AMENDMENT TO WAIVER AGREEMENT
Exhibit 10.2.1.8
Execution Copy
AMENDMENT TO WAIVER AGREEMENT
THIS AMENDMENT TO WAIVER AGREEMENT (this “Agreement”) is entered into as of the 4th day of August, 2006, by and among CALPINE CONSTRUCTION FINANCE COMPANY, L.P., a Delaware limited partnership (the “Borrower”), CALPINE HERMISTON, LLC, a Delaware limited liability company (“Calpine LLC”), CPN HERMISTON, LLC, a Delaware limited liability company (“CPN LLC”), and HERMISTON POWER PARTNERSHIP, an Oregon general partnership (the “Hermiston Partnership” and, together with Calpine LLC and CPN LLC, the “Guarantors”), the lenders party hereto (the “Lenders”), and XXXXXXX XXXXX CREDIT PARTNERS L.P., as administrative agent (together with its successors in such capacity, the “Administrative Agent”).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative Agent and the Sole Lead Arranger entered into a Credit and Guarantee Agreement, dated as of August 14, 2003 (as amended on September 12, 2003, January 13, 2004, March 5, 2004, and March 15, 2006, and as may be further amended from time to time, the “Credit Agreement”), pursuant to which the Borrower borrowed, on a non-recourse basis as described in the Credit Agreement, $385,000,000 in aggregate principal amount of First Priority Senior Secured Institutional Term Loans due 2009;
WHEREAS, the Borrower, the Guarantors, the Lenders, and the Administrative Agent entered into a Waiver Agreement dated as of June 9, 2006 (the “Waiver Agreement”) pursuant to which the Lenders waived the Specified Defaults (as defined therein); and
WHEREAS, the Borrower, the Guarantors, the Lenders, and the Administrative Agent desire to amend the Waiver Agreement as provided herein.
NOW THEREFORE, in consideration of the premises and the mutual agreements set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement
2. Amendment. Section 4 of the Waiver Agreement is hereby amended to substitute “August 11, 2006” in place of “August 4, 2006” in clause (i) thereof.
3. Conditions. The effectiveness of Section 2 of this Agreement is subject to the satisfaction of the following conditions precedent (unless specifically waived in writing by the Requisite Lenders):
(a) the Borrower and the Guarantors named as signatories hereto and the Requisite Lenders shall have executed and delivered to the Administrative Agent their respective counterparts of this Agreement;
(b) the Borrower shall have paid in cash or other immediately available funds, reimbursement of all outstanding fees and expenses of the Administrative Agent owing under Section 13.02 of the Credit Agreement as well as all other fees owing to the Administrative Agent arising under this Agreement, the Credit Agreement or any other agreement; and
(c) an amendment to waiver agreement (in form and substance reasonably acceptable to the Administrative Agent) with the Holders of Notes shall have been negotiated and shall become effective concurrently with this Agreement, provided, that any conditions to effectiveness or consideration made available to the Holders of Notes for such agreement shall be made available to the Administrative Agent and the Lenders as conditions to effectiveness of, or as consideration for, this Agreement.
4. Representations and Warranties. The Borrower and each Guarantor hereby represents and warrants to each Lender and the Administrative Agent that (a) this Agreement has been duly authorized, executed and delivered by the Borrower or Guarantor, as applicable, and constitutes its valid and legally binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of generally applicability relating to or affecting creditors’ rights and to general equity principles; (b) the execution and delivery of this Agreement (i) does not require any consent, approval, authorization or order of, or filing with, any governmental agency or body or any court, except such as have been obtained or made and are in full force and effect as of the date hereof and (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or Guarantor, as applicable, or any order of any governmental agency or body, or breach or conflict with any material agreement to which the Borrower or Guarantor, as applicable, is a party or by which the Borrower or Guarantor, as applicable, is bound; and (c) no Default or Event of Default under the Credit Agreement exists and is continuing.
5. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.
6. Continuing Effect of the Waiver Agreement and Credit Agreement. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Borrower or the Guarantors under the Waiver Agreement or Credit Agreement and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Waiver Agreement and Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrowers or the Guarantors to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Waiver Agreement or Credit Agreement in similar or
different circumstances. This Agreement shall apply and be effective only with respect to the provision of the Waiver Agreement specifically referred to herein.
