaser shall have received from Xxxxxx &
Xxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the validity
of the Securities delivered on such Closing Date, the Offering Memorandum and
other related matters as the Initial Purchaser may require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(j) The Initial Purchaser shall have received an opinion, in form
and substance reasonably satisfactory to the Initial Purchaser, dated the
Closing Date, of Stoel Rives LLP, counsel to the Company and the Calpine
Companies (as defined below), to the effect that:
16
(i) Each of the documents set forth on Schedule Dl-A hereto
have been duly authorized, executed and delivered by the Company and the
Calpine Companies party thereto, as applicable; and
(ii) Each of the documents set forth on Schedule Dl-A
constitutes the valid and binding obligation of each of the Company and
the Calpine Companies (other than Calpine Corporation) party thereto, as
applicable, enforceable against such party in accordance with its
respective terms.
(k) The Initial Purchaser shall have received an opinion, in form
and substance reasonably satisfactory to the Initial Purchaser, dated the
Closing Date, of Xxxxxxxxx & Xxxxxxx, counsel to the Company and the Calpine
Companies, to the effect that:
(i) The Company is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of
Delaware and has the limited liability company power and authority to own
its properties and conduct its business as described in the Offering
Memorandum and to issue the Notes and incur the Term Loans and Revolving
Credit Loans;
(ii) Each of CalGen Finance, CalGen Holdings, Goldendale
Energy Center, LLC ("GOLDENDALE"), Calpine Corporation and the Guarantors
(collectively with the Company, the "CALPINE COMPANIES") (x) other than
the Calpine Companies specified in clause (y) of this Section 6(k)(ii) has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, and has
corporate power and authority to own its property and to conduct its
business as described in the Offering Memorandum or (y) that is not a
corporation (other than Calpine Power Equipment LP and Freestone Power
Generation LP (the "Texas Guarantors") is a limited partnership or a
limited liability company, has been duly formed and is validly existing,
as a limited partnership or a limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its formation,
and has partnership or limited liability company power and authority, as
the case may be, to own its property and to conduct its business as
described in the Offering Memorandum and, as applicable, to issue the
Notes, the Guarantees and the Credit Guarantees;
(iii) (A) The documents set forth on Schedules D-1B and D2
hereto (other than the Mortgages) have been duly authorized, executed and
delivered by the Calpine Companies (other than the Texas Guarantors) party
thereto, as applicable; (B) each of the Mortgages set forth on Schedule D2
hereto have been duly authorized by the Calpine Companies (other than the
Texas Guarantors) party thereto; and (C) each of the documents set forth
on Schedules D-1B and D2 hereto (other than the Mortgages) constitutes the
valid and binding obligation of each of the Calpine Companies party
thereto, as applicable, enforceable against such party in accordance with
its respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors rights and to general
equity principles;
(iv) To the knowledge of such counsel, there are no
contracts, agreements or understandings between the Company, CalGen
Finance or any of the Guarantors and any person granting such person the
right to require the Company, CalGen Finance or any of the Guarantors to
file a registration statement under the Securities Act with respect to any
securities of the Company, CalGen Finance or any of the Guarantors owned
or to be owned by such person or to require the Company, CalGen Finance or
any of the Guarantors to include such
17
securities in any other registration statement filed by the Company,
CalGen Finance or any of the Guarantors under the Securities Act, other
than the Registration Rights Agreement;
(v) None of the Calpine Companies are or, after giving
effect to the offering and sale of the Securities, the borrowing of the
Term Loans or the Revolving Credit Loans and the application of the
proceeds thereof as described in the Offering Memorandum, will be an
"investment company" within the meaning of the Investment Company Act of
1940;
(vi) Except as set forth in the Offering Memorandum, to such
counsel's knowledge, there are no pending or threatened actions, suits or
proceedings against or affecting any of the Calpine Companies or any of
their respective properties that, if determined adversely to the
applicable Calpine Companies, would individually or in the aggregate have
a Material Adverse Effect or would materially and adversely affect the
ability of the applicable Calpine Companies to perform their respective
obligations under this Agreement, the Indentures, the Securities, the
Registration Rights Agreement, the Security Documents, the Term Loan
Agreements, the Revolving Loan Agreement or the Major Project Documents;
(vii) The execution, delivery and performance by the Calpine
Companies, as applicable, of this Agreement, the Indentures, the
Registration Rights Agreement, the Security Documents, the Term Loan
Agreements, the Revolving Loan Agreement and the Major Project Documents
(collectively, the "transaction documents") and the issuance and sale of
the Securities, the borrowing of the Term Loans, the incurrence of the
Revolving Credit Loans, the grant and perfection of the security interests
in the Collateral pursuant to the Security Documents and compliance by the
Calpine Companies, as applicable, with the terms and provisions thereof
and the consummation of the transactions contemplated thereby, will not
(A)(i) in the case of the Transaction Documents other than the Mortgages,
violate or conflict with any law of the State of New York, the Delaware
General Corporation Law, the Delaware Revised Uniform Limited Partnership
Act, the Delaware Limited Liability Company Act or any Federal law of the
United States of America having applicability to any of the Calpine
Companies, as applicable, or any statute, rule, regulation or order known
to such counsel of any governmental body or any court having jurisdiction
over any of the Calpine Companies or any of their respective properties,
and (ii) in the case of the Mortgages, violate or conflict with any law of
the State of New York, the Delaware General Corporation Law, the Delaware
Revised Uniform Limited Partnership Act or the Delaware Limited Liability
Company Act or any regulation under any such laws known to such counsel
having applicability to any of the Calpine Companies, as applicable, (B)
breach the provisions of, or cause a default, or result in the imposition
or creation of (or the obligation to create or impose) a Lien (other than
in favor of the Secured Parties), under (i) any agreement or instrument
listed in Schedule E hereto or (ii) in the case of the Company, CalGen
Finance, CalGen Holdings and the Guarantors listed on Schedule F hereto
(the "NON-PROJECT GUARANTORS"), to the knowledge of such counsel any
material agreement or instrument to which the Company, CalGen Finance,
CalGen Holdings or such Non-Project Guarantor is a party, or (C) violate
any provision of the charter, by-laws or any other constitutive document
of the Calpine Companies;
(viii) Based upon and assuming the accuracy of the
representations and warranties set forth in this Agreement, it is not
necessary in connection with either (A) the offer, sale and delivery to
the Initial Purchaser of the Securities or (B) the resales of the
Securities by the Initial Purchaser in the manner contemplated by this
Agreement, pursuant to Rule 144A or Regulation S under the Securities Act,
to register the Securities under the Securities Act or to qualify an
indenture in respect thereof under the Trust Indenture Act;
18
(ix) Each of the Security Documents, at the Closing Date,
will create a valid security interest in favor of the Collateral Agent in
that portion of the Collateral which is covered thereby and in which a
valid security interest may be created under Article 9 of the New York UCC
(the "UCC COLLATERAL"), which security interest will secure the Secured
Obligations;
(x) (A) Based upon a review of the Indentures and the
Securities, and the covenants and conditions therein with respect to the
issuance of the Securities, all covenants and conditions precedent under
each of the Indentures to the issuance of the Securities have heretofore
been complied with; (B) each of the Calpine Companies (other than
Goldendale) has duly authorized, executed and delivered each of this
Agreement, the Indentures, the Securities, the Registration Rights
Agreement, the Term Loan Agreements, the Revolving Loan Agreement and the
Credit Guarantees to which it is a party; (C) Calpine Corporation has duly
authorized, executed and delivered the Major Project Documents to which it
is a party; (D) the Securities conform to the descriptions thereof
contained in the Offering Memorandum; and (E) each of the Securities, the
Registration Rights Agreement, the Indenture, the Term Loan Agreements and
the Revolving Loan Agreement constitutes the valid and binding obligation
