Exhibit 10.16
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of August 7, 2003 (this "Amendment"), to
the Amended and Restated Credit Agreement, dated as of July 16, 2003 (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among CALPINE CORPORATION, a Delaware corporation (together
with its successors, the "Borrower"), the various financial institutions as are
or may become parties hereto (collectively, the "Lenders"), various lead
Arrangers (as defined below), and THE BANK OF NOVA SCOTIA ("Scotia Capital"), as
administrative agent and funding agent (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent have heretofore
entered into the Credit Agreement; and
WHEREAS, the Borrower, the Lenders and the Agent now desire to amend
the Credit Agreement in certain respects, as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Borrower, the Lenders and the Agent
hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings set forth in the Credit Agreement.
SECTION 2. Amendment to Section 1.1 (Defined Terms). Section 1.1 of the
Credit Agreement is hereby amended by deleting therefrom the definition of
"Applicable Margin" in its entirety and substituting in place thereof the
following new definition:
"Applicable Margin" means (i) for any Revolving Loan that is a Base
Rate Loan, 3.00% per annum, (ii) for any Revolving Loan that is a LIBO Rate Loan
or L/C Advance, 4.00% per annum, (iii) for any Term B Loan that is a Base Rate
Loan, 2.50% per annum, and (iv) for any Term B Loan that is a LIBO Rate Loan,
3.50% per annum.
SECTION 3. Amendment to Section 3.3.3 (Letter of Credit Fee). Section
3.3.3 of the Credit Agreement is hereby amended by deleting the text of such
Section 3.3.3 in its entirety and substituting in its place the following new
text:
"The Borrower agrees to pay to the Agent, for the account of the
Revolving Lenders, for each Letter of Credit for the period from and including
the date of the issuance of such Letter of Credit to (and including) the date
upon which (or on the next succeeding Business Day upon which) such Letter of
Credit expires or is returned to the Issuer that issued such Letter of Credit, a
fee, in Dollars, on the average daily stated amount of such Letter of Credit (or
the Equivalent Amount thereof with respect to Foreign Currency Letters of
Credit) calculated at a per annum rate equal to the Applicable Margin for
Revolving Loans that are LIBO Rate Loans in effect from time to time. Such fee
shall be payable by the Borrower in arrears on each Quarterly Payment Date, and
on the date of termination or expiry of the last Letter of Credit outstanding
hereunder (for any period then ending for which such fee shall not theretofore
have been paid), commencing on the first such date after the issuance of such
Letter of Credit."
SECTION 4. Effectiveness. This Amendment shall become effective upon
fulfillment of the following conditions precedent: (a) the Borrower shall have
delivered to the Agent a duly executed copy of this Amendment, (b) the Agent
shall have received duly executed copies of this Amendment from the Required
Lenders and each Term B Lender, (c) the Agent shall have received such other
documents as the Agent shall have reasonably requested, and (d) no Default or
Event of Default shall have occurred and be continuing on the date hereof after
giving effect to this Amendment.
SECTION 5. Representations and Warranties. The Borrower hereby
represents and warrants that the representations and warranties contained in the
Credit Agreement (except those which expressly speak as of a certain date) will
be, after giving effect to this Amendment, true and correct in all material
respects, as if made on and as of the date hereof.
SECTION 6. Continuing Effect of Credit Agreement. This Amendment shall
not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of the Borrower that would require a waiver or consent of the Agent and/or the
Lenders. Except as expressly amended hereby, the provisions of the Credit
Agreement and the Loan Documents shall remain in full force and effect. All
references to the Credit Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Credit Agreement as amended
hereby.
SECTION 7. Counterparts. This Amendment may be executed in counterparts
and all of the said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page of this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
SECTION 8. Governing Law. THIS AMENDMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 9. Expenses. The Borrower agrees to pay or reimburse the Agent
for all of its out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of this Amendment, including the fees and
disbursements of counsel to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CALPINE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP & Corporate Treasurer
THE BANK OF NOVA SCOTIA,
as Agent
By: /s/ Xxxxx X. X'Xxxxx
-----------------------------------
Name: Xxxxx X. X'Xxxxx
Title: Managing Director
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH,
as Lender
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: First Vice President
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Lender
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
ING CAPITAL LLC,
as Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
/s/ X. X. Xxxxxxx, Xx.
Name: X.X. Xxxxxxx, Xx.
Title: Director
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /s/ Xxxxx Read
-----------------------------------
Name: Xxxxx Read
Title: Vice President
TORONTO DOMINION (TEXAS) INC.,
as Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
American Express Certificate Company
By: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
Centurion CDO II, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
Centurion CDO VI, Ltd.
