EXHIBIT 10.39
AMENDED AND RESTATED HAZARDOUS MATERIALS UNDERTAKING AND
UNSECURED INDEMNITY
This Amended and Restated Hazardous Materials Undertaking and Unsecured
Indemnity (this "Indemnity") is executed by CALPINE CORPORATION, a Delaware
corporation (the "Indemnitor") in favor of THE BANK OF NEW YORK, a New York
banking corporation ("BONY"), not in its individual capacity but solely as
Collateral Trustee under the Collateral Trust Agreement dated July 16, 2003 (the
"Collateral Trust Agreement") among Indemnitor, BONY, the 2007 Trustee, the 2010
Trustee, the 2013 Trustee, Credit Agreement Agent and Term Loan Administrative
Agent (collectively, with the Secured Debtholders and their successors and
assigns, the "Indemnified Parties"), whose address is 101 Barclay Street, New
York, New York 10286.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Collateral Trust Agreement.
Recitals
Indemnitor is party to that certain (i) Credit Agreement, dated as of
March 8, 2002 (herein, as the same may be amended, modified or supplemented from
time to time, called the "Existing 2002 Credit Agreement"), and (ii) Second
Amended and Restated Credit Agreement dated as of May 23, 2000 (herein, as the
same may be amended, modified, or supplemented from time to time, called the
"Existing 2000 Credit Agreement" and together with the Existing 2002 Credit
Agreement, collectively, the "Existing Credit Agreements").
Indemnitor, as a condition to the making of the loans pursuant to the
Existing Credit Agreement has heretofore executed and delivered to The Bank of
Nova Scotia, for itself and as agent for the Lender Parties, that certain
Hazardous Materials Undertaking and Unsecured Indemnity, dated as of May 1, 2002
(the "Existing Hazardous Materials Indemnity").
Indemnitor, the Existing Lenders and the Credit Agreement Agent have now
agreed to, among other things, (i) terminate the commitments under the Existing
2000 Credit Agreement, and (ii) amend and restate the Existing 2002 Credit
Agreement (as so amended and restated, and as the same may, from time to time
hereafter, be amended, supplemented, modified or amended and restated, the
"Amended and Restated Credit Agreement").
Indemnitor also intends to issue the 2007 Notes, the 2010 Notes, and the
2013 Notes (collectively, the "Notes") and to borrow the Term Loans pursuant to
the Term Loan Agreement. The proceeds from the issuance of the Notes, and the
borrowing of the Term Loans will be used to refinance a portion of the loans and
other indebtedness outstanding under the Existing Credit Agreements.
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The Secured Debt is secured by, among other things, all of the right,
title and interest of Indemnitor in the real property and interests comprising
the oil and gas reserves, gas, assets, power plants and any other real property
at any time owned by Indemnitor and now or hereafter mortgaged to BONY and all
fixtures, personal property and other improvements now existing or to be
constructed on any of such properties (such properties, descriptions of which
are attached hereto as Exhibit A, herein collectively called, the "Properties"),
with respect to which Indemnitor has executed counterparts of those certain
mortgages or deeds of trust dated July 16, 2003 (the "Mortgages").
The Secured Debtholders have agreed to enter into the Secured Debt
Documents only if the Indemnified Parties are indemnified and held harmless with
respect to any risk that the Properties may now or in the future be in any way
contaminated, or its use or value impacted by any Hazardous Materials, as
defined below.
It is a condition precedent to issuing the Secured Debt that Indemnitor
execute and deliver this Indemnity, which Indemnity amends and restates the
Existing Hazardous Materials Indemnity.
In order to induce the Lenders to issue the Secured Debt, and with the
full intention and understanding that the Indemnified Parties will rely hereon,
Indemnitor represents, warrants, covenants and agrees as follows:
1. CERTAIN DEFINITIONS. As used in this Indemnity, the following terms
shall have the following respective meanings:
"Hazardous Materials" means crude or refined oil or fraction thereof,
petroleum substances, petrochemical products, PCBs, asbestos, asbestos
containing materials, urea formaldehyde, salts, flammable explosives,
radioactive materials, hazardous wastes, toxic, mutagenic or pathogenic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," or "toxic substances" under any applicable
federal or state laws or regulations.
"Hazardous Materials Laws" means all federal, state or local laws,
ordinances, regulations, orders and directives pertaining to Hazardous
Materials.