of the Calpine Company party thereto, enforceable in accordance with its
respective terms, and conforms to the description thereof contained in the
Offering Memorandum; subject, in the case of clause (E), to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles;
(xi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court under the law of
the State of New York, the Delaware General Corporation Law, the Delaware
Limited Liability Company Act, the Delaware Revised Uniform Limited
Partnership Act or the Federal Law of the United States of America is
required for (x) the consummation by the Calpine Companies of the
transactions contemplated by this Agreement, the Indentures, the Security
Documents, the Term Loan Agreements, the Revolving Loan Agreement or the
Major Project Documents in connection with the issuance or sale of the
Securities by the Company, CalGen Finance or any of the Guarantors, (y)
the execution and delivery by the Company, CalGen Finance and the
Guarantors of the Registration Rights Agreement, or (z) the execution and
delivery by the Company and the Guarantors of the Term Loan Agreements and
the Revolving Loan Agreement and the incurrence by the Company of the Term
Loans or the Revolving Credit Loans, or the issuance of the Credit
Guarantees by the Guarantors or the grant and perfection of the security
interests in the Collateral pursuant to the Security Documents; except for
(A) any of the foregoing as may be required under State securities or blue
sky laws and the rules and regulations promulgated thereunder and (B)
filings required to perfect the security interests granted pursuant to the
Security Documents and filings to release existing liens on the
Collateral; provided, however, in clauses (x) and (z) above, no opinion is
expressed under the Federal law of the United States of America with
respect to the Mortgages;
(xii) Upon issuance, the Notes should be characterized as
indebtedness for U.S. federal income tax purposes and the Company should
not be classified as a publicly traded partnership taxable as a
corporation;
(xiii) The statements in the Offering Memorandum under the
captions "Business-Purchase of Gas and Sale of Power", "Business-Index
Hedge", "Business-Operation of our Facilities", "Business-Project
Construction", "Business-General Administrative Matters", "Business-
Working Capital Facility", "Description of New Term Loans," "Description
of New Revolving Credit Facility," "Description of Notes," "Certain United
States Federal Income Tax
19
Considerations" and "Benefit Plan Considerations," insofar as such
statements constitute summaries of the laws, regulations, legal matters,
agreements or other legal documents referred to therein, are accurate in
all material respects and fairly summarize the matters referred to
therein;
(xiv) Such counsel have no reason to believe that the Offering
Memorandum, or any amendment or supplement thereto, as of its date and as
of the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements
therein not misleading; it being understood that such counsel need express
no opinion as to the financial statements or other financial data
contained in the Offering Memorandum;
(xv) Pursuant to the provisions of the Security Agreement,
each Pledging Company has authorized the filing of the UCC Financing
Statements naming such Pledging Company, as debtor, and the Collateral
Agent, as secured party, to be filed pursuant to the Security Agreement in
the Office of the Secretary of State of the State of Delaware, for
purposes of Section 9-509 of the Delaware Uniform Commercial Code. The
Financing Statements are in sufficient form for filing with the Secretary
of State of the State of Delaware. Upon the filing of the Financing
Statements in the Office of the Secretary of State of the State of
Delaware, the security interests in favor of the Collateral Agent for the
benefit of the Secured Parties in the Collateral described in the
Financing Statements will be perfected under Article 9 of the Delaware
Uniform Commercial Code to the extent a security interest in such
Collateral may be perfected by filing of a Financing Statement in the
State of Delaware;
(xvi) The Control Agreement is sufficient in form and
substance to provide for the perfection by control of a security interest
in favor of the Collateral Agent in each Pledged Account (as defined in
the Control Agreement), to the extent such Pledged Account is a "deposit
account" as defined under the NYUCC, and such security interest will be
perfected when cash is credited to such Pledged Account in accordance with
the Control Agreement. The Control Agreement is sufficient in form and
substance to provide for the perfection by control of a security interest
in favor of the Collateral Agent in each Pledged Account (as defined in
the Control Agreement), to the extent such Pledged Account is a
"securities account" as defined under Section 8-501 (a) of the NYUCC, and
such security interest will be perfected when such Pledged Account
contains one or more Security Entitlements (as defined in Section
8-102(a)(17) of the NYUCC).
(xvii) The security interest of the Collateral.Agent in that
portion of the Pledged Collateral (as defined in the Membership Interests
Pledge Agreement) consisting of certificated securities (the "PLEDGED
CERTIFICATES") will be perfected under the New York Uniform Commercial
Code when the Pledged Certificates are delivered to the Collateral Agent
in the State of New York pursuant to the Membership Interests Pledge
Agreement, either registered in the name of the Collateral Agent or duly
endorsed to the Collateral Agent or in blank. No other security interest,
if any, perfected under the New York Uniform Commercial Code in the
Pledged Certificates will rank equal to or prior to the security interest
of the Collateral Agent in the Pledged Certificates perfected as described
in the preceding sentence; and
(xviii) The security interest of the Collateral Agent in that
portion of the Pledged Collateral (as defined in the Expansion Co.
Membership Interests Pledge Agreement) consisting of certificated
securities (the "EXPANSION CO. PLEDGED CERTIFICATES") will be perfected
under the New York Uniform Commercial Code when the Expansion Co. Pledged
Certificates are delivered to the Collateral Agent in the State of New
York pursuant to the Expansion Co. Membership Interest Pledge Agreement,
either registered in the name of the Collateral Agent or
20
duly endorsed to the Collateral Agent or in blank. No other security
interest, if any, perfected under the New York Uniform Commercial Code in
the Expansion Co. Pledged Certificates will rank equal to or prior to the
security interest of the Collateral Agent in the Expansion Co. Pledged
Certificates perfected as described in the preceding sentence;
provided, however, that Xxxxxxxxx & Xxxxxxx will not be required to
deliver the opinion referred to in Section 6(k)(xii) if the Notes have not been
rated higher than CCC+ by Standard & Poor's prior to closing.
(l) The Initial Purchaser shall have received an opinion, in form
and substance reasonably satisfactory to the Initial Purchaser, dated the
Closing Date, of Xxxxx Xxxxxx Xxxxxxxx LLP, counsel to the Company and the
Calpine Companies, to the effect that:
(i) To such counsel's knowledge, based on the conduct of the
Company's and CalGen Finance's respective businesses described in the
Offering Memorandum, none of the CalGen Companies or any "subsidiary
company," as that term is defined in PUHCA, of the CalGen Companies is, or
after giving effect to the issuance and sale of the Securities, will be,
subject to regulation (i) as a "holding company, "as subsidiary company"
of a holding company or a "public-utility company," as those terms are
defined in PUHCA; (ii) under the Federal Power Act, as amended ("FPA"),
other than (A) as an "exempt wholesale generator" ("EWG"), as that term is
defined in PUHCA, that is subject to regulation as a "public utility"
under the FPA, other than as described in the Offering Documents, or (B)
as a QF under PURPA, as contemplated by 18 C.F.R. Section 292.60 l(c); or
(iii) under any state law or regulation with respect to rates or the
financial or organizational regulation of electric utilities, other than,
with respect to Subsidiaries of the Company that are QFs, as contemplated
by 18 C.F.R. Section 292.602(c);
(ii) Other than as described in the Offering Documents, each
of the power generation projects in which the CalGen Companies listed on
Schedule C1 have an interest meets the requirements under PURPA and the
regulations of the FERC promulgated thereunder, as amended from time to
time, necessary to be a "qualifying cogeneration facility" and/or a
"qualifying small power generation production facility"; and
(iii) Each of the Company's Subsidiaries listed on Schedule C2
hereto (A) own and/or operate Eligible Facilities within the meaning of
Section 32 of PUHCA, and each such Subsidiary has received a determination
from the FERC, not subject to any pending challenge or appeal, that it is
an EWG, within the meaning of Section 32 of PUHCA; and (B) other than as
described in the Offering Documents, has validly issued orders from the
FERC, not subject to any pending challenge, investigation, or proceeding
(other than the FERC's generic proceeding initiated in Docket No.
