EXHIBIT 10.2.2.3
AMENDMENT NO. 2 UNDER
CREDIT AND GUARANTEE AGREEMENT
THIS AMENDMENT NO. 2 UNDER CREDIT AND GUARANTEE AGREEMENT
(this "Amendment") is made as of the 13th day of January, 2004, by and among
CALPINE CONSTRUCTION FINANCE COMPANY, L.P., a Delaware limited partnership (the
"Company"), CALPINE HERMISTON, LLC, a Delaware limited liability company
("Calpine LLC"), CPN HERMISTON, LLC, a Delaware limited liability company ("CPN
LLC"), and HERMISTON POWER PARTNERSHIP, an Oregon general partnership (the
"Hermiston Partnership" and, together with Calpine LLC and CPN LLC, the
"Guarantors"), the lenders party hereto (the "Lenders"), and GOLDMAN SACHS
CREDIT PARTNERS L.P., as administrative agent (together with its successors in
such capacity, the "Administrative Agent") and as sole lead arranger, sole
bookrunner and syndication agent (in such capacity, the "Sole Lead Arranger").
RECITALS
WHEREAS, the Company, the Guarantors, the Lenders, the
Administrative Agent and the Sole Lead Arranger entered into a Credit and
Guarantee Agreement, dated as of August 14, 2003 (as amended on September 12,
2003, and as may be further amended from time to time, the "Credit Agreement"),
pursuant to which the Company borrowed, on a non-recourse basis as described in
the Credit Agreement, $385,000,000 in aggregate principal amount of First
Priority Senior Secured Institutional Term Loans due 2009 (the "Term Loans");
WHEREAS, the Company, the Guarantors, the Lenders and the
Administrative Agent now wish to amend the Credit Agreement in certain respects,
as hereinafter provided.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, terms
used herein which are defined in the Credit Agreement shall have the respective
meanings assigned to such terms in the Credit Agreement.
2. Amendment to Section 5.08 (Asset Sales). Section 5.08
(Asset Sales) of the Agreement is hereby amended to insert the following
sentence at the end of the second full paragraph of such section:
Notwithstanding anything herein to the contrary, the Company
is authorized to take the following actions:
(i) to place in an account (the "Lost Pines Proceeds
Account") maintained with the Collateral Agent the Net
Proceeds of the sale of the Company's 50% undivided ownership
interest in the Lost Pines facility (the "Lost Pines
Interest"), which Lost Pines Proceeds Account and the Net
Proceeds held therein shall constitute Collateral;
(ii) the Collateral Agent and the Company may execute an
escrow and exchange agreement with respect to the Lost Pines
Proceeds Account, in such form as they may agree, containing
customary terms and conditions intended to assure that the
Lost Pines Proceeds Account is a "qualified escrow account,"
and the Collateral Agent is acting either as an "escrow
holder" or a "qualified intermediary" with respect thereto, in
each case for purposes of Section 1031 of the Internal Revenue
Code of 1986, as amended; provided that nothing in this clause
(ii) shall modify the Company's obligation to maintain valid
and perfected security interest in the Collateral as provided
in this Agreement;
(iii) on or before the 181st day (or, if such date is not a
Business Day, the first Business Day thereafter) following the
consummation of the sale of the Lost Pines Interest (the
"Latest Replacement Facility Closing Date"), and subject to
obtaining the consent of the Requisite Lenders, to use such
Net Proceeds to purchase an additional natural gas-fired
combined cycle power generating facility (the "Replacement
Facility");
provided, however, that if the purchase of such Replacement
Facility is not consummated on or before the Latest
Replacement Facility Closing Date (or, if earlier, the Company
notifies the Administrative Agent in writing that the Company
is no longer pursuing the acquisition of a Replacement
Facility), then the Company shall apply the Net Proceeds of
such sale as otherwise provided in this Section 5.08 as if the
date of the sale of the Lost Pines Interest were the first
Business Day after the Latest Replacement Facility Closing
Date (or such earlier date as the Company notifies the
Administrative Agent in writing that the Company is no longer
pursuing the acquisition of a Replacement Facility).
3. Current Lenders. The Administrative Agent agrees and
acknowledges that Appendix A hereto correctly identifies, as of the date this
Amendment becomes effective in accordance with Section 5 hereof, all of the
Lenders and the aggregate outstanding Term Loans held by each Lender.
4. Representations and Warranties. The Company and each
Guarantor hereby represents and warrants to each Lender and the Administrative
Agent that (a) this Amendment has been duly authorized, executed and delivered
by the Company or Guarantor, as applicable, and constitutes its valid and
legally binding obligation, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of generally applicability relating to or affecting
creditors' rights and to general equity principles; (b) no Default or Event of
Default has occurred and is continuing under the Credit Agreement; and (c) the
execution and delivery of this Amendment (i) does not require any consent,
approval, authorization or order of, or filing with, any governmental agency or
body or any court, except such as have been obtained or made and are in full
force and effect as of the date hereof and (ii) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Company or Guarantor, as applicable, or any order of any
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governmental agency or body, or breach or conflict with any material agreement
to which the Company or Guarantor, as applicable, is a party or by which the
Company or Guarantor, as applicable, is bound.
5. Effectiveness. This Amendment shall become effective
upon receipt by the Administrative Agent of duly executed counterparts of this
Amendment signed on behalf of the Company, the Guarantors and the Requisite
Lenders.
