EXHIBIT 10.30
AMENDMENT NO. 1 UNDER
Credit and guarantee agreement
THIS AMENDMENT NO. 1 UNDER CREDIT AND GUARANTEE AGREEMENT (this
"Amendment") is made as of the 12th day of September, 2003, 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 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 5.05 (Restricted Payments). Section 5.05
of the Credit Agreement is hereby amended to insert the following as the last
sentence of such section:
Notwithstanding the foregoing, the Company may
distribute to the direct or indirect holders of the
Company's Equity Interests in their capacity as such
the net proceeds from any issuance of Indebtedness
incurred pursuant to Section 5.07(b)(iii) (other than
Permitted Refinancing Indebtedness incurred pursuant to
Section 5.07(b)(iii) to refund, refinance or replace
any Indebtedness previously incurred pursuant to
Section 5.07(b)(iii)).
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 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
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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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
CALPINE HERMISTON, LLC.
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
CPN HERMISTON, LLC
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
HERMISTON POWER PARTNERSHIP
By: /s/ ZAMIR RAUF
---------------------------------------
Name: Zamir Rauf
Title: Vice President
[EXECUTIONS CONTINUED]
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Sole Lead
Arranger, Syndication Agent and a Lender
By: /s/ RT WAGNER
---------------------------------------
Name: Robert Wagner
Title: Authorized Signatory
Citadel Jackson Investment Fund Ltd.
By: Citadel Limited Partnership,
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
---------------------------------------
Name: Levoyd F. Robinson, CFA
Title: Managing Director
CITIBANK, N.A.
as a Lender
By: /s/ JAMES B. MAXWELL
---------------------------------------
Name: James B. Maxwell
Title: Attorney-in-fact
FIRST DOMINION FUNDING II
as a Lender
By: /s/ [Illegible]
---------------------------------------
Name:
Title:
FIRST DOMINION FUNDING III
as a Lender
By: /s/ [Illegible)
---------------------------------------
Name:
Title:
ATRIUM
as a Lender
By: /s/ [Illegible]
---------------------------------------
Name:
Title:
CSAM I
as a Lender
By: /s/ [Illegible]
---------------------------------------
Name:
Title:
CSAM II
as a Lender
By: /s/ [Illegible]
---------------------------------------
Name:
Title:
CSAM III
as a Lender
By: /s/ [Illegible]
---------------------------------------
Name:
Title:
Manchester Securities Corporation
as a Lender
By: /s/ ELLIOT GREENBERG
---------------------------------------
Name: Elliot Greenberg
Title: Vice-President
Foothill Income Trust, L.P.
as a Lender
By: FIT GP, LLC, its general partner
By: /s/ DENNIS R. ASCHER
---------------------------------------
Name: Dennis Ascher
Title: Managing Member
FRANKLIN MUTUAL ADVISERS, LLC
as a Lender
By: /s/ KATHLEEN PINTARELLI
---------------------------------------
Name: Kathleen Pintarelli
Title: Authorized Signatory
SEMINOLE FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
---------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
HBK Master Fund L.P.
as a Lender
By: HBK Investments L.P.
Investment Advisor
By: /s/ DAVID C. HALEY
---------------------------------------
Name: David C. Haley
Title: Authorized Signatory
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ GORDON R. COOK
---------------------------------------
Name: Gordon R. Cook
Title: Managing Director
BALANCED HIGH-YIELD FUND II, LTD.
BY: ING Capital Advisors LLC,
as Asset Manager
By: /s/ GORDON R. COOK
---------------------------------------
Name: Gordon R. Cook
Title: Managing Director
ENDURANCE CLO I, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ GORDON R. COOK
---------------------------------------
Name: Gordon R. Cook
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ GORDON R. COOK
---------------------------------------
Name: Gordon R. Cook
Title: Managing Director
ING-ORYX CLO, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ GORDON R. COOK
---------------------------------------
Name: Gordon R. Cook
Title: Managing Director
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Investment Manager
By: /s/ GORDON R. COOK
---------------------------------------
Name: Gordon R. Cook
Title: Managing Director
ING PRIME RATE TRUST
By: Aeltus Investment Management, Inc.
as its investment manager
By: /s/ CHARLES E. LEMIEUX
---------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
ING SENIOR INCOME FUND
By: Aeltus Investment Management, Inc.
as its investment manager
By: /s/ CHARLES E. LEMIEUX
---------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
Marathon Special Opportunity Fund
as a Lender
By: /s/ HILARY PARK
---------------------------------------
Name: Hilary Park
Title: Sr Vice President
SOF INVESTMENTS, L.P.
as a Lender
By: /s/ MARC R. LISKER
---------------------------------------
Name: Marc R. Lisker
Title: General Counsel
Metropolitan West Total Return Bond Fund
as a Lender
By: /s/ DAVID LIPPMAN
---------------------------------------
Name: David Lippman
Title: Managing Director
Metropolitan West High Yield Bond Fund
as a Lender
By: /s/ DAVID LIPPMAN
---------------------------------------
Name: David Lippman
Title: Managing Director
Redwood Capital Management, LLC
as a Lender
By: /s/ JONATHAN KOLATCH
---------------------------------------
Name: Jonathan Kolatch
Title: Principal
COLONIAL FUNDING LLC
as a Lender
By: /s/ ANN E. MORRIS
---------------------------------------
Name: Ann E. Morris
Title: Asst Vice President
Watershed Capital Partners, L.P.
By: WS Partners, L.L.C.
Its General Partner as a Lender
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
APPENDIX A
to Amendment No. 1 under Credit and Guarantee Agreement
Lenders and Term Loan Holdings
See attached.