EL01-118-000), (I) authorizing such Subsidiary to engage in wholesale
sales of electricity, ancillary services and, to the extent permitted
under its market-based rate tariff, other services at market-based rates,
and (2) granting such waivers and blanket authorizations as are
customarily granted to entities with market-based rate authority; with
respect to each such Subsidiary, the FERC has not imposed any rate caps or
mitigation measures other than rate caps and mitigation measures generally
applicable to similarly situated marketers or generators selling
electricity, ancillary services or other services at wholesale in the
geographic market where such Subsidiary conducts its business.
(m) The Initial Purchaser shall have received an opinion, in form
and substance reasonably satisfactory to the Initial Purchaser, dated such
Closing Date, of Xxx Xxxxxxx, Deputy General Counsel of Calpine Corporation, to
the effect that:
21
(i) The Company and each Calpine Company is duly qualified
to transact business as described in the Offering Memorandum and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect;
(ii) The Company and each of its Subsidiaries possess
adequate certificates, authorities, licenses or permits issued by
appropriate governmental agencies or bodies necessary to conduct the
business as now operated by them as described in the Offering Memorandum
and such counsel is not aware of the receipt of any notice of proceedings
relating to the revocation or modification of any such certificate,
authority, license or permit that, if determined adversely to the Company
or any of its Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for
the issuance or sale of the Securities by the Company, CalGen Finance and
the Guarantors or the grant and perfection of the security interests in
the Collateral pursuant to the Security Documents, except for (A) any of
the foregoing as may be required under State securities or blue sky laws
and the rules and regulations promulgated thereunder and (B) the filings
required to perfect the Collateral Agent's security interests granted
pursuant to the Security Documents and the filings to release existing
liens on the Collateral;
(iv) Each of the Company's Subsidiaries that is participating
in the Texas wholesale electric market has registered as a Power
Generation Company (as defined under the Texas Utilities Code) with the
TPUC, and to such counsel's knowledge the TPUC has not imposed on the
Company any specific rate cap or mitigation measures other than rate caps
and mitigation measures generally applicable to similarly situated
marketers or generators selling electricity, ancillary services or other
services at wholesale in the State of Texas; and
(v) To such counsel's knowledge, the Company and each of its
Subsidiaries (A) is in material compliance with any and all applicable
Environmental Laws, (B)has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct
its business as described in the Offering Memorandum and (C) is in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(vi) The statements set forth in the Offering Memorandum
under the captions "Business - Legal Proceedings", insofar as they purport
to describe and summarize the proceedings referred to therein, are
accurate, complete and fair in all material respects.
(vii) The Texas Guarantors have duly authorized, executed and
delivered the Transaction Documents to which they are a party.
(n) The Initial Purchaser shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of each Issuing Company in which such officers,
to the best of their knowledge after reasonable investigation, shall state that
the representations and warranties of such Issuing Company in this Agreement are
true and correct; such Issuing Company has complied with all agreements and
satisfied all conditions on its part to be
22
performed or satisfied hereunder at or prior to the Closing Date; and,
subsequent to the date of the most recent financial statements in the Offering
Documents, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of such
Issuing Company and its Subsidiaries taken as a whole except as set forth in or
contemplated by the Offering Documents.
(o) Local counsel to the Company in Alabama, California, Illinois,
Louisiana, Oklahoma, South Carolina and Texas shall have furnished to the
Initial Purchaser their written opinions, dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchaser as agreed as of the
date hereof, as to such matters under the laws of their respective states as the
Initial Purchaser may reasonably request, including without limitation, (i) an
opinion that the execution, delivery and performance by the Calpine Companies,
as applicable, of the Transaction Documents and the issuance and sale of the
Securities, the borrowing of the Term Loans, the incurrence of the Revolving
Credit Loans, the grant and perfection of the security interests in the
Collateral pursuant to the Security Documents and compliance by the Calpine
Companies, as applicable, with the terms and provisions thereof and the
consummation of the transactions contemplated thereby does not breach the
provisions of, or cause a default, or result in the imposition or creation of
(or the obligation to create or impose) a Lien (other than in favor of the
Secured Parties), under any agreement or instrument listed in Schedule B hereto
and (ii) opinions as to the execution, delivery and enforceability of the
Mortgages and an opinion that the execution, delivery and enforceability of such
Mortgages does not violate the Federal law of the United States of America; it
being understood that (A) such opinions (other than the opinion relating to the
State of Texas (the "TEXAS OPINION")) will be substantively similar to the
opinions provided in connection with the closing of the Term Loan Agreements and
Revolving Loan Agreement and (B) the Texas Opinion with respect to any
Transaction Company incorporated or formed in the State of Texas shall include
written opinions substantively similar to the opinions provided in connection
with the closing of the Term Loan Agreements and Revolving Loan Agreement and
such other opinions relating to (1) such Transaction Company's formation and
good standing in the State of Texas and its authorization, execution and
delivery of the Operative Documents to which it is a party. Local counsel to the
Company in Texas shall have furnished to the Initial Purchaser their written
opinion, dated the Closing Date, that the Texas Guarantors have duly authorized,
executed and delivered the Transaction Documents to which they are a party.
(p) The Issuing Companies shall furnish the Initial Purchaser with
conformed copies of such other opinions, certificates, letters and documents as
the Initial Purchaser reasonably request. The Initial Purchaser may in their
sole discretion waive compliance with any conditions to the obligations of the
Initial Purchaser hereunder.
(q) The Collateral Agent shall have received (with a copy to the
Trustee) a fully executed and notarized mortgage or deed of trust from each
Guarantor (each a "CLOSING DATE MORTGAGE") encumbering all of such Guarantor's
real property interests owned or leased by such Guarantor ("CLOSING DATE
MORTGAGED PROPERTY") as security for the payment and performance of the Secured
Obligations. Each Closing Date Mortgage shall be in proper form for recording in
all applicable jurisdictions where the property encumbered thereby is located.
(r) The Collateral Agent shall have received CLTA mortgagee
policies of title insurance or unconditional commitments therefor (the "CLOSING
DATE MORTGAGE POLICIES") issued by die Title Company with respect to the Closing
Date Mortgaged Properties, providing coverage in an amount equal to $50,000,000
per Closing Date Mortgaged Property and assuring the Collateral Agent that the
applicable Closing Date Mortgages create valid and enforceable first priority
mortgage Liens on the respective Closing Date Mortgaged Properties encumbered
thereby. The Closing Date Mortgage Policies shall (i) include endorsements
providing mechanics' lien coverage and such other coverages as are
23
reasonably requested by the Trustee, and (ii) provide for such affirmative
insurance, gap coverage and reinsurance as the Trustee may reasonably request,
all of the foregoing in form and substance reasonably satisfactory to the
Trustee.
