EXHIBIT 10.5
EXECUTION COPY
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT, dated as of November 6, 2003 (this "Amendment"), to
the Amended and Restated Credit Agreement, dated as of July 16, 2003 (as amended
by the First Amendment thereto, dated as of August 7, 2003, and the Amendment
and Waiver, dated as of August 28, and 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, the Lenders and the Agent now desire to amend the
Credit Agreement in certain respects, as hereinafter provided;
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.
SECTION 2. Amendment to Section 8.2.10 (Asset Dispositions, etc.). Section
8.2.10 of the Credit Agreement is hereby amended by:
(a) (i) deleting the text "(a) or (b) above" in the second line of
clause (c) thereof, (ii) substituting "(a), (b) or (d) of this Section
8.2.10" for such deleted text and (ii) substituting the period at the end
of such clause (c) with "; or".
(b) inserting a new clause (d) after clause (c) thereof as follows:
"(d) such sale, transfer, lease, contribution or conveyance is (i) a
contribution of Pledged Power Project assets to an Investment Joint Venture
and (ii) made in connection with an Investment permitted by Section
8.2.5(c).".
SECTION 3. Effectiveness. This Amendment 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
Amendment; (b) the Agent shall have received duly executed copies of this
Amendment from the Required Lenders; (c) the Agent shall have received such
other documents as the Agent shall have reasonably requested; and (g) no Default
or Event of Default shall have occurred and be continuing on the date hereof
after giving effect to this Amendment.
SECTION 4. Representations and Warranties. The Borrower hereby represents
and warrants that the representations and warranties contained in the Credit
Agreement will be, after giving effect to this Amendment, 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 Amendment 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 amended hereby, the provisions of the Credit
Agreement and the Loan Documents shall remain in full force and effect. All
references to the Credit Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Credit Agreement as amended
hereby.
SECTION 6. Counterparts. This Amendment 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
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
SECTION 7. Governing Law. THIS AMENDMENT 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 Amendment, including the fees and
disbursements of counsel to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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 consent and agree to the foregoing Third
Amendment and agree that their Guarantee as set forth in the Security Agreement
remains in full force and effect:
QUINTANA MINERALS (USA), INC.
By: /s/ MICHAEL THOMAS
------------------------------
Name:
Title:
JOQ CANADA, INC.
By: /s/ MICHAEL THOMAS
------------------------------
Name:
Title:
QUINTANA CANADA HOLDINGS, LLC
By: /s/ MICHAEL THOMAS
------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Agent
By: /s/ PAUL V. FARRELL
-------------------------------
Name: Paul V. Farrell
Title: Managing Director
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH
By: /s/ OLIVER HILDENBRAND
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Name: Oliver Hildenbrand
Title: Vice President
By: /s/ JAMES H. BOYLE
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Name: James H. Boyle
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ JIM BRIDWELL
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Name: Jim Bridwell
Title: Vice President
ING CAPITAL LLC
By: /s/ ERWIN THOMET
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Name: Erwin Thomet
Title: Managing Director
By: /s/ G. DOMINICK BELLAMY, JR
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Name: G. Dominick Bellamy, Jr.
Title: Director
ARES III CLO Ltd.
By: ARES CLO Management LLC,
Investment Manager
By: /s/ SETH J. BRUFSKY
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Name: Seth J. Brufsky
Title: Vice President
Ares IV CLO Ltd.
By: Ares CLO Management IV, L.P.,
Investment Manager
By: Ares CLO GP IV, LLC,
Its Managing Member
By: /s/ SETH J. BRUFSKY
----------------------------------
Name: Seth J. Brufsky
Title: Vice President
Ares V CLO Ltd.
By: Ares CLO Management V, L.P.,
Investment Manager
By: ARES CLO GP V, LLC,
Its Managing Member
By: /s/ SETH J. BRUFSKY
----------------------------------
Name: Seth J. Brufsky
Title: Vice President
Ares VI CLO Ltd.
By: Ares CLO Management VI, L.P.,
Investment Manager
By: ARES CLO GP VI, LLC,
Its Managing Member
By: /s/ SETH J. BRUFSKY
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Name: Seth J. Brufsky
Title: Vice President
Ares VII CLO Ltd.
By: Ares CLO Management VII, L.P.,
Investment Manager
By: ARES CLO GP VII, LLC,
Its General Partner
By: /s/ SETH J. BRUFSKY
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Name: Seth J. Brufsky
Title: Vice President
Ares VIII CLO Ltd.
By: Ares CLO Management VIII, L.P.,
Investment Manager
By: ARES CLO GP VIII, LLC,
Its General Partner
By: /s/ SETH J. BRUFSKY
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Name: Seth J. Brufsky
Title: Vice President
GALLATIN FUNDING I LTD.
By: Bear Stearns Asset Management Inc.
as its Collateral Manager
By: /s/ JONATHAN BERG
---------------------------------
Name: Jonathan Berg
Title: Vice President
Signature page to the THIRD AMENDMENT,
dated as of November [__], 2003 (this
"Amendment"), to the Amended and
Restated Credit Agreement, dated as of
July 16, 2003 (as amended by the First
Amendment thereto, dated as of August 7,
2003, and the Amendment and Waiver,
dated as of August 28, and 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
Signature page to the THIRD AMENDMENT,
dated as of November [__], 2003 (this
"Amendment"), to the Amended and
Restated Credit Agreement, dated as of
July 16, 2003 (as amended by the First
Amendment thereto, dated as of August 7,
2003, and the Amendment and Waiver,
dated as of August 28, and 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