EXHIBIT 10.1.2.7
FIFTH AMENDMENT AND WAIVER
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIFTH AMENDMENT AND WAIVER, dated as of December 30, 2003 (this
"Amendment and Waiver"), to the Amended and Restated Credit Agreement, dated as
of July 16, 2003 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among CALPINE CORPORATION, a
Delaware corporation (together with its successors, the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), various lead Arrangers (as defined below), and THE BANK OF NOVA
SCOTIA ("Scotia Capital"), as administrative agent and funding agent (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent have heretofore
entered into the Credit Agreement;
WHEREAS, the Borrower, the Lenders and the Agent now desire to amend
the Credit Agreement in certain respects, as hereinafter provided; and
WHEREAS, the Borrower has requested that the Agent and the Lenders
agree to waive any failure by the Borrower to comply with certain provisions of
the Credit Agreement, upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Borrower, the Lenders and the Agent
hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings set forth in the Credit Agreement.
SECTION 2. Amendment to Section 1.1 (Defined Terms). Section 1.1 of the
Credit Agreement is hereby amended by inserting the following new definition in
appropriate alphabetical order:
"Fifth Amendment" means the Fifth Amendment and Waiver to the
Amended and Restated Credit Agreement, dated as of December
30, 2003, among the Borrower, the Lenders and the Agent.
"Former Pledged Entity" means each Subsidiary of the Borrower
set forth on Annex A to the Fifth Amendment.
"Key Holding Companies" means the following direct
Subsidiaries of the Borrower:
Calpine Administrative Services Company, Inc.;
Calpine Energy Holdings, Inc.;
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Calpine Finance
Company; Calpine Fuels Corporation
Calpine Calgary, Inc.;
Calpine Operating Management Company, Inc.; and
Calpine Power Company.
SECTION 3. Amendment to Section 8.1.10 (Ownership Interests). Section
8.1.10 of the Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following text:
CCI shall at all times directly or indirectly own 100% of all
equity interests of CCEC, which shall, in turn, directly or
indirectly own 100% of the equity interests in Saltend and in
CCNGP. CCNGP shall at all times own all of the Canadian Gas
Reserves. The Borrower shall at all times own 100% of the
equity interests of CCI. The Borrower shall at all times own
100% of the equity interests of Calpine Power Company. Calpine
Power Company shall, directly or indirectly, at all times own
100% of the equity interests of CCFCI. CCI shall at all times
own 100% of the equity interests of QM, JOQ, and QCH; QM, JOQ
and QCH shall at all times own 100% of the equity interests of
CCEC; CCEC shall at all times own 100% of the equity interests
of CCRC and CCNGC; and CCRC and CCNGC shall at all times own
100% of the equity interests of CCNGP. Nothing in this Section
8.1.10 shall, however, be deemed to limit (i) the
reorganization of CCNGP's direct ownership such that the
partnership interests in CCNGP are owned and held by (A) a
Subsidiary of the Borrower formed as a result of the
consolidation or merger of CCRC and CCNGC and (B) another
Subsidiary of the Borrower or a new Subsidiary of the Borrower
formed by the Borrower or one of its Subsidiaries, (ii) the
ability of any one or more of QM, JOQ or QCH to merge or
consolidate with one or more of the others (subject only to a
delivery of a certificate in a form reasonably satisfactory to
the Agent to the effect that the merged entity would not be
liable for any Obligations of CCEF) or (iii) the ability of
the Borrower and its Subsidiaries to enter into transactions
that are contemplated by Section 3.1.1(c)(i) through (vii) and
permitted under Section 8.2.10.
SECTION 4. Amendment to Section 8.2.1 (Business Activities). Section
8.2.1 of the Credit Agreement is hereby amended by inserting the following new
sentence at the end thereof: "The Borrower shall not permit any of its Key
Holding Companies, other than Calpine Administrative Services Company, Inc.