(s) The Collateral Agent shall have received a certificate from
the Company's insurance broker or other evidence satisfactory to it that all
insurance required to be maintained pursuant to the Indentures and the Security
Documents is in full force and effect and that Collateral Agent on behalf of the
Secured Parties has been named as additional insured and/or loss payee
thereunder to the extent required under this Agreement.
(t) The Initial Purchaser, at least four business days prior to
the Closing Date, shall have received copies of the financial statements for the
Company and its Subsidiaries on a combined basis (covering the fiscal years
ended December 31, 2001, December 31, 2002 and December 31, 2003) as audited by
PricewaterhouseCoopers LLP, (the "AUDITED FINANCIALS"), and the Audited
Financials, taken as a whole, shall, in the reasonable judgment of the Initial
Purchaser, not be materially different from the unaudited combined financial
statements for the Company and its Subsidiaries (covering the years ended
December 31, 2001, December 31, 2002 and December 31, 2003) prepared by the
Company and delivered to the Initial Purchaser on March 11, 2004.
(u) The Issuing Companies shall have entered into the Registration
Rights Agreement and the Initial Purchaser shall have received counterparts,
conformed as executed, thereof.
(v) The Issuing Companies shall have entered into the Term Loan
Agreements and the Revolving Loan Agreement, and the Initial Purchaser shall
have received counterparts, conformed as executed, thereof.
(w) The Offering Memorandum shall be in a form substantially
similar to the Company's February 9, 2004 preliminary offering memorandum,
except for (i) such changes as are reasonably necessary to reflect the terms of
the offering of the Securities and related transactions in the manner
contemplated by this Agreement, (ii) updating changes and (iii) other changes
that are reasonably acceptable to the Initial Purchaser.
7. Indemnification and Contribution, (a) The Issuing Companies, jointly
and severally, will indemnify and hold harmless the Initial Purchaser, its
partners, directors and officers and each person, if any, who controls the
Initial Purchaser within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Initial Purchaser may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Documents, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, and will reimburse the Initial Purchaser for any legal
or other expenses reasonably incurred by the Initial Purchaser in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Issuing
Companies will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Issuing Companies by the Initial Purchaser specifically for use therein.
(b) The Initial Purchaser will indemnify and hold harmless the
Issuing Companies and their respective directors, officers and trustees and each
person, if any, who controls the
24
Issuing Companies, within the meaning of Section 15 of the Securities Act
against any losses, claims, damages or liabilities to which the Issuing
Companies may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Documents, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Issuing
Companies by the Initial Purchaser specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Issuing
Companies in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuing Companies on the one hand and the Initial Purchaser on the other
from the offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuing Companies on the one hand and
the Initial Purchaser on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Issuing Companies on the one hand and the Initial Purchaser on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Issuing Companies bear to
the total discounts and commissions received by the Initial Purchaser from the
Issuing Companies under this Agreement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuing Companies or the
Initial Purchaser and the parties' relative intent,
25
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Initial Purchaser shall not be required to contribute any amount in excess of
the amount by which the total price at which the Securities were resold exceeds
the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Issuing Companies under this Section
shall be in addition to any liability which the Issuing Companies may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Initial Purchaser within the meaning of the Securities Act
or the Exchange Act; and the obligations of the Initial Purchaser under this
Section shall be in addition to any liability which the Initial Purchaser may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Issuing Companies within the meaning of the
Securities Act or the Exchange Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuing Companies or their respective officers and of the Initial Purchaser set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Initial Purchaser and the Issuing Companies or any
of their respective officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Securities by the Initial Purchaser is not consummated, the
Issuing Companies shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Issuing Companies and the Initial Purchaser pursuant to Section 7 shall remain
in effect, and if any Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Securities by the Initial
Purchaser is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to a default by the Initial Purchaser,
the Issuing Companies will reimburse the Initial Purchaser for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Securities and the preparation of
the Security Documents.
9. Notices. All communications hereunder will be in writing and, if
sent to the Initial Purchaser, will be mailed, delivered, telegraphed and
confirmed or faxed and confirmed to the Initial Purchaser, c/o Morgan Xxxxxxx &
Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention: General
Counsel; or, if sent to any of the Issuing Companies will be mailed, delivered,
telegraphed and confirmed or faxed and confirmed to it at Calpine Generating
Company, LLC, 00 Xxxx Xxx Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000,
Attention: General Counsel.
26
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder, except that Holders of
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Issuing Companies as if such Holders were parties hereto.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Each of the Issuing Companies hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
(signature page follows)
27
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Issuing Companies on the one hand and the Initial Purchasers on the other in
accordance with its terms.
Very truly yours,
CALPINE GENERATING COMPANY, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN FINANCE CORP.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN EXPANSION COMPANY, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
BAYTOWN ENERGY CENTER, LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE BAYTOWN ENERGY CENTER GP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE BAYTOWN ENERGY CENTER LP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
BAYTOWN POWER GP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
BAYTOWN POWER, LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
XXXXXXXX ENERGY LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CHANNEL ENERGY CENTER, LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE CHANNEL ENERGY CENTER GP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE CHANNEL ENERGY CENTER LP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CHANNEL POWER GP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CHANNEL POWER, LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
COLUMBIA ENERGY LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CORPUS CHRISTI COGENERATION LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
NUECES BAY ENERGY LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE NORTHBROOK SOUTHCOAST INVESTORS,
LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE CORPUS CHRISTI ENERGY GP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE CORPUS CHRISTI ENERGY, LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
DECATUR ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
DELTA ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN PROJECT EQUIPMENT FINANCE COMPANY
TWO, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
FREESTONE POWER GENERATION LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE FREESTONE, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CPN FREESTONE, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE FREESTONE ENERGY GP, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE FREESTONE ENERGY, LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE POWER EQUIPMENT LP
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
LOS MEPANOS ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN PROJECT EQUIPMENT FINANCE COMPANY
ONE, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
XXXXXX ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
PASTORIA ENERGY FACILITY L.L.C.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE PASTORIA HOLDINGS, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE XXXXX POWER, L.P.
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE XXXXX POWER I, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALPINE XXXXX POWER II, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
ZION ENERGY LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN PROJECT EQUIPMENT FINANCE
COMPANY THREE, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN EQUIPMENT FINANCE HOLDINGS, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
CALGEN EQUIPMENT FINANCE COMPANY, LLC
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: XXXXX XXXX
Title: Vice President
The foregoing Purchase Agreement is hereby confirmed and accepted as of
the date first above written.