2. REPRESENTATIONS AND WARRANTIES. Without limiting the generality of any
of the representations or warranties contained in the other Secured Debt
Documents, Indemnitor hereby represents and warrants to BONY and the other
Indemnified Parties that, except as disclosed on Exhibit B hereto, as of the
date of this Indemnity and continuing thereafter,
(a) the Properties and each portion thereof (including the
underlying groundwater) are not and have not been a site for the use,
generation, manufacture, discharge, assembly, processing, storage,
release, disposal or transportation to or from of any Hazardous Materials,
except in connection with
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the production, storage and transportation of crude oil, natural gas,
other hydrocarbons and petroleum, and other petroleum products in the
ordinary course of Indemnitor's business;
(b) the Properties and each portion thereof (including the
underlying groundwater) are presently in compliance in all material
respects with all Hazardous Materials Laws, including, without limitation,
those relating to exposure to Hazardous Materials, the labeling, storage
and containment of Hazardous Materials, and air, soil and surface and
ground water conditions;
(c) there have been no past, and there are no pending or, to
Indemnitor's knowledge, threatened
(i) claims, complaints, notices or requests for information
received by Indemnitor with respect to any alleged violation of any
Environmental Law, including Hazardous Materials Laws, that, singly
or in the aggregate, may reasonably be expected to result in a
Material Adverse Effect, or
(ii) complaints, notices or inquiries to Indemnitor regarding
potential liability under any Environmental Law, including Hazardous
Materials Laws, that, singly or in the aggregate, may reasonably be
expected to result in a Material Adverse Effect;
(d) there have been no unremediated Releases of Hazardous Materials
at, on or under any property (including the Properties) now or previously
owned or leased by Indemnitor that, singly or in the aggregate, result in,
or may reasonably be expected to result in, a Material Adverse Effect;
(e) Indemnitor has been issued and is in material compliance with
all permits, certificates, approvals, licenses and other governmental
authorizations relating to environmental matters and necessary for its
businesses;
(f) no property (including the Properties) now or previously owned
or leased by Indemnitor is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(g) Indemnitor has not directly transported or directly arranged for
the transportation of any Hazardous Material to any location which is
listed or proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list or which is the
subject of federal, state or local enforcement actions or other
investigations which may lead to material claims against Indemnitor for
any remedial work, damage to natural resources or personal injury,
including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property (including the Properties) now or previously owned
or leased by
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Indemnitor that, singly or in the aggregate, result in, or may reasonably
be expected to result in, a Material Adverse Effect;
(i) no conditions exist at, on or under any property (including the
Properties) now or previously owned or leased by Indemnitor which, with
the passage of time, or the giving of notice or both, would give rise to
liability under any Environmental Law, which liability would reasonably be
expected to result in a Material Adverse Effect; and
(j) to the best of the knowledge of Indemnitor, no property owned,
operated or leased by Indemnitor is located within two thousand (2,000)
feet of a significant disposal of "hazardous waste" within the meaning of
Section 25221 of the California Health and Safety Code.
3. COVENANTS. Indemnitor hereby covenants and agrees that, so long as any
obligation under any of the Secured Debt Documents or otherwise in connection
with the Secured Debt is outstanding:
(a) Indemnitor shall not permit the Properties or any portion of any
parcel thereof to be a site for the use, generation, manufacture,
discharge, assembly, processing, storage, Release, disposal or
transportation to or from of Hazardous Materials except (i) as disclosed
on Exhibit B hereto, (ii) in such quantities and as may be necessary for
the production, storage and transportation of crude oil, natural gas and
other Hydrocarbons (as defined in the Mortgages) in the ordinary course of
Indemnitor's business as conducted on the Effective Date, (iii) as
necessary or required to develop the Properties in the ordinary course of
Indemnitor's business and (iv) as may be necessary to respond to any
emergency, each of which excepted activities will be conducted in a manner
designed to minimize environmental risk;
(b) Indemnitor shall keep and maintain the Properties and each
portion of any parcel thereof in compliance in all material respects with
