Exhibit 10.1.18
EXECUTION VERSION
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
This AMENDMENT NO. 1 to Credit Agreement, dated as of December 21, 2016 (this “Amendment”), is entered into among CALPINE CORPORATION, a Delaware corporation (the “Borrower”), the Guarantors, CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (“Credit Suisse”) as the initial New Lender (as defined below), and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity and including any successors in such capacity, the “Administrative Agent”), and amends the Credit Agreement, dated as of May 28, 2015 (as amended, supplemented or otherwise modified from time to time through the date hereof, the “Credit Agreement”) entered into among the Borrower, the institutions from time to time party thereto as Lenders (the “Lenders”), the Administrative Agent and MUFG Union Bank, N.A., as collateral agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement to effect the changes described below;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
Section 1.Amendments to the Credit Agreement
The Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as defined below), hereby amended to:
(a)delete the reference to “May 27, 2022” in the definition of “Original Termination Date” set forth in Section 1.1 of the Credit Agreement and replace such reference with “January 15, 2024”; and
(b)delete the reference to “prior to November 28, 2015” in Section 2.13(b) of the Credit Agreement and replace such reference with “prior to June 21, 2017”
Section 2.Conditions Precedent to the Effectiveness of this Amendment
This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Amendment No. 1 Effective Date”):
(a)Executed Counterparts. The Administrative Agent shall have received this Amendment, duly executed by the Borrower, the Guarantors, the initial New Lender and the Administrative Agent;
(b)Executed Consents. The Administrative Agent shall have received a consent (“Consent”) in the form of Exhibit A to this Amendment, duly executed by each Lender (including each replacement financial institution that becomes a Lender pursuant to Section 2.26 of the Credit Agreement, but excluding any Non-Consenting Lender (as defined below)) by 5:00 p.m., New York City time on December 16, 2016 (the “Consent Deadline”);
(c)No Default or Event of Default. After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing, either on the date hereof or on the Amendment No. 1 Effective Date;
(d)Representations and Warranties. The representations and warranties of the Borrower contained in Article 3 of the Credit Agreement and Section 3 of this Amendment or any other Loan Document shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the Amendment No. 1 Effective Date, as if made on and as of such date and except to the extent that such representations and warranties specifically relate to a specific date, in which case such representations and warranties shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such specific date; provided, however, that references therein to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby and after giving effect to the consents and waivers set forth herein;
(e)Officer’s Certificate. The Borrower shall have provided a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in paragraphs (c) and (d) of this Section 2;
(f)Fees and Expenses Paid. The Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses of the Lead Arranger (as defined in that certain Fee Letter dated December 14, 2016 to which the Borrower is a party) and the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Lead Arranger and the Administrative Agent with respect thereto) and all other fees then due and payable to the Lead Arranger and the Administrative Agent in connection with this Amendment; and
(g)Patriot Act. To the extent reasonably requested by the initial New Lender in writing not less than five (5) Business Days prior to the Amendment No. 1 Effective Date, the initial New Lender shall have received prior to the Amendment No. 1 Effectiveness Date, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
Section 3.Representations and Warranties
On and as of the Amendment No. 1 Effective Date, after giving effect to this Amendment, the Borrower hereby represents and warrants to the Administrative Agent and each Lender (including the initial New Lender) as follows:
(a)this Amendment has been duly authorized, executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with its terms and the Credit Agreement as amended by this Amendment constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or limiting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(b)each of the representations and warranties contained in Section 3 (Representations and Warranties) of the Credit Agreement and each other Loan Document is true and correct in all material respects (and in all respects if qualified by materiality) on and as of the Amendment No. 1 Effective Date, as if made on and as of such date and except to the extent that such representations and warranties specifically relate to a specific date, in which case such representations and warranties shall be true and correct in all material respects (and in all respects if qualified by materiality) as of such specific date; provided, however, that references therein to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended hereby and after giving effect to the consents and waivers set forth herein; and
(c)no Default or Event of Default has occurred and is continuing.
Section 4.New Lenders and Non-Consenting Lenders If any Lender under the Credit Agreement (each a “Non-Consenting Lender”) declines or fails to consent to this Amendment by failing to return an executed Consent to the Administrative Agent prior to the Consent Deadline or elects to assign a portion of its Term Loans as provided in its executed Consent, then pursuant to and in compliance with the terms of Section 2.26 of the Credit Agreement, such Lender may be replaced and its commitments and/or obligations (or a portion thereof) purchased and assumed by either a new lender (a “New Lender”) or an existing Lender which is willing to increase its Term Loans. For the avoidance of doubt, each Non-Consenting Lender will be deemed to have executed an Assignment and Assumption Agreement (“Assignment Agreement”) for all of its then outstanding Term Loans.
Section 5.Fees and Expenses
The Borrower agrees to pay in accordance with the terms of Section 9.5 of the Credit Agreement all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).