6. Continuing Effect of the Credit Agreement. Except as
expressly set forth herein, this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Lenders, the Administrative Agent, the Company or the Guarantors
under the Credit Agreement and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing herein shall be
deemed to entitle the Company or the Guarantors to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement in
similar or different circumstances. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement specifically
referred to herein. After this Amendment becomes effective in accordance with
Section 5 hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as amended and modified hereby.
7. Applicable Law. This Amendment and the right and
obligations of the parties hereunder shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York
without regard to conflict of laws principles thereof.
8. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. The delivery of an executed signature of this Amendment
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
9. Headings. Headings herein are include herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
CALPINE CONSTRUCTION FINANCE COMPANY, L.P.
By: /s/ ERIC N. PRYOR
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Name: Eric N. Pryor
Title: Senior Vice President
CALPINE HERMISTON, LLC
By: /s/ ERIC N. PRYOR
----------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
CPN HERMISTON, LLC
By: /s/ ERIC N. PRYOR
----------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
HERMISTON POWER PARTNERSHIP
By: /s/ ERIC N. PRYOR
----------------------------------------
Name: Eric N. Pryor
Title: Senior Vice President
[EXECUTIONS CONTINUED]
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Sole Lead Arranger,
Syndication Agent and a Lender
By: /s/ ELIZABETH FISCHER
----------------------------------------
Name: Elizabeth Fischer
Title: Authorized Signatory
SANKATY HIGH YIELD PARTNERS II, L.P.
as a Lender
By: /s/ DIANE J. EXTER
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Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC as Collateral
Manager for Castle Hill III CLO, Limited
as Term Lender
as a Lender
By: /s/ DIANE J. EXTER
----------------------------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
CITIBANK N.A.
as a Lender
By: /s/ JAMES B. MAXWELL
----------------------------------------
Name: James B. Maxwell
Title: Attorney-in-Fact
FRANKLIN MUTUAL ADVISORS, LLC
as a Lender
By: /s/ BRADLEY TAKAHASI
----------------------------------------
Name: Bradley Takahashi
Title: Vice President
SEMINOLE FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
----------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
COLONIAL FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
----------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
ING SENIOR INCOME FUND
By: Aeltus Investment Management, Inc.
as its investment manager
By: /s/ CHARLES E. LEMIEUX, CFA
---------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
ING PRIME RATE TRUST
By: Aeltus Investment Management, Inc.
as its investment manager
By: /s/ CHARLES E. LEMIEUX, CFA
---------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
HBK INVESTMENTS, L.P.
as a Lender
By: /s/ DAVID HALEY
----------------------------------------
Name: David Haley
Title: Managing Director
MANCHESTER SECURITIES CORPORATION
as a Lender
By: /s/ ELLIOT GREENBERG
----------------------------------------
Name: Elliot Greenberg
Title: Vice President
PERRY PRINCIPALS INVESTMENTS, L.L.C.
as a Lender
By: /s/ NATHANIEL J. KLIPPER
----------------------------------------
Name: Nathaniel J. Klipper
Title: Managing Director
CITADEL CREDIT TRADING LTD.
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner as a Lender
By: /s/ LEVOYD E. ROBINSON, CFA
----------------------------------------
Name: Levoyd E. Robinson, CFA
Title: Managing Director
CITADEL EQUITY FUND, LTD.
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner as a Lender
By: /s/ LEVOYD E. ROBINSON, CFA
----------------------------------------
Name: Levoyd E. Robinson, CFA
Title: Managing Director
CSAM FUNDING I
as a Lender
By: /s/ DAVID H. LERNER
----------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
CSAM FUNDING II
as a Lender
By: /s/ DAVID H. LERNER
----------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
CSAM FUNDING III
as a Lender
By: /s/ DAVID H. LERNER
---------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
FIRST DOMINION FUNDING II
as a Lender
By: /s/ DAVID H. LERNER
----------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
ATRIUM CDO
as a Lender
By: /s/ DAVID H. LERNER
----------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
WATERSHED CAPITAL PARTNERS, L.P.
By: WS Partners, L.L.C.
Its General Partner
By: /s/ MERIDEE MOORE
----------------------------------------
Name: Meridee Moore
Title: Senior Managing Member
WATERSHED CAPITAL INSTITUTIONAL
PARTNERS, L.P.
By: WS Partners, L.L.C.
Its General Partner
By: /s/ MERIDEE MOORE
----------------------------------------
Name: Meridee Moore
Title: Senior Managing Member
FOOTHILL INCOME TRUST, L.P.
By: FIT GP, LLC Its General Partner
as a Lender
By: /s/ DENNIS R. ASCHER
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Name: Dennis R. Ascher
Title: Managing Member
STONEHILL OFFSHORE PARTNERS, LLC
as a Lender
By: Stonehill Advisors LLC
By: /s/ WAYNE TEETSEL
----------------------------------------
Name: Wayne Teetsel
Title: Managing Member
STONEHILL INSTITUTIONAL PARTNERS, L.P.
as a Lender
By: /s/ WAYNE TEETSEL
----------------------------------------
Name: Wayne Teetsel
Title: General Partner
APPENDIX A
TO AMENDMENT NO. 2 UNDER CREDIT AND GUARANTEE AGREEMENT
LENDERS AND TERM LOAN HOLDINGS
See attached.