XXXXXX XXXXXXX & CO, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Executive Director
(CalGen Finance Corp. Purchase Agreement Signature Page)
EXHIBIT A
EXHIBIT A
LIST OF GUARANTORS
CalGen Expansion Company, LLC, a Delaware limited liability company
Baytown Energy Center, LP, a Delaware limited partnership
Calpine Baytown Energy Center GP, LLC, a Delaware limited liability company
Calpine Baytown Energy Center LP, LLC, a Delaware limited liability company
Baytown Power GP, LLC, a Delaware limited liability company
Baytown Power, LP, a Delaware limited partnership
Xxxxxxxx Energy LLC, a Delaware limited liability company
Calpine Channel Energy Center, LP, a Delaware limited partnership
Calpine Channel Energy Center GP, LLC, a Delaware limited liability company
Channel Energy Center LP, a Delaware limited partnership
Channel Power GP, LLC, a Delaware limited liability company
Channel Power, LP, a Delaware limited partnership
Columbia Energy LLC, a Delaware limited liability company
Corpus Christi Cogeneration LP, a Delaware limited partnership
Nueces Bay Energy LLC, a Delaware limited liability company
Calpine Northbrook Southcoast Investors, LLC, a Delaware limited liability
company
Calpine Corpus Christi Energy GP, LLC, a Delaware limited liability company
Calpine Corpus Christi Energy, LP, a Delaware limited partnership
Decatur Energy Center, LLC, a Delaware limited liability company
Delta Energy Center, LLC, a Delaware limited liability company
CalGen Project Equipment Finance Company Two, LLC, a Delaware limited liability
company
Freestone Power Generation LP, a Texas limited partnership
Calpine Freestone, LLC, a Delaware limited liability company
CPN Freestone, LLC, a Delaware limited liability company
Calpine Freestone Energy GP, LLC, a Delaware limited liability company
Calpine Freestone Energy, LP, a Delaware limited partnership
Calpine Power Equipment LP, a Texas limited partnership
Los Medanos Energy Center LLC, a Delaware limited liability company
CalGen Project Equipment Finance Company One, LLC, a Delaware limited liability
company
Xxxxxx Energy Center, LLC, a Delaware limited liability company
Pastoria Energy Facility L.L.C., a Delaware limited liability company
Calpine Pastoria Holdings, LLC, a Delaware limited liability company
Calpine Xxxxx Power, L.P., a Delaware limited partnership
Calpine Xxxxx Power I, LLC, a Delaware limited liability company
Calpine Xxxxx Power II, LLC, a Delaware limited liability company
Zion Energy LLC, a Delaware limited liability company
CalGen Project Equipment Finance Company Three, LLC, a Delaware limited
liability company
CalGen Equipment Finance Holdings, LLC, a Delaware limited liability company
CalGen Equipment Finance Company, LLC, a Delaware limited liability company
SCHEDULE A
[RESERVED]
SCHEDULE A
[RESERVED]
SCHEDULE B
SCHEDULE B
THIRD PARTY PROJECT DOCUMENTS
Baytown
1. Energy Services Agreement, dated as of January 12, 2000, between
Bayer Corporation and Baytown Energy Center, L.P.(as
assignee of Calpine Construction Finance Company, L.P.), as amended
by Amendment of Project Documents dated as of August 13, 2002.
2. Services Agreement, dated as of January 12, 2000, between Bayer
Corporation and Baytown Energy Center, L.P. (as assignee of Calpine
Construction Finance Company, L.P.), as amended by Amendment of
Project Documents, dated as of August 13, 2002.
3. Ground Lease and Easement Agreement, dated as of January 12, 2000,
between Bayer Corporation and Baytown Energy Center, L.P. (as
assignee of Calpine Construction Finance Company, L.P.), as amended
by Amendment of Project Documents, dated as of August 13, 2002.
Xxxxxxxx
1. Energy Services Agreement, dated as of December 28, 1999, between
Cos-Mar Incorporated and Xxxxxxxx Energy LLC, as amended by
Amendment No. 1 to Energy Services Agreement, dated as of April
30, 2000, and Amendment No. 2 to Energy Services Agreement, dated as
of June 26, 2001.
2. Agreement for Purchased Power from Qualified Cogeneration Facility,
dated as of August 31, 2002, between Entergy Gulf States, Inc. and
Xxxxxxxx Energy LLC.
Channel
1. Energy Services Agreement, dated as of January 25, 2000, between
Lyondell-Citgo Refining LP and Channel Energy Center, L.P. (as
assignee of Calpine Construction Finance Company, L.P.).
2. Facility Services Agreement, dated as of January 25, 2000, between
Lyondell-Citgo Refining LP and Channel Energy Center, L.P. (as
assignee of Calpine Construction Finance Company, L.P.).
3. Operating Lease Agreement, dated as of January 25, 2000, between
Lyondell-Citgo Refining LP and Channel Energy Center, L.P. (as
assignee of Calpine Construction Finance Company, L.P.), as amended
by Amendment No. 1 to Operating Lease Agreement, dated as of March
30, 2001.
4. Amended and Restated Ground Lease and Easement Agreement, dated as
of October 30, 2001, between Lyondell-Citgo Refining LP and Channel
Energy Center, L.P.
Columbia
1. Energy Services Agreement, dated as of August 15,2000, between
Xxxxxxx Chemical Company and Columbia Energy LLC, as amended by
First Amendment to Energy Services Agreement,
dated as of August 1, 2001, and Second Amendment to Energy Services
Agreement, dated as of October 1, 2002.
2. Amended and Restated Ground Lease Agreement, dated as of August
1, 2001, between Xxxxxxx Chemical Company and Columbia Energy LLC,
as amended by First Amendment to Amended and Restated Ground Lease
Agreement, dated as of October 22, 2002.
Corpus Christi
1. Energy Services Agreement, dated as of March 23, 1999, between
Corpus Christi Cogeneration LP (as assignee of Nueces Bay Energy
LLC) and Citgo Refining and Chemicals, L.P., as amended by Amendment
No. 1 to Energy Services Agreement, dated as of March 22, 2001, and
Second Amendment of Energy Services Agreement, dated as of August
24, 2001.
2. Restated Energy Services Agreement - Steam, dated as of July
26, 2002, between Corpus Christi Cogeneration LP and Element is
Chromium L.P.
3. Energy Services Agreement, dated as of July 24, 2003, between Corpus
Christi Cogeneration LP and Flint Hills Resources, LP.
4. Project Site Lease Agreement, dated as of June 21, 1999, between
Corpus Christi Cogeneration LP (as assignee of Nueces Bay Energy
LLC) and Citgo Refining and Chemicals, L.P., as amended by First
Amendment of Project Site Lease Agreement, dated as of August
24, 2001.
Decatur
1. Second Amended and Restated Lease, Steam Sales and Shared Services
Agreement, dated as of January 31, 2001, between Solutia Inc. and
Decatur Energy Center, LLC, as amended by First Amendment to Second
Amended and Restated Lease, Steam Sales and Shared Services
Agreement, dated as of June 28, 2001, Second Amendment to Second
Amended and Restated Lease, Steam Sales and Shared Services
Agreement, dated as of August 13, 2001, Third Amendment to Second
Amended and Restated Lease, Steam Sales and Shared Services
Agreement, dated as of October 31, 2001, Fourth Amendment to Second
Amended and Restated Lease, Steam Sales and Shared Services
Agreement, dated as of January 28, 2002, and Fifth Amendment to
Second Amended and Restated Lease, Steam Sales and Shared Services
Agreement, dated as of October 7, 2002.
2. Power Purchase Agreement, dated as of June 21, 2002, between Decatur
Energy Center, LLC and Tennessee Valley Authority.
Delta
1. Merchant Plant Lease, dated as of April 13, 2000, between The Dow
Chemical Company and Delta Energy Center, LLC (as assignee of
Calpine Construction Finance Company, L.P.), as amended by First
Amendment to Merchant Plant Lease, dated as of July 31, 2001, Second
Amendment to Merchant Plant Lease, dated as of December 14, 2001,
Third Amendment to Merchant Plant Lease, dated as of February
20, 2003, and Fourth Amendment to Merchant Plant Lease, dated as of
February 20, 2003.
2. Must-Run Service Agreement, dated as of February 10, 2003, between
Delta Energy Center LLC and California Independent System Operator
Corporation and Offer Letter from Delta Energy
Center LLC to California Independent System Operator Corporation for
Provision of RMR Services in 2004.
Freestone
None.