Section 6.Reference to the Effect on the Loan Documents
(a)As of the Amendment No. 1 Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument. Each of the table of contents and lists of Exhibits and Schedules of the Credit Agreement shall be amended to reflect the changes made in this Amendment as of the Amendment No. 1 Effective Date.
(b)Except as expressly amended hereby or specifically waived above, all of the terms and provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed.
(c)The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrower, the Lead Arranger or the Administrative Agent under any of the Loan Documents, nor constitute a waiver or amendment of any other provision of any of the Loan Documents or for any purpose except as expressly set forth herein.
(d)This Amendment is a Loan Document.
Section 7.Reaffirmation
Each Loan Party hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby and (ii) its guarantee of the Obligations under the Guarantee and Collateral Agreement, as applicable, and its grant of Liens on the Collateral to secure the Obligations pursuant to the Security Documents.
Section 8.Execution in Counterparts
This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by telecopy shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 9.Governing Law
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 10.Section Titles
The section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto, except when used to reference a section. Any reference to the number of a clause, sub-clause or subsection of any Loan Document immediately followed by a reference in parenthesis to the title of the section of such Loan Document containing such clause, sub-clause or subsection is a reference to such clause, sub-clause or subsection and not to the entire section; provided, however, that, in case of direct conflict between the reference to the title and the reference to the number of such section, the reference to the title shall govern absent manifest error. If any reference to the number of a section (but not to any clause, sub-clause or subsection thereof) of any Loan Document is followed immediately by a reference in parenthesis to the title of a section of any Loan Document, the title reference shall govern in case of direct conflict absent manifest error.
Section 11.Notices
All communications and notices hereunder shall be given as provided in the Credit Agreement.
Section 12.Severability
The fact that any term or provision of this Amendment is held invalid, illegal or unenforceable as to any person in any situation in any jurisdiction shall not affect the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability or legality of such offending term or provision in any other situation or jurisdiction or as applied to any person.
Section 13.Successors
The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
Section 14.Jurisdiction; Waiver of Jury Trial
The jurisdiction and waiver of right to trial by jury provisions in Section 9.12 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers and general partners thereunto duly authorized, as of the date first written above.
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| | |
| | CALPINE CORPORATION |
| | | |
| | By: | /s/ ZAMIR RAUF |
| | | Name: Zamir Rauf
Title: Executive Vice President and Chief Financial Officer |
|
| | |
| | THE GUARANTORS SET FORTH ON |
| | ANNEX I & II TO THIS SIGNATURE |
| | PAGE |
| | | |
| | By: | /s/ ZAMIR RAUF |
| | | Name: Zamir Rauf
Title: Executive Vice President and Chief Financial Officer |
|
| | |
| | THE GUARANTORS SET FORTH ON |
| | ANNEX III & IV TO THIS SIGNATURE |
| | PAGE |
| | | |
| | By: | /s/ HETHER BENJAMIN BROWN |
| | | Name: Hether Benjamin-Brown
Title: Vice President |
[Signature Page to Calpine Corporation May 2015 Credit Agreement
Amendment No. 1]
ANNEX I
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|
| Name of Guarantor |
| Anacapa Land Company, LLC |
| Anderson Springs Energy Company |
| Aviation Funding Corp. |
| Baytown Energy Center, LLC |
| CalGen Expansion Company, LLC |
| CalGen Project Equipment Finance Company Three, LLC |
| Calpine Administrative Services Company, Inc. |
| Calpine Auburndale Holdings, LLC |
| Calpine Bethlehem, LLC |
| Calpine c*Power, Inc. |
| Calpine CalGen Holdings, Inc. |
| Calpine Calistoga Holdings, LLC |
| Calpine Central Texas GP, Inc. |
| Calpine Central, Inc. |
| Calpine Central-Texas, Inc. |
| Calpine Cogeneration Corporation |
| Calpine Eastern Corporation |
| Calpine Edinburg, Inc. |
| Calpine Energy Services GP, LLC |
| Calpine Energy Services LP, LLC |
| Calpine Energy Services, L.P. |
| Calpine Fuels Corporation |
| Calpine Generating Company, LLC |
| Calpine Geysers Company, L.P. |
| Calpine Gilroy 1, Inc. |
| Calpine Gilroy 2, Inc. |
| Calpine Global Services Company, Inc. |
| Calpine Hidalgo Energy Center, L.P. |
| Calpine Hidalgo Holdings, Inc. |
| Calpine Hidalgo, Inc. |
| Calpine Kennedy Operators, Inc. |
| Calpine KIA, Inc. |
| Calpine King City, Inc. |