(which shall engage only in the business of providing services to the Borrower
and its Subsidiaries), to engage in any business activity except for (i) owning
the capital stock or other similar ownership interests in other Subsidiaries of
the Borrower and (ii) non-operating activities incidental thereto."
SECTION 5. Amendment to Section 8.2.2 (Indebtedness). Section 8.2.2 of
the Credit Agreement is hereby amended by inserting the following new proviso at
the end thereof: "provided further that the Borrower shall not permit any of its
Key Holding Companies to incur any Indebtedness other than Indebtedness
permitted pursuant to clauses (b), (c), (d)(ii) or (h) above".
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SECTION 6. Amendment to Section 8.2.3 (Liens). Section 8.2.3 of the
Credit Agreement is hereby amended by inserting the following new proviso at the
end thereof: "provided further that the Borrower shall not, and shall not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon the capital stock or other similar ownership interests of any Former
Pledged Entities, other than, with respect to those Former Pledged Entities that
are owners of Facilities and no other material assets, Liens permitted pursuant
to clause (n) above."
SECTION 7. Amendment to Section 8.2.9 (Consolidation, Merger, etc.).
(a) Section 8.2.9(b) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting in lieu thereof the following new
text:
"(b) any Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, the Borrower or any other
Subsidiary, and the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other
Subsidiary; provided, however, that if any Subsidiary that is
a Pledged Entity shall merge with any other Subsidiary that is
not a Pledged Entity, such Pledged Entity shall be the
continuing Person following such merger; provided, further,
that if any Subsidiary that is a Former Pledged Entity shall
merge with any other Subsidiary that is not a Pledged Entity
or a Former Pledged Entity, such Former Pledged Entity shall
be the continuing Person following such merger; provided,
further, that if any Subsidiary that is a Pledged Entity shall
liquidate or dissolve voluntarily into, or merge into, the
Borrower or any other Subsidiary, or all or substantially all
of the assets or stock of any such Subsidiary are purchased or
otherwise acquired by the Borrower or any other Subsidiary,
such assets of such Subsidiary shall be transferred (whether
by means of merger or otherwise) (i) to the Borrower (and
pledged by the Borrower as collateral security for the
Obligations) or (ii) to another Subsidiary that is a Pledged
Entity; and provided, further, that if any Subsidiary that is
a Former Pledged Entity shall liquidate or dissolve
voluntarily into, or merge into, the Borrower or any other
Subsidiary, or all or substantially all of the assets or stock
of any such Subsidiary are purchased or otherwise acquired by
the Borrower or any other Subsidiary, such assets of such
Subsidiary shall be transferred (whether by means of merger or
otherwise) (i) to the Borrower (and pledged by the Borrower as
collateral security for the Obligations), (ii) to another
Subsidiary that is a Pledged Entity or (iii) to another
Subsidiary that is a Former Pledged Entity;"
SECTION 8. Waiver of Section 8.2.9 (Consolidation, Merger, etc.). The
Agent and the Required Lenders hereby waive any violation of the second proviso
to Section 8.2.9(b) of the Credit Agreement occurring as a result of the
transfer of all of the outstanding capital stock or other similar ownership
interests in any Former Pledged Entity to a Pledged Entity pursuant to the
restructuring transactions described in the Restructuring Waiver Request
attached hereto as Annex B (the "Restructuring Waiver Request").
SECTION 9. Consent to Transfer. Pursuant to Section 10.9(a)(ii), the
Required Lenders hereby consent to the transfer by the Borrower of the capital
stock or other similar ownership
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interests in each Former Pledged Entity to the respective Pledged Entities
indicated on Annex A hereto.