By: American Express Asset Management
Group, Inc. As Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
ELT LTD., as Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
FOOTHILL INCOME TRUST, L.P.,
as Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
GALLATIN FUNDING I LTD.,
By: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
By: /s/ Xxxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
HIGHLAND OFFSHORE PARTNERS, L.P.,
as Lender
By: Highland Capital Management, L.P.
As General Partner
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
Highland Capital Management, L.P.
IDS Life Insurance Company
By: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
JUPITER LOAN FUNDING LLC,
as Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst Vice President
ORIX FINANCE CORP. I,
as Lender
By: /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Authorized Representative
PROTECTIVE LIFE INSURANCE COMPANY,
as Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. VP, CIO & Treasurer
SEABOARD CLO 2000, LTD.,
as Lender, by ORIX Capital Markets, LLC
Its Collateral Manager
By: /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-----------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Managing Director
SEMINOLE FUNDING LLC,
as Lender
By: ___________________________________
Name:
Title:
Sequils-Centurion V, Ltd.
By: American Express Asset
Management Group, Inc.
as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
STANWICH LOAN FUNDING LLC,
as Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst Vice President
VENTURE CDO 2002, LIMITED
By its investment advisor,
Barclays Capital Asset
Management Limited,
By its sub-advisor, Barclays Bank PLC,
New York Branch
as Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
VENTURE II CDO 2002,
LIMITED By its investment
advisor, Barclays Bank PLC,
New York Branch
as Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
WINGED FOOT FUNDING TRUST,
as Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
AIMCO CDO SERIES 2000-A,
as Lender
By: /s/ [illegible]
-----------------------------------
Name:
Title:
By: /s/ [illegible]
ALLSTATE LIFE INSURANCE COMPANY,
as Lender
By: /s/ [illegible]
-----------------------------------
Name:
Title:
By: /s/ [illegible]
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
BALANCED HIGH YIELD FUND II LTD.
BY: ING Capital Advisors LLC,
as Asset Manager
BY: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
ENDURANCE CLO I, LTD.
c/o ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS II, LTD.,
as Lender
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS III, LTD.,
as Lender
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS IV, LTD.,
as Lender
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS, L.P.,
as Lender
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE LOAN OPPORTUNITY FUND,
as Lender
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
FRANKLIN CLO I, LIMITED,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN CLO II, LIMITED,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN CLO III, LIMITED,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN CLO IV, LIMITED,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN FLOATING RATE DAILY
ACCESS FUND, as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN FLOATING RATE MASTER SERIES,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN FLOATING RATE TRUST,
as Lender
By: /s/ Xxxxxxxx Xxx
-----------------------------------
Name: Xxxxxxxx Xxx
Title: Vice President
GLENEAGLES TRADING LLC,
as Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst Vice President
ING-ORYX CLO, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
NEMEAN CLO, LTD.
BY: ING Capital Advisors LLC,
as Investment Manager
BY: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
KATONAH I, LTD.,
as Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
KATONAH II, LTD.,
as Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
KATONAH III, LTD.,
as Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
KATONAH IV, LTD.,
as Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
KZH CNC LLC,
as Lender
By: ___________________________________
Name:
Title:
KZH CYPRESSTREE-1 LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH RIVERSIDE LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH SOLEIL LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Hi Hua
-----------------------------------
Name: Hi Hua
Title: Authorized Agent
XXXXXX COMMERCIAL PAPER INC.,
as Lender
By: ___________________________________
Name:
Title:
MAGNETITE IV CLO, LIMITED,
as Lender
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
MAGNETITE V CLO, LIMITED,
as Lender
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
NORTHWOODS CAPITAL II, LIMITED,
as Lender
By: Xxxxxx, Xxxxxx & Co., L.P.
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOODS CAPITAL III, LIMITED,
as Lender
By: Xxxxxx, Xxxxxx & Co., L.P.
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOODS CAPITAL, LIMITED,
as Lender
By: Xxxxxx, Xxxxxx & Co., L.P.
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
OAK HILL CREDIT PARTNERS I, LIMITED,
as Lender
By: Oak Hill CLO Management I, LLC,
As Investment Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL CREDIT PARTNERS II, LIMITED,
as Lender
By: Oak Hill CLO Management II, LLC,
As Investment Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.,
as Lender
By: Oak Hill Securities GenPar II, L.P.
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND, L.P.,
as Lender
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OCTAGON INVESTMENT PARTNERS III LTD.,
as Lender
By: ___________________________________
Name:
Title:
PACIFICA CDO II, LTD,
as Lender
By: /s/ Xxx Xxxxxxx
-----------------------------------
Name: Xxx Xxxxxxx
Title: Sr VP
SUNTRUST BANK,
as Lender
By: ___________________________________
Name:
Title:
TRUMBULL THC, LTD.,
as Lender
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Attorney In Fact