7. Applicable Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of New York without regard to conflict of laws principles thereof.
8. Headings. Headings herein are include herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
9. Administrative Agent’s Expense. Without limiting any of the Administrative Agent’s rights, or any of the Borrower’s obligations under Section 13.02 of the Credit Agreement, the Borrower hereby agrees to promptly reimburse the Administrative Agent for all reasonable out-of-pocket expenses, including, without limitation, attorneys’ and paralegals fees, it has heretofore or hereafter incurred or incurs in connection with the preparation, negotiation and execution of this Agreement or any document, instrument, agreement delivered pursuant to this Agreement.
10. Preservation of Prior Representations. Notwithstanding anything herein to the contrary, all agreements, admissions, affirmations, representations, ratifications and releases by the Borrower and each Guarantor made in the Waiver Agreement dated March 15, 2006, including, but not limited to, those in Sections 6 and 8 thereof, are expressly confirmed and preserved.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
CALPINE CONSTRUCTION FINANCE
COMPANY, L.P.
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By: |
/s/ Xxxxx Xxxx |
Name: Xxxxx Xxxx
Title: Vice President
CALPINE HERMISTON, LLC
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By: |
/s/ Xxxxx Xxxx |
Name: Xxxxx Xxxx
Title: Vice President
CPN HERMISTON, LLC
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By: |
/s/ Xxxxx Xxxx |
Name: Xxxxx Xxxx
Title: Vice President
HERMISTON POWER PARTNERSHIP
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By: |
/s/ Xxxxx Xxxx |
Name: Xxxxx Xxxx
Title: Vice President
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Sole Lead Arranger,
Syndication Agent and a Lender
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By: |
/s/ Xxxxx X. Xxxxxxxxxx |
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Name: |
Xxxxx X. Xxxxxxxxxx | |
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Title: |
Authorized Signatory |
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CONSENTING LENDER:
NORTHWOODS CAPITAL VI, LIMITED
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BY: |
XXXXXX, XXXXXX & CO., L.P. | ||
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AS COLLATERAL MANAGER |
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By: |
/s/ Xxxxxxx Xxxxxxxx |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Managing Director |
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CONSENTING LENDER:
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
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By: |
/s/ Xxxxxxxx Xxxxx |
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Name: Xxxxxxxx Xxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
CITIBANK, N.A.
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By: |
/s/ Xxxxxxx X. Xxxxx |
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Name: Xxxxxxx X. Xxxxx |
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Title: Attorney-in-fact |
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CONSENTING LENDER:
CDL LOAN FUNDING LLC
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: Xxxxxxx Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
CYPRESS POINT TRADING LLC
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By: |
/s/ Xxxxxxxxx X. Xxxxxxx |
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Name: Xxxxxxxxx X. Xxxxxxx |
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Title: Assistant Vice President |
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CONSENTING LENDER:
SEMINOLE FUNDING LLC
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By: |
/s/ Xxxxxxxxx X. Xxxxxxx |
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Name: Xxxxxxxxx X. Xxxxxxx |
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Title: Assistant Vice President |
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CONSENTING LENDER:
WATCHTOWER CLO I PLC
By: Citadel Limited Partnership,
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Collateral Manager |
By: Citadel Investment Group, LLC,
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as General Partner |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
Grand Central Asset Trust, SIL Series
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx |
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Title: As attorney in fact |
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CONSENTING LENDER:
Highland Floating Rate LLC
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By: |
/s/ M. Xxxxx Xxxxxxxxx |
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Name: M. Xxxxx Xxxxxxxxx |
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Title: Treasurer |
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CONSENTING LENDER:
Atrium CDO
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
CSAM Funding I
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
CSAM Funding II
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
CSAM Funding III
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
Xxxxxx Trust
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
First Dominion Funding II
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
THE FOOTHILL GROUP INC.
