PART I FINANCIAL INFORMATION

EX-10.16 8 f92357exv10w16.txt EXHIBIT 10.16 Exhibit 10.16 FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT This FIRST AMENDMENT, dated as of August 7, 2003 (this "Amendment"), 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, 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 1.1 (Defined Terms). Section 1.1 of the Credit Agreement is hereby amended by deleting therefrom the definition of "Applicable Margin" in its entirety and substituting in place thereof the following new definition: "Applicable Margin" means (i) for any Revolving Loan that is a Base Rate Loan, 3.00% per annum, (ii) for any Revolving Loan that is a LIBO Rate Loan or L/C Advance, 4.00% per annum, (iii) for any Term B Loan that is a Base Rate Loan, 2.50% per annum, and (iv) for any Term B Loan that is a LIBO Rate Loan, 3.50% per annum. SECTION 3. Amendment to Section 3.3.3 (Letter of Credit Fee). Section 3.3.3 of the Credit Agreement is hereby amended by deleting the text of such Section 3.3.3 in its entirety and substituting in its place the following new text: "The Borrower agrees to pay to the Agent, for the account of the Revolving Lenders, for each Letter of Credit for the period from and including the date of the issuance of such Letter of Credit to (and including) the date upon which (or on the next succeeding Business Day upon which) such Letter of Credit expires or is returned to the Issuer that issued such Letter of Credit, a fee, in Dollars, on the average daily stated amount of such Letter of Credit (or the Equivalent Amount thereof with respect to Foreign Currency Letters of Credit) calculated at a per annum rate equal to the Applicable Margin for Revolving Loans that are LIBO Rate Loans in effect from time to time. Such fee shall be payable by the Borrower in arrears on each Quarterly Payment Date, and on the date of termination or expiry of the last Letter of Credit outstanding hereunder (for any period then ending for which such fee shall not theretofore have been paid), commencing on the first such date after the issuance of such Letter of Credit." SECTION 4. Effectiveness. This Amendment shall become effective upon fulfillment of the following conditions precedent: (a) the Borrower 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 and each Term B Lender, (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 Amendment. SECTION 5. Representations and Warranties. The Borrower hereby represents and warrants that the representations and warranties contained in the Credit Agreement (except those which expressly speak as of a certain date) 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. SECTION 6. 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 7. 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 8. Governing Law. THIS AMENDMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. SECTION 9. 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 BANK OF NOVA SCOTIA, as Agent By: /s/ Denis P. O'Meara ----------------------------------- Name: Denis P. O'Meara Title: Managing Director BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as Lender By: /s/ Dietmar Rieg ----------------------------------- Name: Dietmar Rieg Title: First Vice President By: /s/ James H. Boyle ----------------------------------- Name: James H. Boyle Title: Vice President CREDIT LYONNAIS NEW YORK BRANCH, as Lender By: /s/ Martin C. Livingston ----------------------------------- Name: Martin C. Livingston Title: Vice President ING CAPITAL LLC, as Lender By: /s/ Erwin Thomet ----------------------------------- Name: Erwin Thomet Title: Managing Director /s/ G. D. Bellany, Jr. Name: G.D. Bellany, Jr. Title: Director UNION BANK OF CALIFORNIA, N.A., as Lender By: /s/ Bryan Read ----------------------------------- Name: Bryan Read Title: Vice President TORONTO DOMINION (TEXAS) INC., as Lender By: /s/ Lynn Chasin ----------------------------------- Name: Lynn Chasin Title: Vice President American Express Certificate Company By: American Express Asset Management Group, Inc. as Collateral Manager By: /s/ Yvonne E. Stevens --------------------------------------------- Name: Yvonne E. Stevens Title: Senior Managing Director Centurion CDO II, Ltd. By: American Express Asset Management Group, Inc. as Collateral Manager By: /s/ Leanne Stavrakis ----------------------------------- Name: Leanne Stavrakis Title: Director-Operations Centurion CDO VI, Ltd. By: American Express Asset Management Group, Inc. As Collateral Manager By: /s/ Leanne Stavrakis ----------------------------------- Name: Leanne Stavrakis Title: Director - Operations ELT LTD., as Lender By: /s/ Ann E. Morris ----------------------------------- Name: Ann E. Morris Title: Authorized Agent FOOTHILL INCOME TRUST, L.P., as Lender By: /s/ Jeff Nikora ----------------------------------- Name: Jeff Nikora 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 HIGHLAND OFFSHORE PARTNERS, L.P., as Lender By: Highland Capital Management, L.P. As General Partner By: /s/ Mark Okada ----------------------------------- Name: Mark Okada Title: Chief Investment Officer Highland Capital Management, L.P. IDS Life Insurance Company By: American Express Asset Management Group, Inc. as Collateral Manager By: /s/ Yvonne E. Stevens --------------------------------------------- Name: Yvonne E. Stevens Title: Senior Managing Director JUPITER LOAN FUNDING LLC, as Lender By: /s/ Ann E. Morris ----------------------------------- Name: Ann E. Morris Title: Asst Vice President ORIX FINANCE CORP. I, as Lender By: /s/ Sheppard H.C. Davis, Jr. ----------------------------------- Name: Sheppard H.C. Davis, Jr. Title: Authorized Representative PROTECTIVE LIFE INSURANCE COMPANY, as Lender By: /s/ Richard J. Bielen ----------------------------------- Name: Richard J. Bielen Title: Sr. VP, CIO & Treasurer SEABOARD CLO 2000, LTD., as Lender, by ORIX Capital Markets, LLC Its Collateral Manager By: /s/ Sheppard H.C. Davis, Jr. ----------------------------------- Name: Sheppard H.C. Davis, Jr. Title: Managing Director SEMINOLE FUNDING LLC, as Lender By: ___________________________________ Name: Title: Sequils-Centurion V, Ltd. By: American Express Asset Management Group, Inc. as Collateral Manager By: /s/ Leanne Stavrakis ----------------------------------- Name: Leanne Stavrakis Title: Director - Operations STANWICH LOAN FUNDING LLC, as Lender By: /s/ Ann E. Morris ----------------------------------- Name: Ann E. Morris Title: Asst Vice President VENTURE CDO 2002, LIMITED By its investment advisor, Barclays Capital Asset Management Limited, By its sub-advisor, Barclays Bank PLC, New York Branch as Lender By: /s/ Martin F. Davey ----------------------------------- Name: Martin F. Davey Title: Director VENTURE II CDO 2002, LIMITED By its investment advisor, Barclays Bank PLC, New York Branch as Lender By: /s/ Martin F. Davey ----------------------------------- Name: Martin F. Davey Title: Director WINGED FOOT FUNDING TRUST, as Lender By: /s/ Ann E. Morris ----------------------------------- Name: Ann E. Morris Title: Authorized Agent AIMCO CDO SERIES 2000-A, as Lender By: /s/ [illegible] ----------------------------------- Name: Title: By: /s/ [illegible] ALLSTATE LIFE INSURANCE COMPANY, as Lender By: /s/ [illegible] ----------------------------------- Name: Title: By: /s/ [illegible] 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. c/o 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 CARLYLE HIGH YIELD PARTNERS II, LTD., as Lender By: /s/ Linda Pace ----------------------------------- Name: Linda Pace Title: Principal CARLYLE HIGH YIELD PARTNERS III, LTD., as Lender By: /s/ Linda Pace ----------------------------------- Name: Linda Pace Title: Principal CARLYLE HIGH YIELD PARTNERS IV, LTD., as Lender By: /s/ Linda Pace ----------------------------------- Name: Linda Pace Title: Principal CARLYLE HIGH YIELD PARTNERS, L.P., as Lender By: /s/ Linda Pace ----------------------------------- Name: Linda Pace Title: Principal CARLYLE LOAN OPPORTUNITY FUND, as Lender By: /s/ Linda Pace ----------------------------------- Name: Linda Pace Title: Principal FRANKLIN CLO I, LIMITED, as Lender By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN CLO II, LIMITED, as Lender By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN CLO III, LIMITED, as Lender By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN CLO IV, LIMITED, as Lender By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN FLOATING RATE DAILY ACCESS FUND, as Lender By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN FLOATING RATE MASTER SERIES, as Lender By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN FLOATING RATE TRUST, as Lender By: /s/ Madeline Lam ----------------------------------- Name: Madeline Lam Title: Vice President GLENEAGLES TRADING LLC, as Lender By: /s/ Ann E. Morris ----------------------------------- Name: Ann E. Morris Title: Asst Vice President 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 KATONAH I, LTD., as Lender By: /s/ Ralph Della Rocca ----------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager KATONAH II, LTD., as Lender By: /s/ Ralph Della Rocca ----------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager KATONAH III, LTD., as Lender By: /s/ Ralph Della Rocca ----------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager KATONAH IV, LTD., as Lender By: /s/ Ralph Della Rocca ----------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager KZH CNC LLC, as Lender By: ___________________________________ Name: Title: KZH CYPRESSTREE-1 LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent KZH ING-2 LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent KZH PONDVIEW LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent KZH RIVERSIDE LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent KZH SOLEIL LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent KZH STERLING LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent KZH WATERSIDE LLC By: /s/ Hi Hua ----------------------------------- Name: Hi Hua Title: Authorized Agent LEHMAN COMMERCIAL PAPER INC., as Lender By: ___________________________________ Name: Title: MAGNETITE IV CLO, LIMITED, as Lender By: /s/ Mark J. Williams ----------------------------------- Name: Mark J. Williams Title: Authorized Signatory MAGNETITE V CLO, LIMITED, as Lender By: /s/ Mark J. Williams ----------------------------------- Name: Mark J. Williams Title: Authorized Signatory NORTHWOODS CAPITAL II, LIMITED, as Lender By: Angelo, Gordon & Co., L.P. as Collateral Manager By: /s/ John W. Fraser ----------------------------------- Name: John W. Fraser Title: Managing Director NORTHWOODS CAPITAL III, LIMITED, as Lender By: Angelo, Gordon & Co., L.P. as Collateral Manager By: /s/ John W. Fraser ----------------------------------- Name: John W. Fraser Title: Managing Director NORTHWOODS CAPITAL, LIMITED, as Lender By: Angelo, Gordon & Co., L.P. as Collateral Manager By: /s/ John W. Fraser ----------------------------------- Name: John W. Fraser Title: Managing Director OAK HILL CREDIT PARTNERS I, LIMITED, as Lender By: Oak Hill CLO Management I, LLC, As Investment Manager By: /s/ Scott D. Krase ----------------------------------- Name: Scott D. Krase Title: Vice President OAK HILL CREDIT PARTNERS II, LIMITED, as Lender By: Oak Hill CLO Management II, LLC, As Investment Manager By: /s/ Scott D. Krase ----------------------------------- Name: Scott D. Krase Title: Vice President OAK HILL SECURITIES FUND II, L.P., as Lender By: Oak Hill Securities GenPar II, L.P. its General Partner By: Oak Hill Securities MGP II, Inc., its General Partner By: /s/ Scott D. Krase ----------------------------------- Name: Scott D. Krase Title: Vice President OAK HILL SECURITIES FUND, L.P., as Lender By: Oak Hill Securities GenPar, L.P. its General Partner By: Oak Hill Securities MGP, Inc., its General Partner By: /s/ Scott D. Krase ----------------------------------- Name: Scott D. Krase Title: Vice President OCTAGON INVESTMENT PARTNERS III LTD., as Lender By: ___________________________________ Name: Title: PACIFICA CDO II, LTD, as Lender By: /s/ Tom Colwell ----------------------------------- Name: Tom Colwell Title: Sr VP SUNTRUST BANK, as Lender By: ___________________________________ Name: Title: TRUMBULL THC, LTD., as Lender By: /s/ Stacey Malek ----------------------------------- Name: Stacey Malek Title: Attorney In Fact