Los Medanos
1. Energy Purchase and Sale Agreement, dated as of December
21, 1998 between USS-POSCO Industries and Los Medanos Energy Center,
LLC (as successor in interest to Pittsburg District Energy Facility,
LLC), as amended by Modification Agreement (First Amendment to
Energy Purchase and Sale Agreement), dated as of June 30, 1999, and
Second Amendment to Energy Purchase and Sale Agreement, dated as of
April 30, 2001
2. Ground Lease Agreement, dated as of October 4, 1999, between
USS-POSCO Industries and Los Medanos Energy Center, LLC (as
successor in interest to Pittsburg District Energy Facility, LLC),
as amended by First Amendment to Ground Lease Agreement, dated as of
August 25, 2000, Second Amendment to Ground Lease Agreement, dated
as of October 30, 2000, Third Amendment to Ground Lease Agreement,
dated as of July 6, 2001, and Fourth Amendment to Ground Lease
Agreement, dated as of May 31, 2002.
3. Energy Supply Arrangements with Dow comprising: Binding Letter of
Intent, dated as of December 10, 2002, among The Dow Chemical
Company, Los Medanos Energy Center, LLC, Calpine Pittsburg, LLC, and
Delta Energy Center, LLC; Steam Supply Agreement, dated as of
December 10, 2002, between Calpine Pittsburg, LLC and Los Medanos
Energy Center, LLC; and Agreement Regarding Power and Steam Supply,
dated as of December 10, 2002, among Calpine Pittsburg, LLC, Los
Medanos Energy Center, LLC, and Delta Energy Center, LLC.
4. Amended and Restated Must-Run Service Agreement, dated June 17,
2003, between Los Medanos Energy Center, LLC and California
Independent System Operator Corporation.
Xxxxxx
1. Project Agreement, dated as of June 1, 2000, between BP Amoco
Chemical Company and Xxxxxx Energy Center, LLC (as assignee of
Calpine Construction Finance Company, L.P.), as amended by First
Amendment to Project Agreement, dated as of August 20, 2001.
2. Energy Sales Agreement, dated as of June 1, 2000, between BP Amoco
Chemical Company and Xxxxxx Energy Center, LLC (as assignee of
Calpine Construction Finance Company, L.P.), as amended by First
Amendment to Energy Sales Agreement, dated as of August 20, 2001,
and Second Amendment to Energy Sales Agreement, dated as of July 31,
2003.
3. Site Interface Agreement, dated as of September 29, 2000, between BP
Amoco Chemical Company and Xxxxxx Energy Center, LLC (as assignee of
Calpine Construction Finance Company, L.P.).
4. Land Lease, dated as of September 29, 2000, between BP Amoco
Chemical Company and Xxxxxx Energy Center, LLC (as assignee of
Calpine Construction Finance Company, L.P.), as amended by First
Amendment of Land Lease and Memorandum of Lease and Xxxxx of
Easements, dated as of August 20, 2001, and Second Amendment of Land
Lease and Memorandum of Lease and Grant of Easements, dated as of
December 13, 2001.
5. Power Purchase Agreement, dated as of June 19, 2003, between Xxxxxx
Energy Center, LLC and Tennessee Valley Authority.
Xxxxx
None.
Pastoria
1. Ground Lease, dated as of July 19, 2001, between Tejon Ranchcorp and
Pastoria Energy Facility L.L.C., as amended by Landlord
Non-disturbance and Consent Agreement, dated as of September
28, 2001.
Zion
1. Amended and Restated Fuel Conversion Services Agreement, dated as of
April 28, 2003, between Zion Energy LLC and Wisconsin Electric Power
Company.
SCHEDULE C
SCHEDULE C
LIST OF MORTGAGES/DEEDS OF TRUST
1. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by CHANNEL ENERGY CENTER, LP, a Delaware
limited partnership, for the benefit of WILMINGTON TRUST COMPANY, acting in the
capacity of collateral agent for the benefit of the Secured Parties.
2. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by CORPUS XXXXXX! COGENERATION LP, a
Delaware limited partnership, for the benefit of WILMINGTON TRUST COMPANY,
acting in the capacity of collateral agent for the benefit of the Secured
Parties.
3. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by FREESTONE POWER GENERATION, L.P., a
Texas limited partnership, for the benefit of WILMINGTON TRUST COMPANY, acting
in the capacity of collateral agent for the benefit of the Secured Parties.
4. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by BAYTOWN ENERGY CENTER, LP, a Delaware
limited partnership, for the benefit of WILMINGTON TRUST COMPANY, acting in the
capacity of collateral agent for the benefit of the Secured Parties.
5. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by XXXXXXXX ENERGY LLC, a Delaware limited
liability company, for the benefit of WILMINGTON TRUST COMPANY, acting in the
capacity of collateral agent for the benefit of the Secured Parties.
6. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by CALPINE XXXXX POWER, L.P., a Delaware
limited partnership, for the benefit of WILMINGTON TRUST COMPANY, acting in the
capacity of collateral agent for the benefit of the Secured Parties.
7. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by ZION ENERGY LLC, a Delaware limited
liability company, for the benefit of WILMINGTON TRUST COMPANY, acting in the
capacity of collateral agent for the benefit of the Secured Parties.
8. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by DECATUR ENERGY CENTER, LLC, a Delaware
limited liability company, for the benefit of WILMINGTON TRUST COMPANY, acting
in the capacity of collateral agent for the benefit of the Secured Parties.
9. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by XXXXXX ENERGY CENTER, LLC, a Delaware
limited liability company, for the benefit of WILMINGTON TRUST COMPANY, acting
in the capacity of collateral agent for the benefit of the Secured Parties.
10. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by COLUMBIA ENERGY, LLC, a Delaware limited
liability company, for the benefit of
WILMINGTON TRUST COMPANY, acting in the capacity of collateral agent for the
benefit of the Secured Parties.
11. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by LOS MEDANOS ENERGY CENTER LLC, a
Delaware limited liability company, for the benefit of WILMINGTON TRUST COMPANY,
acting in the capacity of Collateral agent for the benefit of the Secured
Parties.
12. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by DELTA ENERGY CENTER LLC, a Delaware
limited liability company, for the benefit of WILMINGTON TRUST COMPANY, acting
in the capacity of collateral agent for me benefit of the Secured Parties.
13. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
dated as of March 23, 2004, executed by PASTORIA ENERGY CENTER LLC, a Delaware
limited liability company, for the benefit of WILMINGTON TRUST COMPANY, acting
in the capacity of collateral agent for the benefit of the Secured Parties.
SCHEDULE C1
SCHEDULE C1
SUBSIDIARIES OWNING QUALIFYING FACILITIES
1. Baytown Energy Center, LP
2. Xxxxxxxx Energy LLC
3. Channel Energy Center, LP
4. Corpus Christi Cogeneration LP
5. Columbia Energy LLC
6. Decatur Energy Center, LLC
7. Los Medanos Energy Center, LLC
8. Xxxxxx Energy Center, LLC
SCHEDULE C2
SCHEDULE C2
1. Delta Energy Center, LLC
2. Goldendale Energy Center, LLC
3. Pastoria Energy Center L.L.C
4. Freestone Power Generation, L.P.
5. Calpine Xxxxx Power LP
6. Zion Energy LLC
SCHEDULE D-1A
SCHEDULE D-1A
1. WECC Fixed Price Gas Sale and Power Purchase Agreement, to be dated as of
the Closing Date, among Calpine Energy Services, L.P., Calpine
Generating Company, LLC, Delta Energy Center, LLC and Los Medanos Energy
Center, LLC.