SECTION 10. Effectiveness. This Amendment and Waiver shall become
effective upon fulfillment of the following conditions precedent: (a) the
Borrower and each Guarantor shall have delivered to the Agent a duly executed
copy of this Amendment and Waiver; (b) the Agent shall have received duly
executed copies of this Amendment and Waiver from the Required Lenders; (c) the
Borrower shall have complied with the provisions of Section 8.1.9(b) of the
Credit Agreement to the extent that any entity has become a direct Subsidiary of
the Borrower as a result of the restructuring transactions described in the
Restructuring Waiver Request; (d) the Agent shall have received such other
documents as the Agent shall have reasonably requested; and (e) no Default or
Event of Default shall have occurred and be continuing on the date hereof after
giving effect to this Amendment and Waiver; provided, however, that the
amendment hereof to Section 8.1.10 (Ownership Interests) shall not become
effective until the Borrower and its Subsidiaries have completed the
restructuring transactions described in the Restructuring Waiver Request.
SECTION 11. Representations and Warranties. The Borrower hereby
represents and warrants that the representations and warranties contained in the
Credit Agreement and the Restructuring Waiver Request will be, after giving
effect to this Amendment and Waiver, true and correct in all material respects,
as if made on and as of the date hereof, except for representations and
warranties which speak as of a certain date, which representations and
warranties shall be true and correct in all material respect as of such date.
SECTION 12. Continuing Effect of Credit Agreement. This Amendment and
Waiver shall not constitute an amendment or waiver of any other provision of the
Credit Agreement or the Loan Documents not expressly referred to herein and
shall not be construed as a waiver or consent to any further or future action on
the part of the Borrower that would require a waiver or consent of the Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. All references to the Credit Agreement in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the
Credit Agreement as amended hereby.
SECTION 13. Counterparts. This Amendment and Waiver may be executed in
counterparts and all of the said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
of this Amendment and Waiver by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 14. Governing Law. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 15. Expenses. The Borrower agrees to pay or reimburse the Agent
for all of its out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of this Amendment and Waiver, including
the fees and disbursements of counsel to the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
CALPINE CORPORATION
By: /s/ XXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP & Corporate Treasurer
The undersigned Guarantors hereby consent and agree to the foregoing Fifth
Amendment and Waiver and agree that their Guarantee as set forth in the Security
Agreement remains in full force and effect:
XXXXXXXX MINERALS (USA), INC.
By: XXXXXXX XXXXXX
----------------
Name: Xxxxxxx Xxxxxx
Title: SVP
JOQ CANADA, INC.
By: XXXXXXX XXXXXX
----------------
Name: Xxxxxxx Xxxxxx
Title: SVP
XXXXXXXX CANADA HOLDINGS, LLC
By: XXXXXXX XXXXXX
-----------------
Name: Xxxxxxx Xxxxxx
Title: SVP
THE BANK OF NOVA SCOTIA,
as Agent
By: /s/ XXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH
By: /s/ XXXXXX XXXXXXXXXXX
--------------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ XXXXXXXXXXX XXXXXXXXX
--------------------------------------------
Name: Xxxxxxxxxxx Xxxxxxxxx
Title: Vice President
GALLATIN FUNDING LTD.
By: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
By: /s/ XXXXXXXX XXXX
--------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
ING CAPITAL LLC
By: /s/ XXXXX XXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: /s/ X.X. XXXXXXX, XX.
--------------------------------------------
Name: X. X. Xxxxxxx, Xx.
Title: Director
PROTECTIVE LIFE INS. CO.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: AVP
SEABOARD CLO 2000 LTD.
By: /s/ XXXX X. XXXXXXXXX, CFA
--------------------------------------------
Name: Xxxx X. Xxxxxxxxx, CFA
Title: Managing Director
TORONTO DOMINION (TEXAS), INC.
By: /s/ XXXX XXXXXX
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXXX XXXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Annex A
Current First Tier Entities and their new holding company after the restructure:
CURRENT FIRST TIER NEW HOLDING COMPANY
--------------------------------------------- -------------------------------------------
Anacapa Land Company LLC Calpine Power Company
Xxxxxxxx Springs Energy Company Calpine Power Company
Androscoggin Energy, Inc. Not Applicable / Not Moving
Bellingham Cogen, Inc. Calpine Power Company
Blue Heron Energy Center, LLC Calpine Power Company
Calpine Agnews, Inc. Calpine Power Company
Calpine Auburndale Holdings, LLC Calpine Power Company
Calpine c*Power, Inc. Calpine Administrative Services Company,
Inc.