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: Xxxxxx X. Xxxxxx |
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Title: Sr. VP |
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CONSENTING LENDER:
Highland Floating Rate Advantage Fund
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By: |
/s/ M. Xxxxx Xxxxxxxxx |
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Name: M. Xxxxx Xxxxxxxxx |
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Title: Treasurer |
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CONSENTING LENDER:
ELF Funding Trust I
By: Highland Capital Management, L.P., As
Collateral Manager
By: Strand Advisors, Inc., Its General Partner
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By: |
/s/ Xxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxx |
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Title: Assistant Treasurer, |
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Strand Advisors, Inc., General Partner of |
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Highland Capital Management, L.P. |
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CONSENTING LENDER:
CONTINENTAL CASUALTY COMPANY
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By: |
/s/ Xxxxxxx X. XxXxxx |
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Name: Xxxxxxx X. XxXxxx |
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Title: Vice President and Assistant Treasurer |
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CONSENTING LENDER:
MEDTRONIC INC. RETIREMENT
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
NEW JERSEY TRANSIT
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
THE NORTHERN CALIFORNIA NEWS MEDIA
GUILD RETIREMENT PLAN
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
ADVENTIST HEALTH SYSTEM
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
ILLINOIS STATE UNIVERSITIES
RETIREMENT SYSTEM
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
METROPOLITAN WEST
TOTAL RETURN BOND FUND
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: Treasurer |
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CONSENTING LENDER:
METROPOLITAN WEST HIGH YIELD BOND
FUND
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: Treasurer |
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CONSENTING LENDER:
WESTGATE STRATEGIC INCOME FUND
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: Director |
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CONSENTING LENDER:
SEI INSTITUTIONAL INVESTMENT TRUST
HIGH YIELD
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
SEI GLOBAL MASTER FUND HIGH YIELD
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
SEI INSTITUTIONAL MANAGED TRUST HIGH
YIELD BOND FUND
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By: |
/s/ Xxxxxx X. Xxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxx |
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Title: CFO of Metropolitan West Asset |
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Management, LLC, as agent |
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CONSENTING LENDER:
WATERVILLE FUNDING LLC
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By: |
/s/ Xxxxxxxxx X. Xxxxxxx |
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Name: Xxxxxxxxx X. Xxxxxxx |
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Title: Assistant Vice President |
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CONSENTING LENDER:
THE FOOTHILL GROUP, INC.
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: Xxxxxx X. Xxxxxx |
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Title: Sr. VP |
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CONSENTING LENDER:
REDWOOD CAPITAL
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By: |
/s/ Xxxxxxxx Koraten |
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Name: Xxxxxxxx Koraten |
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Title: Redwood Master Fund, Ltd. Director |
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CONSENTING LENDER:
FIELD POINT I, LTD.
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By: |
/s/ Xxxxxxx Xxxxxxxx |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
FIELD POINT II, LTD.
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By: |
/s/ Xxxxxxx Xxxxxxxx |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
SIL Loan Funding
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By: |
/s/ Xxxx Xxxxxxx |
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Name: Xxxx Xxxxxxx |
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Title: Officer |
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CONSENTING LENDER:
SIL Loan Funding
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By: |
/s/ Xxxx Xxxxxxx |
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Name: Xxxx Xxxxxxx |
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Title: Officer |
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CONSENTING LENDER:
SPCP GROUP, L.L.C.
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By: |
/s/ Xxxxxxx Xxxxxxxx |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
Stonehill Institutional Partners, L.P.
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx |
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Title: General Partner |
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CONSENTING LENDER:
Stonehill Offshore Partners, LLC
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx |
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Title: Managing Member |
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CONSENTING LENDER:
KINGS CROSS ASSET FUNDING 3 SARC
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By: |
/s/ Xxxxxx Xxxxxxxxxxx |
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Name: Xxxxxx Xxxxxxxxxxx |
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Title: Authorized Signatory |
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By: |
/s/ Xxxx Xxxx |
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Name: Xxxx Xxxx |
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Title: Authorized Signatory |
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CONSENTING LENDER:
Grand Central Asset Trust, KMT Series
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By: |
/s/ Xxx Xxxxx |
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Name: Xxx Xxxxx |
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Title: Attorney-in-fact |
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