2. Index Based Gas Sale and Power Purchase Agreement, to be dated as of the
Closing Date, among Calpine Energy Services, L.P., Calpine Generating
Company, LLC and the subsidiaries of Calpine Generating Company, LLC party
thereto.
3. Master Operation and Maintenance Agreement, to be dated as of the Closing
Date, among Calpine Generating Company, LLC, the subsidiaries of Calpine
Generating Company, LLC party thereto, and Calpine Operating Services
Company, Inc.
4. Master Maintenance Services Agreement, to be dated as of the Closing Date,
among Calpine Generating Company, LLC, the subsidiaries of Calpine
Generating Company, LLC party thereto, and Calpine Operating Services
Company, Inc.
5. Master Construction Management Agreement, to be dated as of the Closing
Date, among Calpine Generating Company, LLC, the subsidiaries of Calpine
Generating Company, LLC party thereto, and Calpine Construction Management
Company, Inc.
6. Project Undertaking and Agreement, to be dated as of the Closing Date,
among Calpine Corporation, Calpine Generating Company, LLC and the
subsidiaries of Calpine Generating Company, LLC party thereto.
SCHEDULE D-1B
SCHEDULE D-1B
1. Master Administrative Services Agreement, to be dated as of the Closing
Date, among Calpine Generating Company, LLC, the subsidiaries of Calpine
Generating Company, LLC party thereto, and Calpine Administrative Services
Company, Inc.
2. Working Capital Facility Agreement, to be dated as of the Closing Date,
among Calpine Generating Company, LLC, as the borrower, Calpine CalGen
Holdings, Inc., as the lender, and Calpine Corporation, as the lender
guarantor.
SCHEDULE D2
SCHEDULE D2
OPINION SECURITY DOCUMENTS
1. Collateral Trust Agreement, dated as of the Closing Date among Calpine
Calgen Holdings, Inc., Calpine Generating Company, LLC, CalGen Finance
Corp., CalGen Expansion Company, LLC, the Guarantors.(from time to time
listed on Schedule B thereto), Wilmington Trust FSB, as Trustee under the
Indenture, Xxxxxx Xxxxxxx Funding Corporation, Inc., as Term Loan
Administrative Agent under the Term Loan Agreement, The Bank of Nova
Scotia, as Revolving Loan Administrative Agent under the Revolving Loan
Agreement, and Wilmington Trust Company, as Collateral Agent.
2. Membership Interest Pledge Agreement, dated as of the Closing Date, among
Calpine Generating Company, LLC, Calgen Expansion Company, LLC, as
Pledgor, and Wilmington Trust Company, as Collateral Agent.
3. Membership Interest Pledge Agreement, dated as of the Closing Date, by and
among Calpine CalGen Holdings, Inc., as Pledgor, Calpine Generating
Company, LLC and Wilmington Trust Company, as Collateral Agent.
4. Security Agreement, dated as of the Closing Date, among Calpine Generating
Company, LLC, the Guarantors party thereto from time to time and
Wilmington Trust Company, as Collateral Agent,
5. Collateral Account Control Agreement, dated as of the Closing Date, among
Calpine Generating Company, LLC and Wilmington Trust Company, as
Collateral Agent and an institution reasonably acceptable to the Initial
Purchaser, as Depository Agent.
6. The Mortgages (see Schedule C for complete list).
SCHEDULE E
SCHEDULE E
CALPINE MATERIAL DOCUMENTS
Indentures
1. Indenture, dated as of May 16, 1996, as supplemented by the First
Supplemental Indenture, dated as of August 1,2000, between the
Company and State Street Bank and Trust Company (as successor to
Fleet National Bank), as Trustee, relating to $180,000,000 in
aggregate principal amount of the Company's 10-1/2% Senior Notes due
2006.
2. Indenture, dated as of July 8, 1997, as supplemented by the First
Supplemental Indenture, dated as of September 10,1997, and the
Second Supplemental Indenture, dated as of July 31,2000, between the
Company and The Bank of New York, as Trustee, relating to
$275,000,000 in aggregate principal amount of the Company's 8-3/4%
Senior Notes due 2007.
3. Indenture, dated as of March 31, 1998, as supplemented by the First
Supplemental Indenture, dated as of July 24,1998, and the Second
Supplemental Indenture, dated as of July 31,2000, between the
Company and The Bank of New York, as Trustee, relating to
$400,000,000 in aggregate principal amount of the Company's 7-7/8%
Senior Notes due 2008.
4. Indenture, dated as of March 29, 1999, as supplemented by the First
Supplemental Indenture, dated as of July 31,2000, between the
Company and The Bank of New York, as Trustee, relating to
$250,000,000 in aggregate principal amount of the Company's 7-5/8%
Senior Notes due 2006.
5. Indenture, dated as of March 29, 1999, as supplemented by the First
Supplemental Indenture, dated as of July 31, 2000, between the
Company and The Bank of New York, as Trustee, relating to
$350,000,000 in aggregate principal amount of the Company's 7-3/4%
Senior Notes due 2009.
6. Indenture, dated as of August 10, 2000, as supplemented by the First
Supplemental Indenture, dated as of September 28,2000, between the
Company and Wilmington Trust Company, as Trustee, relating to
$250,000,000 in aggregate principal amount of the Company's 8-1/4%
Senior Notes due 2005, $750,000,000 in aggregate principal amount of
the Company's 8-5/8% Senior Notes due 2010, $2,000,000,000 in
aggregate principal amount of the Company's 8-1/2% Senior Notes due
2011 and $1,200,000,000 in aggregate principal amount of the
Company's 4% Convertible Senior Notes due 2006.
7. Indenture, dated as of July 16, 2003, between the Company and
Wilmington Trust Company, as Trustee, relating to $500,000,000 in
aggregate principal amount of the Company's Second Priority Senior
Secured Floating Rate Notes due 2007.
8. Indenture, dated as of July 16, 2003, between the Company and
Wilmington Trust Company, as Trustee, relating to $1,150,000,000 in
aggregate principal amount of the Company's 8.50% Second Priority
Second Priority Notes due 2010.
9. Indenture, dated as of July 16, 2003, between the Company and
Wilmington Trust Company, as Trustee, relating to $ 1,150,000,000 in
aggregate principal amount of the Company's 8.75% Second Priority
Second Priority Notes due 2013.
10. Indenture, dated as of November 14,2003, between the Company and
Wilmington Trust Company, as Trustee, relating to $900,000,000 in
aggregate principal amount of the Company's 4.75% Contingent
Convertible Notes due 2023.
11. Indenture, dated as of November 18,2003, between the Company and
Wilmington Trust Company, as Trustee, relating to $400,000,000 in
aggregate principal amount of the Company's 9.875% Second Priority
Second Priority Notes due 2011.
Credit Agreements
1. Amended and Restated Credit Agreement, dated as of July 16, 2003, as
amended by the First Amendment to Amended and Restated Credit
Agreement, dated as of August 7, 2003, the Amendment and Waiver
Letter, dated as of August 28, 2003, the Technical Correction to
Amendment and Waiver Letter, dated as of September 5, 2003, the
Third Amendment to Amended and Restated Credit Agreement, dated as
of November 6,2003, the Fourth Amendment and Waiver to Amended and
Restated Credit Agreement, dated as of November 19, 2003, the Fifth
Amendment and Waiver to Amended and Restated Credit Agreement, dated
as of November 30, 2003, and the Technical Correction to fifth
Amendment and Waiver Letter, dated December 31, 2003, among the
Company, as Borrower, certain commercial lending institutions, as
Lenders, The Bank of Nova Scotia, as Administrative Agent, Funding
Agent, Lead Arranger and Bookrunner, Bayerische Landesbank, Cayman
Islands Branch, as Lead Arranger, Co- Bookrunner and Documentation
Agent, and ING Capital LLC and Toronto Dominion (Texas) Inc., as
Lead Arrangers, Co-Bookrunners and Co-Syndication Agents, relating
to $500,000,000 in aggregate principal or face amount of letters of
credit and revolving credit and term loans.