all Environmental Laws, including Hazardous Materials Laws (and to the
extent there are violations of such laws existing as of the date hereof
which are disclosed on Exhibit B, with the remediation plans and work
plans listed on Exhibit B), and otherwise shall not cause or permit the
Properties or any portion of any parcel thereof to be in violation, in any
material respect, of such laws;
(c) As to any claim or matter not disclosed on Exhibit B, Indemnitor
shall immediately advise BONY and each of the Secured Debt Representatives
in writing of:
(i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or
threatened against Indemnitor or the Properties pursuant to any
applicable Environmental Laws, including Hazardous Materials Laws
that, singly or in
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the aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect;
(ii) any and all material claims made or threatened by any
third party against Indemnitor or the Properties relating to any
claim, liability, cause of action, nuisance, fine, penalty, charge,
administrative or judicial order or proceeding, judgment, remedial
action or cleanup requirement, enforcement, damage, contribution,
cost recovery, compensation, loss or injury resulting from any
Hazardous Materials that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect (the
matters set forth in Sections 3(c)(i) and (ii) hereof are
hereinafter referred to as "Hazardous Materials Claims");
(iii) any change in any claim or matter disclosed in Exhibit B
that, singly or in the aggregate, have, or may reasonably be
expected to have, a Material Adverse Effect; and
(iv) Indemnitor's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Properties
that could cause the Properties or any part thereof to be classified
as "border-zone property" under the provisions of California Health
and Safety Code, Sections 25220, et seq., or any regulation adopted
in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of
the Properties under any Environmental Law, including Hazardous
Materials Laws. For the purpose of protecting the collateral given
to secure the Obligations, BONY and any Secured Debt Representative
shall have the right to join and participate in, as a party if it so
elects, any legal proceedings or actions initiated in connection
with any Hazardous Materials Claims and to have its reasonable
attorneys' fees and expenses in connection therewith paid by
Indemnitor;
(d) Indemnitor shall not, without the prior written consent (which
consent shall not be unreasonably withheld or delayed) of a Secured Debt
Representative, take any remedial action in response to the presence of
any Hazardous Materials on, under, or about the Properties (except (i)
with respect to oil, gas and other Hydrocarbons, in the ordinary course of
Indemnitor's business, or (ii) as may be necessary to respond to any
emergency), nor enter into any settlement agreement, consent decree, or
other compromise in respect of any Hazardous Material Claim in excess of
$250,000;
(e) Annually, at the time Indemnitor's audited financial statements
are required to be delivered pursuant to any Secured Debt Document,
Indemnitor shall deliver to BONY and each Secured Debt Representative a
report discussing significant issues or concerns arising, or measures
taken, during the preceding year and those contemplated for the following
year relating to compliance with Hazardous Materials Laws and
Environmental Laws, including, without limitation,
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compliance with any then effective order of the Regional Water Quality
Control Board (or other lead agency) pertaining to the characterization,
abatement and remediation of soil and groundwater contamination of the
Properties;
(f) To the extent that Indemnitor has the right to do so, Indemnitor
shall permit BONY and any Secured Debt Representative or its agents, at
the cost and expense of Indemnitor, to enter upon the Properties and all
parts thereof, for the purpose of investigating and inspecting the
condition and operation thereof, and shall permit reasonable access to the
field offices and other offices, including the principal place of
business, of Indemnitor to inspect and examine the Properties and to
inspect, review and reproduce as necessary any books, records, accounts,
contracts or other documents of Indemnitor;
(g) Without limiting the generality of the foregoing clause (f),
BONY and any Secured Debt Representative shall have the right, subject to
any existing contractual restrictions binding on Indemnitor and on
twenty-four (24) hours prior notice to Indemnitor, to cause such persons
and entities as such parties may designate to enter the Properties to
conduct (at the cost and expense of Indemnitor), or to cause Indemnitor to
conduct (at the cost and expense of Indemnitor), such tests and
investigations as such parties deem necessary to determine whether any
hazardous substance or solid waste is being generated, transported,
stored, or disposed of in accordance with applicable Environmental Laws.
