EXHIBIT 10.1.2.9
WAIVER
This WAIVER, dated as of March 5, 2004 (this "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; 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,
other than the terms "Brazos Acquisition" and "Lost Pines Proceeds", which shall
have the meanings set forth in the letter from the Borrower attached hereto as
Exhibit A (the "Lost Pines/Brazos Waiver Request Letter").
SECTION 2. Waiver of Section 3.1.1 (Payment Terms). The Agent and the
Supermajority Lenders hereby waive any violation of Section 3.1.1(c)(ii) of the
Credit Agreement occurring as a result of the application by CCFCI of the Lost
Pines Proceeds to the Brazos Acquisition rather than to the prepayment of the
outstanding Term B Loans and the reduction of the Revolving Loan Commitments.
SECTION 3. Effectiveness. This 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 Waiver;
(b) the Agent shall have received duly executed copies of this Waiver from the
Supermajority Lenders; (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 Waiver.
SECTION 4. Representations and Warranties. The Borrower hereby
represents and warrants that the representations and warranties contained in the
Credit Agreement and the statements set forth in Section A (Background) of the
Lost Pines/Brazos Waiver Request Letter will be, after giving effect to this
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 5. Continuing Effect of Credit Agreement. This 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 waived hereby, the provisions of the Credit
Agreement and the Loan Documents are and shall remain in full force and effect.
SECTION 6. Counterparts. This 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
Waiver by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
SECTION 7. Governing Law. THIS WAIVER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 8. 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 Waiver, including the fees and
disbursements of counsel to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this 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/ MICHAEL THOMAS
--------------------------------
Name: Michael Thomas
Title: SVP & Corporate Treasurer
The undersigned Guarantors hereby agree that their Guarantee as set forth in the
Security Agreement remains in full force and effect notwithstanding any
provision of this Waiver:
QUINTANA MINERALS (USA), INC.
By: /s/ MICHAEL THOMAS
------------------------------
Name: Michael Thomas
Title: SVP
JOQ CANADA, INC.
By: /s/ MICHAEL THOMAS
------------------------------
Name: Michael Thomas
Title: SVP
QUINTANA CANADA HOLDINGS, LLC
By: /s/ MICHAEL THOMAS
------------------------------
Name: Michael Thomas
Title: SVP
THE BANK OF NOVA SCOTIA,
as Agent
By: /s/ FRANK. F. SANDLER
--------------------------------
Name: Frank F. Sandler
Title: Managing Director
CREDIT LYONNAISE NEW YORK BRANCH
By: /s/ MARTIN C. LIVINGSTON
--------------------------------
Name: Martin C. Livingston
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ KAREN ELLIOTT
--------------------------------
Name: Karen Elliott
Title: Assistant Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ LYNN CHASIN
--------------------------------
Name: Lynn Chasin
Title: Vice President
ING CAPITAL LLC
By: /s/ ERWIN THOMET
--------------------------------
Name: Erwin Thomet
Title: Managing Director
By: /s/ CHARLES M. O'NEIL
--------------------------------
Name: Charles M. O'Neil
Title: Managing Director
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH
By: /s/ CORNELIA WINTERGERST
--------------------------------
Name: Cornelia Wintergerst
Title: Vice President
SEABOARD CLO 2000 LTD.
By: David L. Babson & Company Inc.
as Collateral Manager
By: /s/ JOHN W. STELWAGON, CFA
--------------------------------
Name: John W. Stelwagon, CFA
Title: Managing Director
KZH PONDVIEW LLC
By: /s/ HI HUA
--------------------------------
Name: Hi Hua
Title: Authorized Agent
PROTECTIVE LIFE INS. CO.
By: /s/ DIANE S. GRISWOLD
--------------------------------
Name: Diane S. Griswold
Title: AVP
ORIX FUNDING LLC
By: /s/ ANN E. MORRIS
--------------------------------
Name: Ann E. Morris
Title: Asst Vice President
FOOTHILL INCOME TRUST, L.P.
By FIT GP, LLC, its General Partner
By: /s/ DENNIS R. ASCHER
--------------------------------
Name: Dennis R. Ascher
Title: Managing Member
GALLATIN FUNDING I LTD.
By: Bear Stearns Asset Management
Inc. as its Collateral Manager
By: /s/ JONATHAN BERG
--------------------------------
Name: Jonathan Berg
Title: Vice President
This WAIVER, dated as of March [ ], 2004 (this "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").
AURUM CLO 2002-1 LTD.
BY: COLUMBIA MANAGEMENT ADVISORS,
INC., AS INVESTMENT MANAGER
By: /s/ KATHLEEN A. ZARN
--------------------------------
Name: Kathleen A. Zarn
Title: Senior Vice President
This WAIVER, dated as of March [ ], 2004 (this "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").
STEIN ROE & FARNHAM CLO I LTD.
BY: COLUMBIA MANAGEMENT ADVISORS,
INC., AS PORTFOLIO MANAGER
By: /s/ KATHLEEN A. ZARN
--------------------------------
Name: Kathleen A. Zarn
Title: Senior Vice President
LANDMARK III CDO LIMITED
BY: ALADDIN CAPITAL MANAGEMENT LLC
AS MANAGER
By: /s/ ANGELA BOZORGMIR
--------------------------------
Name: Angela A. Bozorgmir
Title: Director
LANDMARK II CDO LIMITED
BY: ALADDIN CAPITAL MANAGEMENT LLC
AS MANAGER
By: /s/ ANGELA BOZORGMIR
--------------------------------
Name: Angela A. Bozorgmir
Title: Director
LANDMARK CDO LIMITED
BY: ALADDIN CAPITAL MANAGEMENT LLC
AS MANAGER
By: /s/ ANGELA BOZORGMIR
--------------------------------
Name: Angela A. Bozorgmir
Title: Director
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ MARK ALTER
--------------------------------
Name: Mark Alter
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS III, LTD.
By: /s/ MARK ALTER
---------------------------------
Name: Mark Alter
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS IV, LTD.
By: /s/ MARK ALTER
--------------------------------
Name: Mark Alter
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS, L.P.
By: /s/ MARK ALTER
--------------------------------
Name: Mark Alter
Title: Managing Director
CARLYLE LOAN OPPORTUNITY FUND
By: /s/ MARK ALTER
--------------------------------
Name: Mark Alter
Title: Managing Director