2. Credit Agreement, dated as of July 16, 2003, among the Company, as
Borrower, Xxxxxxx Xxxxx Credit Partners L.P., as Administrative
Agent, Sole Lead Arranger and Sole Book Runner, The Bank of Nova
Scotia, as Arranger and Syndication Agent, TD Securities (USA) Inc.,
ING (U.S.) Capital LLC and Landesbank Hessen-Thuringen, as
Co-Arrangers, and Credit Lyonnais New York Branch and Union Bank of
California, N.A., as Managing Agent, relating to $750,000,000 in
aggregate principal amount of the Company's Second Priority Term
Loans Due 2007.
3. Letter of Credit and Reimbursement Agreement, dated as of December
19, 2000, between the Company, as Borrower and Credit Suisse First
Boston, as Issuer, relating to $78,354,030 in face amount of letters
of credit.
Guarantees
1. Project Completion Guaranty, dated as of October 16,2000, by the
Company in favor of Credit Suisse First Boston, acting through its
New York Branch, as Administrative Agent for the Lenders named in
that certain Credit Agreement, dated as of October 16,2000, between
Calpine Construction Finance II, LLC and such Lenders.
2. Guaranty (Lease), dated as of August 31, 2000, by the Company in
favor of the Owner Lessor in connection with the Pasadena
Cogeneration Facility.
3. Calpine Guaranty and Payment Agreement (Tiverton), dated as of
December 19,2000, among the Company, PMCC Calpine New England
Investment LLC ("New England"), PMCC Calpine NEIM LLC ("NEIM"), and
State Street Bank and Trust Company of Connecticut, National
Association, as Indenture Trustee and as Pass Through Trustee.
4. Calpine Guaranty and Payment Agreement (Rumford), dated as of
December 19, 2000, among the Company, New England, NEIM, and State
Street Bank and Trust Company of Connecticut, National Association,
as Indenture Trustee and as Pass Through Trustee.
5. Guarantee Agreement, dated as of April 25, 2001, as amended by the
First Amendment to Guarantee Agreement, dated as of October 16,
2001, by the Company in favor of Wilmington Trust Company, as
Trustee and the Holders defined in the Indenture, dated as of April
25,2001, between Calpine Canada Energy Finance ULC and the Trustee.
6. Calpine Guaranty and Payment Agreement (South Point SP-1), dated as
of October 18, 2001, among the Company, as Guarantor, South Point
OL-1 LLC, as Owner Lessor, SBR QP-1, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
7. Calpine Guaranty and Payment Agreement (South Point SP-2), dated as
of October 18, 2001, among the Company, as Guarantor, South Point
OL-2 LLC, as Owner Lessor, SBR OP-2, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
8. Calpine Guaranty and Payment Agreement (South Point SP-3), dated as
of October 18, 2001, among the Company, as Guarantor, South Point
OL-3 LLC, as Owner Lessor, SBR OP-3, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
9. Calpine Guaranty and Payment Agreement (South Point SP-4), dated as
of October 18, 2001, among the Company, as Guarantor, South Point
OL-4 LLC, as Owner Lessor, SBR OP-4, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
10. Calpine Guaranty and Payment Agreement (Broad River BR-1), dated as
of October 18, 2001, among the Company, as Guarantor, Broad River
OL-1 LLC, as Owner Lessor, SBR QP-1, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
11. Calpine Guaranty and Payment Agreement (Broad River BR-2), dated as
of October 18, 2001, among the Company, as Guarantor, Broad River
OL-2 LLC, as Owner Lessor, SBR OP-2, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
12. Calpine Guaranty and Payment Agreement (Broad River BR-3), dated as
of October 18, 2001, among the Company, as Guarantor, Broad River
QL-3 LLC, as Owner Lessor, SBR OP-3, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
13. Calpine Guaranty and Payment Agreement (Broad River BR-4), dated as
of October 18, 2001, among the Company, as Guarantor, Broad River
OL-4 LLC, as Owner Lessor, SBR OP-4, as Owner Participant, State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Indenture Trustee, and
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as Pass
Through Trustee.
14. Calpine Guaranty and Payment Agreement (RockGen RG-1), dated as of
October 18, 2001, among the Company, as Guarantor, RockGen OL-1 LLC,
as Owner Lessor, SBR OP-1, as Owner Participant, State Street Bank
and Trust Company of Connecticut, National Association, not in its
individual capacity, but solely as Indenture Trustee, and State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Pass Through Trustee.
15. Calpine Guaranty and Payment Agreement (RockGen RG-2), dated as of
October 18, 2001, among the Company, as Guarantor, RockGen OL-2 LLC,
as Owner Lessor, SBR OP-2, as Owner Participant, State Street Bank
and Trust Company of Connecticut, National Association, not in its
individual capacity, but solely as Indenture Trustee, and State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Pass Through Trustee.
16. Calpine Guaranty and Payment Agreement (RockGen RG-3), dated as of
October 18, 2001, among the Company, as Guarantor, RockGen OL-3 LLC,
as Owner Lessor, SBR OP-3, as Owner Participant, State Street Bank
and Trust Company of Connecticut, National Association, not in its
individual capacity, but solely as Indenture Trustee, and State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Pass Through Trustee.
17. Calpine Guaranty and Payment Agreement (RockGen RG-4), dated as of
October 18, 2001, among the Company, as Guarantor, RockGen OL-4 LLC,
as Owner Lessor, SBR OP-4, as Owner Participant, State Street Bank
and Trust Company of Connecticut, National Association, not in its
individual capacity, but solely as Indenture Trustee, and State
Street Bank and Trust Company of Connecticut, National Association,
not in its individual capacity, but solely as Pass Through Trustee.
18. Guarantee Agreement, dated as of October 18, 2001, as amended by the
First Amendment to Guarantee Agreement, dated as of October 18,
2001, by the Company in favor of Wilmington Trust Company, as
Trustee for the holders under the Indenture, dated as of October 18,
2001, between Calpine Canada Energy Finance II ULC and the Trustee.
SCHEDULE F
SCHEDULE F
NON-PROJECT GUARANTORS
CalGen Expansion Company, LLC
Calpine Baytown Energy Center GP, LLC
Calpine Baytown Energy Center LP, LLC
Baytown Power GP, LLC
Baytown Power, LP
Calpine Channel Energy Center GP, LLC
Calpine Channel Energy Center LP, LLC
Channel Power GP, LLC
Channel Power, LP
Nueces Bay Energy LLC
Calpine Northbrook Southcoast Investors, LLC
Calpine Corpus Christi Energy GP, LLC
Calpine Corpus Christi Energy, LP
CalGen Project Equipment Finance Company Two, LLC
Calpine Freestone, LLC
CPN Freestone, LLC
Calpine Freestone Energy GP, LLC
Calpine Freestone Energy, LP
Calpine Power Equipment LP
CalGen Project Equipment Finance Company One, LLC
Calpine Pastoria Holdings, LLC
Calpine Xxxxx Power I, LLC
Calpine Xxxxx Power II, LLC
CalGen Project Equipment Finance Company Three, LLC
CalGen Equipment Finance Holdings, LLC
CalGen Equipment Finance Company, LLC