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| Name of Guarantor |
| Calpine King City, LLC |
| Calpine Leasing Inc. |
| Calpine Long Island, Inc. |
| Calpine Magic Valley Pipeline, LLC |
| Calpine Mid-Atlantic Energy, LLC |
| Calpine Mid-Atlantic Generation, LLC |
| Calpine Mid-Atlantic Marketing, LLC |
| Calpine MVP, LLC |
| Calpine Newark, LLC |
| Calpine New Jersey Generation, LLC |
| Calpine Northbrook Holdings Corporation |
| Calpine Northbrook Investors, LLC |
| Calpine Northbrook Project Holdings, LLC |
| Calpine Operations Management Company, Inc. |
| Calpine Power Company |
| Calpine Power Management, LLC |
| Calpine Power, Inc. |
| Calpine PowerAmerica, LLC |
| Calpine PowerAmerica-CA, LLC |
| Calpine PowerAmerica-ME, LLC |
| Calpine Project Holdings, Inc. |
| Calpine Solar, LLC |
| Calpine Stony Brook Operators, Inc. |
| Calpine Stony Brook, Inc. |
| Calpine TCCL Holdings, Inc. |
| Calpine Texas Pipeline GP, Inc. |
| Calpine Texas Pipeline LP, Inc. |
| Calpine Texas Pipeline, L.P. |
| Calpine University Power, Inc. |
| Calpine Vineland Solar, LLC |
| CES Marketing IX, LLC |
| CES Marketing X, LLC |
| Channel Energy Center, LLC |
| Corpus Christi Cogeneration, LLC |
CPN 3rd Turbine, Inc. |
|
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| Name of Guarantor |
| CPN Acadia, Inc. |
| CPN Cascade, Inc. |
| CPN Clear Lake, Inc. |
| CPN Pipeline Company |
| CPN Pryor Funding Corporation |
| CPN Telephone Flat, Inc. |
| Delta Energy Center, LLC |
| Freestone Power Generation, LLC |
| GEC Bethpage Inc. |
| Geysers Power Company, LLC |
| Geysers Power I Company |
| Hillabee Energy Center, LLC |
| Idlewild Fuel Management Corp. |
| JMC Bethpage, Inc. |
| Los Medanos Energy Center LLC |
| Magic Valley Pipeline, L.P. |
| Modoc Power, Inc. |
| New Development Holdings, LLC |
| NTC Five, Inc. |
| Pastoria Energy Center, LLC |
| Pastoria Energy Facility L.L.C. |
| Pine Bluff Energy, LLC |
| RockGen Energy LLC |
| South Point Energy Center, LLC |
| South Point Holdings, LLC |
| Stony Brook Cogeneration, Inc. |
| Stony Brook Fuel Management Corp. |
| Sutter Dryers, Inc. |
| Texas City Cogeneration, LLC |
| Texas Cogeneration Five, Inc. |
| Texas Cogeneration One Company |
| Thermal Power Company |
| Zion Energy LLC |
ANNEX II
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|
| Name of Guarantor |
| Deer Park Energy Center LLC |
| Deer Park Holdings, LLC |
| Metcalf Energy Center, LLC |
| Metcalf Holdings, LLC |
ANNEX III
|
|
| Name of Guarantor |
| Calpine Construction Management Company, Inc. |
| Calpine Mid-Atlantic Operating, LLC |
ANNEX IV
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|
| Name of Guarantor |
| Calpine Operating Services Company, Inc. |
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| | |
| | CREDIT SUISSE AG, CAYMAN |
| | ISLANDS BRANCH, as initial New Lender |
| | |
| | By: | /s/ MIKHAIL FAYBUSOVICH |
| | | Name: Mikhail Faybusovich
Title: Authorized Signatory |
| | | |
| | By: | /s/ WARREN VAN HEYST |
| | | Name: Warren Van Heyst
Title: Authorized Signatory |
[Signature Page to Calpine Corporation May 2015 Credit Agreement Amendment No. 1]
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| | |
| | MORGAN STANLEY SENIOR FUNDING, INC. |
| | as Administrative Agent |
| | |
| | By: | /s/ CODY GUNSCH |
| | | Name: Cody Gunsch
Title: Vice President |
[Signature Page to Calpine Corporation May 2015 Credit Agreement Amendment No. 1]
Exhibit A
CONSENT TO AMENDMENT NO. 1
CONSENT (this “Consent”) TO AMENDMENT NO. 1 (“Amendment”) to the Credit Agreement, dated as of May 28, 2015 (as amended to the date hereof and as the same may be further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) entered into among the Borrower, the institutions from time to time party thereto as Lenders (the “Lenders”), the Administrative Agent and MUFG Union Bank, N.A., as collateral agent. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Amendment.
Date of Credit Agreement: ¨ May 28, 2015
Fill in existing position (if any): $ _____________________
Check the first or second box below
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| ¨ | Consent: The undersigned Lender (including any New Lender) hereby irrevocably and unconditionally approves of and consents to the Amendment with respect to all Term Loans held by such Lender. |
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| ¨ | Decline: The undersigned Lender declines to participate and elects to have all of the outstanding principal amount of the Term Loans held by such Lender be assigned on the Amendment No. 1 Effective Date to a New Lender and is hereby deemed to execute the Assignment Agreement. |
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Name of Lender: ____________________________________________________
by ____________________________________________________
Name: Title: |
For any Institution requiring a second signature line: by ____________________________________________________
Name: Title: |