Calpine California Holdings, Inc. Calpine Power Company
Calpine Calistoga Holdings, LLC Merged out as part of new Geysers
Structure
Calpine CCFC II Holdings, Inc. Calpine Power Company
Calpine Central, Inc. Calpine Power Company
Calpine Northbrook Corporation of Maine, Inc. Not Applicable / Not Moving
Calpine Northeast Marketing, Inc. Entity renamed Calpine Energy Holdings,
Inc. - remains a first tier subsidiary
Calpine Operating Management Company, Inc. Not Applicable / Not Moving
Calpine Pittsburgh, LLC Calpine Power Company
Calpine Power Company Not Applicable / Not Moving
Calpine Project Holdings, Inc. Calpine Power Company
Calpine Rumford I, Inc. Calpine Power Company
Calpine Rumford, Inc. Calpine Power Company
Calpine Sonoma, Inc. Merged out as part of new Geysers
Structure
Calpine Sonoran Pipeline LLC Calpine Fuels Corporation
Calpine Sumas, Inc. Calpine Power Company
Calpine Thermal Power, Inc. Merged out as part of new Geysers Structure
Calpine Tiverton I, Inc. Calpine Power Company
Calpine Tiverton, Inc. Calpine Power Company
Calpine Vapor, Inc. Calpine Power Company
Chippokes Energy Center, LLC Calpine Power Company
Calpine Dighton, Inc. Calpine Power Company
Calpine Eastern Corporation Calpine Power Company
Calpine Eastern Holdings, Inc. Calpine Operating Services Company, Inc.,
which is a subsidiary of Calpine Operating
Management Company, Inc.
Calpine Fuels Corporation Not Applicable / Not Moving
Calpine Gilroy 1, Inc. Calpine Power Company
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Calpine Gilroy 2, Inc. Calpine Power Company
Calpine Gordonsville, Inc. Sold
Calpine King City, Inc. Calpine Power Company
Calpine Marketing, LLC Calpine Power Company
Calpine Xxxxxxx XXX, Inc. Merged into Calpine Development
Holdings, Inc.
Calpine Natural Gas Holdings, LLC Calpine Fuels Corporation
Calpine Natural Gas GP, LLC Calpine Fuels Corporation
CPN Blue Spruce Holdings, LLC Merged into Calpine Development
Holdings, Inc.
CPN Cascade, Inc. Calpine Power Company
CPN Energy Services GP, Inc. Calpine Energy Holdings, Inc.
CPN Energy Services LP, Inc. Calpine Energy Holdings, Inc.
CPN Pipeline Company Calpine Fuels Corporation
CPN Telephone Flat, Inc. Calpine Power Company
GATX/Calpine-Agnews, Inc. Merged as part of Agnews Restructure into
Calpine Agnews, Inc.
Geysers Finance Company Merged out as part of new Geysers
Structure
Los Esteros Critical Energy Facility, LLC Calpine Power Company
Modoc Power, Inc. Calpine Power Company
Northwest Cogeneration, Inc. Calpine Power Company
Palmetto Energy Center, LLC Calpine Power Company
Santa Xxxx Energy Company Merged out as part of new Geysers
Structure
Xxxxxx Dryers, Inc. Calpine Power Company
Venture Acquisition Company Calpine Power Company
WRMS Engineering, Inc. Sold
ENTITIES MOVING CLOSER TO CALPINE CORPORATION AS PART OF RESTRUCTURE:
Geysers Power Company, LLC - See attached chart for restructuring details
Calpine Calgary, Inc. (to be renamed Calpine International Holdings, Inc. ) -
See attached chart for restructuring details
Silverado Geothermal Resources, Inc.
Dighton Power Associates, LP
Nissequogue Cogen Partners
TBG Cogen Partners
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KIAC Partners
Calpine Agnews, Inc.
[FLOW CHART]