Such tests and investigations may include, without limitation, underground
borings, ground water analyses and borings from the floors, ceilings and
walls of any improvements located on the Properties. This Section 3(g)
shall not be construed to affect or limit the obligations of Indemnitor
pursuant to Section 4 hereof;
(h) Neither BONY nor any Secured Debt Representative shall have any
duty to visit or observe the Properties or to conduct tests, and no site
visit, observation or testing by such parties shall impose any liability
on such parties, nor shall Indemnitor or any other Obligor be entitled to
rely on any visit, observation or testing by BONY and/or any Secured Debt
Representative in any respect. BONY and any Secured Debt Representative
may, in its discretion, disclose to Indemnitor or any other Person,
including any governmental agency, any report or finding made as a result
of, or in connection with, any site visit, observation or testing by such
parties. Indemnitor agrees that no warranty or representation is made by
these parties to Indemnitor or any other Obligor regarding the truth,
accuracy or completeness of any such report or findings that may be so
disclosed. Indemnitor also acknowledges that, depending upon the results
of any site visit, observation or testing by such parties and disclosed to
Indemnitor, Indemnitor may have a legal obligation to notify one or more
governmental agencies of such results, that such reporting requirements
are site-specific, and are to be evaluated by Indemnitor without advice or
assistance from such parties; and
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(i) Cooperate fully with any environmental consultant retained by
BONY and/or any Secured Debt Representative to prepare reports on the
Properties.
4. CONTINUING, UNSECURED INDEMNITY. Indemnitor hereby agrees to indemnify,
hold harmless and defend (by one law firm of counsel reasonably satisfactory to
BONY and/or any Secured Debt Representative unless an Event of Default shall
have occurred and be continuing) the Secured Debt Representatives and the
Indemnified Parties and their directors, officers, employees, agents, successors
and assigns (collectively, "Indemnitees") from and against any and all claims
(including without limitation third party claims for personal injury or real or
personal property damage), losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings (including informal
proceedings) and orders, judgments, remedial action requirements, enforcement
actions of any kind, and all costs and expenses incurred in connection therewith
(including but not limited to reasonable attorneys' and/or paralegals' fees and
expenses), including, but not limited to, all costs incurred in connection with
any investigation or monitoring of site conditions or any clean-up, remedial,
removal or restoration work by any federal, state or local government agency,
arising directly or indirectly, in whole or in part, out of (i) the presence on
or under the Properties of any Hazardous Materials, or any escape, seepage,
leakage, spillage, discharge, emission or Release of any Hazardous Materials on,
under or from the Properties, or (ii) any activity carried on or undertaken on
or off the Properties, whether prior to or during the term of the Secured Debt,
and whether by Indemnitor or any predecessor in title or any employees, agents,
contractors or subcontractors of Indemnitor or any predecessor in title, or any
third persons at any time occupying or present on the Properties, in connection
with the handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials that at any time are located or
present on or under or that at any time migrate, flow, percolate, diffuse or in
any way move onto or under the Properties; provided however, that nothing herein
shall require Indemnitor to indemnify Indemnitees for any matter arising solely
from the gross negligence or wilful misconduct of BONY. The foregoing indemnity
shall further apply to any residual contamination on or under the Properties, or
affecting any natural resources, and to any contamination of any property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Materials, and irrespective
of whether any of such activities were or will be undertaken in accordance with
applicable laws, regulations, codes and ordinances. Indemnitor hereby
acknowledges and agrees that the obligations of Indemnitor under this Indemnity
shall be unlimited personal obligations and also shall NOT be secured by the
Mortgages. In this regard, BONY's appraisal of the value of the Properties is
such that BONY is not willing to accept the consequences, under California's
"one form of action" rule (i.e., Section 726 of the Code of Civil Procedure) and
"Anti-Deficiency Rules" (i.e., Sections 580(a), 580(b) and 580(d) of the Code of
Civil Procedure) of inclusion of the obligations under this Indemnity among the
obligations secured by the Mortgage, and that the BONY and the other Indemnified
Parties would not issue the Secured Debt in the absence of the personal
liability undertaken by Indemnitor for these obligations. It is expressly
understood and agreed that the indemnity provided for herein shall survive: (i)
the repayment of the Secured Debt and the release of or
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reconveyance (whether full or partial) of the Mortgages; or (ii) the acquisition
of title to all or any portion of the Properties by BONY, or any successor in
interest to BONY, or any nominee or designee of any of them, by foreclosure
under or transfer in lieu of foreclosure of the Mortgages, whether or not the
same is otherwise in satisfaction of Indemnitor's obligations in connection with
the Secured Debt.
