Exhibit 10.1.1.5
LETTERHEAD OF CALPINE
October 18, 2006
TRANSMITTED VIA TELECOPIER
Deutsche Bank Trust Company | Credit Suisse |
Leveraged Loan Portfolio | Eleven Madison Avenue |
60 Wall Street | New York, NY 10010 |
New York, NY 10005 | Attention: James Moran |
Attention: Marcus Tarkington | Telecopier Number: 212-743-1878 |
Telecopier Number: 212-797-0070 | |
| |
General Electric Capital Corporation | |
6130 Stoneridge Mall Road | |
Pleasanton, CA 94588-3279 | |
Attention: Lawrence Ridgway | |
Telecopier Number: 925-730-6496 | |
Ladies and Gentlemen:
Reference is made to that certain FIRST CONSENT, WAIVER AND AMENDMENT, dated as of May 3, 2006 (the “Amendment”), to and under THE AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND GUARANTEE AGREEMENT, dated as of February 23, 2006 (the “DIP Agreement”), among (i) CALPINE CORPORATION, a Delaware corporation (the “Borrower”) which is a debtor and debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code (as defined below), (ii) each of the direct and indirect domestic Subsidiaries of Borrower designated as a Guarantor on Schedule 3.5 thereto (collectively, the “Guarantors” and together with the Borrower, the “Debtors”) and each a “Debtor”), each of which Guarantors is a debtor and a debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code (the cases of the Borrower and the Guarantors, each a “Case” and, collectively, the “Cases”), (iii) CREDIT SUISSE SECURITIES (USA) LLC and DEUTSCHE BANK SECURITIES INC. (“DBSI”), as joint syndication agents (in such capacities, collectively, the “Syndication Agents”), (iv) DEUTSCHE BANK TRUST COMPANY AMERICAS (“DB”), as administrative agent for the First Priority Lenders hereunder (in such capacity and including any successors, the “First Priority Agent”), (v) GENERAL ELECTRIC CAPITAL CORPORATION (including its successors, “GE Capital”), as Sub-Agent for the Revolving Lenders hereunder (in such capacity and including any successors, the “Sub-Agent”), (vi) CREDIT SUISSE (“CS”), as administrative agent for the Second Priority Term Lenders thereunder (in such capacity and including any successors, the “Second Priority Agent”), and, together with the First Priority Agent, the “Administrative Agents”), (vii) LANDESBANK HESSEN THÜRINGEN GIROZENTRALE, NEW YORK BRANCH, GE CAPITAL and HSH NORDBANK AG, NEW YORK BRANCH, as joint
Credit Suisse
Deutsche Bank Trust Company Americas
General Electric Capital Corporation
October 18, 2006
Page 2
documentation agents for the First Priority Lenders hereunder, and BAYERISCHE LANDESBANK, GE CAPITAL and UNION BANK OF CALIFORNIA, N.A., as joint documentation agents for the Second Priority Lenders hereunder (in such capacities and including any successors, collectively, the “Documentation Agents”), and (viii) each of the financial institutions from time to time party hereto (collectively, the “Lenders”). Capitalized terms used herein, but not otherwise defined herein, shall have the meaning ascribed to such terms in the DIP Agreement
Pursuant to Section 4.3 of the Amendment, the requirement that the Borrower deliver to the Administrative Agents and the Lenders within 90 days of the Closing Date evidence of each of (i) and (ii) below has been waived so long as delivery of such evidence takes place prior to November 1, 2006 or is extended or waived by the authority of the Administrative Agents:
| (i) | an order of the Bankruptcy Court has been obtained to Lift the Say and dissolve Calpine Capital Trust, Calpine Capital Trust II and Calpine Capital Trust III; and |
| (iii) | either (a) the Certificate of Designation for each of Calpine Philadelphia, Inc. and Philadelphia Biogas Supply, Inc. has been amended to allow for the voluntary filing of bankruptcy, to delete the liquidation preference for the preferred shareholders and to delete the right of first refusal of the preferred shareholder or (b) an order of the Bankruptcy Court has been obtained to lift the stay and authorize the dissolution of Calpine Philadelphia, Inc. and Philadelphia Biogas Supply, Inc. |
The Borrower hereby requests that the Administrative Agents waive the requirements listed in items (i) and (ii) above.
[Balance of this page intentionally left blank – Signature pages follow]
Credit Suisse
Deutsche Bank Trust Company Americas
General Electric Capital Corporation
October 18, 2006
Page 3
We request that you sign and return a copy of this letter indicating your consent to waive the requirement to complete the aforementioned actions. Should there be any business questions or comments, please do not hesitate to contact Messrs. Zamir Rauf or André Walker.
Sincerely,
CALPINE CORPORATION
| /s/ Zamir Rauf | |
| By: Zamir Rauf | |
| Its: Senior Vice President | |
Credit Suisse
Deutsche Bank Trust Company Americas
General Electric Capital Corporation
October 18, 2006
Page 4
ACKNOWLEDGED and CONSENTED to as of this 30th day of October 2006.
DEUTSCHE BANK TRUST COMPANY AMERICAS
as First Priority Agent
By: /s/ Marcus M. Tarkington | |
Name: Marcus M. Tarkington | |
Title: Director | |
By: /s/ Anca Trifan | |
Name: Anca Trifan | |
Title: Director | |
CREDIT SUISSE,
as Second Priority Agent
By: /s/ Thomas R. Cantello | |
Name: Thomas R. Cantello | |
Title: Vice President | |
By: /s/ Laurence Lapeyre | |
Name: Laurence Lapeyre | |
Title: Associate | |
Credit Suisse
Deutsche Bank Trust Company Americas
General Electric Capital Corporation
October 18, 2006
Page 5
cc: | General Counsel |
| Calpine Corporation |
| 50 West San Fernando Street |
| San Jose, CA 95113 |
| Telecopier Number: 408-995-0505 |
| |
| Kirkland & Ellis LLP |
| Citigroup Center |
| 153 East 53rd Street |
| New York, New York 10022 |
| Attn: Rick Cieri, Esq. |
| Telecopier Number: 212-446-4900 |
| |
| Simpson Thacher & Bartlett LLP |
| 425 Lexington Avenue |
| New York, NY 10017 |
| Attention: Peter V. Pantaleo, Esq. |
| Telecopier Number: 2123-455-2502 |
| |
| S. Lee, Esq. |
| Telecopier Number: 212.455.2502 |
| |
| D. Mack, Esq. |
| Telecopier Number: 212.455.2502 |
| |
| G. Jaunal, Esq. |
| Telecopier Number: 212.860.2200 |
| |
| A. Kaufman, Esq. |
| Telecopier Number: 312.860.2200 |