5. TIME OF THE ESSENCE. Time is of the essence of this Indemnity.
6. GOVERNING LAW. This Indemnity shall be governed by and construed in
accordance with the laws of the State of New York, except to the extent
preempted by Federal Law. Indemnitor irrevocably agrees that any legal action or
proceeding with respect to this Indemnity may be brought in a court of competent
jurisdiction of the State of New York or of the United States of America, as
BONY may elect, and by execution and delivery of this Indemnity the Indemnitor
hereby irrevocably submits to each such jurisdiction; and agrees that final
judgment against the Indemnitor in any such action or proceeding shall be
conclusive and may be enforced in any jurisdiction within the United States
including, without limitation, the State of New York, by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and of the
amount of the indebtedness owed. This Indemnity shall be governed by, construed
and enforced in accordance with the laws of the State of California. In any
action brought under or arising out of this Indemnity, Indemnitor hereby
consents to the jurisdiction of any competent court within the State of
California and consents to service of process by any means authorized by
California law.
7. INDEMNITOR WAIVERS. Indemnitor waives: (a) any defense based upon any
legal disability to enter into the Secured Debt Documents or other defense of
Indemnitor under the Secured Debt Documents; (b) any defense based on any lack
of authority of the officers, directors, partners or agents acting or purporting
to act on behalf of Indemnitor or any principal of Indemnitor, or any defect in
the formation of Indemnitor or any principal of Indemnitor; (c) any defense
based upon the application of the Secured Debt by Indemnitor for purposes other
than the purposes represented by Indemnitor to BONY or intended or understood by
BONY or Indemnitor; (d) any and all rights and defenses arising out of an
election of remedies by BONY, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed Indemnitor's rights of subrogation and reimbursement against the
principal by the operation of Section 580(d) of the California Code of Civil
Procedure or otherwise; (e) any defense based upon BONY's election, in any
proceeding instituted under the Federal Bankruptcy Code, of the application of
Section 111(b)(2) of the Federal Bankruptcy Code or any successor statute; (f)
any defense based upon any borrowing or any grant of security interest under
Section 364 of the Federal Bankruptcy Code; (g) presentment, demand, protest and
notice of any kind; (h) and the benefit of any statute of limitations affecting
the liability of Indemnitor hereunder or the enforcement hereof. Indemnitor
further waives any and all rights and defenses that Indemnitor may have because
Indemnitor's debt is secured by real property; this means, among other things,
that: (1) BONY may collect from Indemnitor without first foreclosing on any real
or personal property pledged by Indemnitor; (2) if BONY forecloses on any real
property collateral pledged by Indemnitor, then the
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amount of the debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale
price. The foregoing sentence is an unconditional and irrevocable waiver of any
rights and defenses Indemnitor may have because its debt is secured by real
property. These rights and defenses being waived by Indemnitor include, but are
not limited to, any rights or defenses based upon Section 580(a), 580(b), 580(d)
or 726 of the California Code of Civil Procedure.
8. OTHER PROVISIONS.
(a) This Indemnity is executed pursuant to the Secured Debt
Documents and shall be construed, administered and applied in accordance
with the terms and provisions thereof.
(b) All notices pursuant to this Indemnity shall be delivered at the
times, in the manner and to the addressees as set forth in any Secured
Debt Documents.
(c) No amendment to or waiver of any provision of this Indemnity nor
consent to any departure by Indemnitor herefrom shall be effective unless
the same shall be in writing and signed by BONY or a Secured Debt
Representative and Indemnitor.
(d) This Indemnity shall be binding on and for the benefit of, the
parties hereto, together with their respective successors and assigns.
(e) The obligations of Indemnitor hereunder shall survive any
termination of this Indemnity and the termination of all the Secured Debt
Obligations. The representations and warranties made by Indemnitor in this
Agreement shall survive the execution and delivery of this Indemnity.
(f) Any provision of this Indemnity which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Indemnity or affecting the validity or enforceability of such provision in
any other jurisdiction.
(g) The various headings of this Indemnity are inserted for
convenience only and shall not affect the meaning or interpretation of
this Indemnity or any provisions hereof.
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Dated: as of July 16, 2003
"Indemnitor"
CALPINE CORPORATION, a Delaware
corporation
By: /s/ B.A. Berligen
------------------------------------
Name: B.A. Berilgen
Title: Executive Vice President
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EXHIBIT A
to
HAZARDOUS MATERIAL UNDERTAKING AND UNSECURED INDEMNITY
Legal Description of Properties
EXHIBIT B
to
HAZARDOUS MATERIAL UNDERTAKING AND UNSECURED INDEMNITY
Description of Hazardous
Materials On Properties, etc.
None.